Proposed Rule2022-22608
Update of the Communications Uses Program, Cost Recovery Fee Schedules, and Section 512 of FLPMA for Rights-of-Way
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Published
November 7, 2022
Issuing agencies
Interior DepartmentLand Management Bureau
Abstract
The Bureau of Land Management (BLM) proposes to amend its existing regulations to enhance the communications uses program, update its cost recovery fee schedules, and add provisions governing the development and approval of operations, maintenance, and fire prevention plans and agreements for rights-of-way (ROWs) for electric transmission and distribution facilities (powerlines). Communication uses and powerlines are two of many ROW activities authorized under the Federal Land Policy and Management Act of 1976, as amended (FLPMA). Cost recovery fees apply to most ROW activities authorized under either Title V of FLPMA or the Mineral Leasing Act of 1920, as amended (MLA), as well as to land use authorizations under Title III of FLPMA.
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[Federal Register Volume 87, Number 214 (Monday, November 7, 2022)]
[Proposed Rules]
[Pages 67306-67350]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-22608]
[[Page 67305]]
Vol. 87
Monday,
No. 214
November 7, 2022
Part III
Department of the Interior
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Bureau of Land Management
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43 CFR Parts 2800, 2860, 2880, and 2920
Update of the Communications Uses Program, Cost Recovery Fee Schedules,
and Section 512 of FLPMA for Rights-of-Way; Proposed Rule
Federal Register / Vol. 87, No. 214 / Monday, November 7, 2022 /
Proposed Rules
[[Page 67306]]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 2800, 2860, 2880, and 2920
[LLHQ350000.L51020000.ER0000, 22X]
RIN 1004-AE60
Update of the Communications Uses Program, Cost Recovery Fee
Schedules, and Section 512 of FLPMA for Rights-of-Way
AGENCY: Bureau of Land Management, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Land Management (BLM) proposes to amend its
existing regulations to enhance the communications uses program, update
its cost recovery fee schedules, and add provisions governing the
development and approval of operations, maintenance, and fire
prevention plans and agreements for rights-of-way (ROWs) for electric
transmission and distribution facilities (powerlines). Communication
uses and powerlines are two of many ROW activities authorized under the
Federal Land Policy and Management Act of 1976, as amended (FLPMA).
Cost recovery fees apply to most ROW activities authorized under either
Title V of FLPMA or the Mineral Leasing Act of 1920, as amended (MLA),
as well as to land use authorizations under Title III of FLPMA.
DATES: Please submit comments on or before January 6, 2023. The BLM is
not obligated to consider any comments received after this date in
making its decision on the final rule.
Information Collection Requirements: This document includes
proposed new information collection requirements that must be approved
by the Office of Management and Budget (OMB). If you wish to comment on
the new information collection requirements in this document, please
note that such comments should be sent directly to the OMB, and that
the OMB is required to make a decision concerning the collection of
information contained in this proposed rule between 30 and 60 days
after publication of this document in the Federal Register. Therefore,
a comment to the OMB on the proposed information collection revisions
is best assured of being given full consideration if the OMB receives
it by January 6, 2023.
ADDRESSES:
Mail, personal, or messenger delivery: U.S. Department of the
Interior, Director (HQ-630), Bureau of Land Management, Room 5646, 1849
C St. NW, Washington, DC 20240, Attention: Regulatory Affairs: 1004-
AE60.
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the
Searchbox, enter ``RIN 1004-AE60'' and click the ``Search'' button.
Follow the instructions at this website.
Information Collection Activities
Information Collection Requirements: Written comments and
suggestions on the information collection requirements should be
submitted by the date specified above in the DATES section to
<a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this particular information
collection by selecting ``Currently under Review--Open for Public
Comments'' or by using the search function. If you submit comments on
the information collection burdens, you should provide the BLM with a
copy at one of the addresses shown earlier in this section, so that we
can summarize all written comments and address them in the final
rulemaking. Please indicate ``Attention: OMB Control Number 1004-NEW
(RIN 1004-AE60).'' Comments not pertaining to the proposed rule's
information collection burdens should not be submitted to OMB. The BLM
is not obligated to consider or include in the Administrative Record
for the final rule any comments that are improperly directed to OMB.
FOR FURTHER INFORMATION CONTACT: Erica Pionke via email at
<a href="/cdn-cgi/l/email-protection#5c392c35333237391c3e3031723b332a"><span class="__cf_email__" data-cfemail="2346534a4c4d484663414f4e0d444c55">[email protected]</span></a> or via phone at (202) 570-2624; or Jennifer Noe via
email at <a href="/cdn-cgi/l/email-protection#02686c6d6742606e6f2c656d74"><span class="__cf_email__" data-cfemail="1a7074757f5a787677347d756c">[email protected]</span></a> for information relating to the general
rulemaking process. Individuals in the United States who are deaf,
blind, hard of hearing, or have a speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access telecommunications relay services.
Individuals outside the United States should use the relay services
offered within their country to make international calls to the point-
of-contact in the United States.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Background
A. Introduction
B. Need for the Proposed Rule
C. Statutory Authority
III. Discussion of the Proposed Rule
IV. Procedural Matters
I. Public Comment Procedures
If you wish to comment on this proposed rule, you may submit your
comments to the BLM, marked with the number RIN 1004-AE60, by mail,
personal or messenger delivery, or through <a href="https://www.regulations.gov">https://www.regulations.gov</a>
(see the ADDRESSES section). Please note that comments on this proposed
rule's information collection burdens should be submitted to the OMB as
described in the ADDRESSES section.
Please make your comments on the proposed rule as specific as
possible, confine them to issues pertinent to the proposed rule, and
explain the reason for any changes you recommend. Where possible, your
comments should reference the specific section or paragraph of the
proposal that you are addressing. The comments and recommendations that
will be most useful and likely to influence agency decisions are:
1. Those supported by quantitative information or studies; and
2. Those that include citations to, and analyses of, the applicable
laws and regulations.
The BLM is not obligated to consider or include in the
Administrative Record for the final rule comments that we receive after
the close of the comment period (see DATES) or comments delivered to an
address other than those listed above (see ADDRESSES).
Comments, including names and street addresses of respondents, will
be available for public review at the address listed under ``ADDRESSES:
Mail, personal, or messenger delivery'' during regular business hours
(7:45 a.m. to 4:15 p.m. EST), Monday through Friday, except holidays.
Before including your address, telephone number, email address, or
other personal identifying information in your comment, be advised that
your entire comment--including your personal identifying information--
may be made publicly available at any time. While you can ask us in
your comment to withhold from public review your personal identifying
information, we cannot guarantee that we will be able to do so.
II. Background
A. Introduction
The subject matter of this proposed rule pertains principally to
the BLM's ROW program under 43 CFR parts 2800 and 2880, land use
authorizations under part 2920, and newly proposed part 2860. Although
the discussion in this preamble focuses on ROWs, and most revisions in
the proposed rule relate to ROWs issued under parts 2800 and 2880, and
proposed part 2860, similar revisions are being proposed that would
apply to authorizations under part 2920.
In order for the reader to better understand the following
discussion, as defined in 43 CFR 2801.5, a ``grant'' means any
authorization or instrument (e.g., easement, lease, license, or permit)
BLM issues under Title V of FLPMA. A
[[Page 67307]]
``right-of-way'' means the public lands that the BLM authorizes a
holder to use or occupy under a particular grant or lease.
In this rule, there are three distinct topics being considered. The
first topic is communications uses. The second topic, cost recovery for
the ROW program, addresses the reimbursement of costs, as authorized by
FLPMA (43 U.S.C. 1701 et seq.) or the MLA (30 U.S.C. 185 et seq.), for
the Federal Government's expenses in undertaking ROW work. The third
topic pertains to a recent amendment to add a new Section 512 to Title
V of FLPMA (43 U.S.C. 1772) and addresses the risk of fires from
powerline ROWs on public lands. Each of these topics is discussed in
this preamble; however, proposed changes in regulations pertaining to
these topics are discussed in the section-by-section discussion in the
order in which they are or would be found in the regulatory text. The
proposed revisions should be considered separately. If a court holds
any provision of one part of this proposed rule invalid, it should not
affect the other parts of the proposed rule. Additionally, this
proposed rule adds a severability clause to part 2860 for consistency
with similar existing provisions in parts 2800 and 2880. The BLM is
especially interested in receiving public comments and information
discussing the BLM's proposed updates to its cost recovery fee
categories for Federal ROW work activities, and whether the proposed
regulations implementing the amendment to Title V of FLPMA effectively
capture the statutory requirements.
Communications Uses
In the 21st century, broadband is just as vital as roads and
bridges, electric lines, and sewer systems. At the community level, an
advanced telecommunications network is critical for supporting growth,
allowing small businesses to flourish, creating jobs, strengthening the
first-responder network in remote areas, and making it possible for
these areas to remain competitive in the information-age economy. At
the individual level, access to broadband--and the expertise to use
it--opens the door to employment opportunities, educational resources,
health care information, government services, and social networks.
Although there have been great strides in expanding broadband
services in the United States over the past several years, rural and
Tribal areas lag behind in broadband deployment. Successive
Presidential administrations and Congress have made it a priority to
increase broadband deployment in underserved areas. As the land
management agency with the responsibility to manage the largest
inventory of public land within the Federal Government, the BLM
proposes to amend regulatory provisions for the processing and
monitoring of various ROWs, including those for communications uses.
Currently, there are approximately 1,500 communications sites on BLM
lands. By making it easier for industry to collocate in and on existing
communications facilities or build out new communications
infrastructure on public lands, the BLM can play a strong role in
increasing connectivity throughout the United States. Communications
uses, including fiber optic and telephone, may be collocated within the
6,000 miles of energy corridors administered by the BLM and the U.S.
Forest Service (USFS).
While communications companies, cooperatives, and other private
entities ultimately make decisions on locations to construct and/or
upgrade broadband infrastructure, from communications towers to linear
ROWs for fixed terrestrial broadband access, the Department of the
Interior (Department) administers a significant amount of land as well
as existing permitted infrastructure that can be leveraged for
increased connectivity in rural America.
This proposed rule would revise the existing regulations pertaining
to communications uses by streamlining processes and establishing new
customer service standards. The rule also proposes several technical
changes to clarify the communications regulations.
Cost Recovery
Both the FLPMA and MLA authorize the Federal Government to collect
fees, called cost recovery, for the costs that it expends in processing
a ROW application, taking administrative actions, or monitoring the
construction, operation, and termination of a facility authorized by a
grant. In 2005, the BLM finalized regulations that established a cost
recovery processing and monitoring fee schedule for ROW applications
and grants and an annual process whereby the BLM updates the schedule
to account for changes in the Implicit Price Deflator Gross Domestic
Product (IPD-GDP). The IPD-GDP measures annual changes in the prices of
goods and services produced in the United States. Despite those annual
adjustments, the fee amounts in the current cost recovery schedule do
not presently reflect the costs associated with the work. These costs
include both direct and indirect costs, exclusive of management
overhead costs. The indirect administrative cost rate is determined at
the beginning of each Fiscal Year (FY) and incorporates administrative
support. Annual cost recovery adjustments are made to take effect at
the beginning of each calendar year. BLM managers and employees, when
engaged in either project or program activities where the indirect
administrative cost rate assessment is applicable, must include the
indirect costs when calculating the cost of providing services to
another Federal agency, or ROW or grant applicant.
This proposed rule would increase the cost recovery fees to better
reflect the current costs of processing and monitoring minor category
ROWs. Additionally, minor category ROWs are those that take less than
50 hours under the current rule and would take less than 64 hours under
the proposed rule for a BLM realty specialist to process. This would
allow more applications to qualify as a minor category, eliminating the
labor to establish, monitor, and maintain appropriate accounting of
major category cost recovery accounts on those applications. The BLM
believes this proposed change would increase operational efficiency.
Lastly, this rule proposes several technical changes to 43 CFR parts
2800 and 2880, that would clarify and expedite other ROW tasks.
Section 512 of FLPMA
In March of 2018, Congress amended FLPMA to add Section 512 (43
U.S.C. 1772), which establishes requirements for the BLM and the USFS
to develop and implement final regulations to govern review and
approval of operations, maintenance, and fire prevention plans and
agreements for vegetation and facility management on public lands
within powerline ROWs and on abutting Federal lands. The proposed rule
would revise regulations governing the issuance, renewal, and amendment
of grants for powerlines. The BLM administers nearly 17,000 existing
ROWs for powerlines on public lands. The USFS published a proposed rule
on September 25, 2019 (84 FR 50698), a final rule on July 10, 2020 (85
FR 41387), an amendment to the final rule on August 11, 2020 (85 FR
48475), and draft policy on December 10, 2020 (85 FR 79463) to
implement Section 512 of FLPMA on land managed by USFS.
The BLM's proposed rule would add a definition for hazard tree
consistent with the definition in Section 512, and make other changes
intended to implement Section 512, including its provisions related to
emergency
[[Page 67308]]
conditions. This proposed rule is consistent with the direction in
Section 512(b)(1) for the BLM to issue guidance ``[t]o enhance the
reliability of the electric grid and reduce the threat of wildfire
damage to, and wildfire caused by vegetation-related conditions within,
electric transmission and distribution ROWs and abutting Federal land,
including hazard trees.'' Finally, this proposed rule is also
consistent with the policies issued by each of the BLM State Offices
regarding vegetation management on ROWs.
B. Need for the Proposed Rule
Communications Uses
It is an Administration priority to bring affordable, reliable,
high-speed broadband to every American, including the more than 35
percent of rural Americans who lack access to broadband at minimally
acceptable speeds.
On January 8, 2018, Executive Order (E.O.) 13821 was issued to
promote better access to broadband internet service in rural America.
E.O. 13821 states that ``Americans need access to reliable, affordable
broadband internet service to succeed in today's information-driven,
global economy'' and establishes a policy ``to use all viable tools to
accelerate the deployment and adoption of affordable, reliable, modern
high-speed broadband connectivity in rural America, including rural
homes, farms, small businesses, manufacturing and production sites,
Tribal communities, transportation systems, and healthcare and
education facilities.''
On January 8, 2018, in association with the release of E.O. 13821,
a Presidential Memorandum (Memorandum) was issued to the Secretary of
the Interior (Secretary) entitled, ``Supporting Broadband Tower
Facilities in Rural America on Federal Properties Managed by the
Department of the Interior.'' This Memorandum states that it is the
policy of the executive branch to make Federal assets more available
for rural broadband deployment, with due consideration for national
security concerns. The Memorandum directs the Secretary to ``develop a
plan to support rural broadband development and adoption by increasing
access to tower facilities and other infrastructure assets managed by
the Department of the Interior'' and ``identify assets that can be used
to support rural broadband deployment and adoption.''
On March 23, 2018, the Consolidated Appropriations Act, 2018 was
signed into law. (Pub. L. 115-141, 132 Stat. 348.) Title VI of Division
P of that law, called the ``Making Opportunities for Broadband
Investment and Limiting Excessive and Needless Obstacles to Wireless
Act'' or ``MOBILE NOW Act,'' amended section 6409 of the Middle Class
Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96, 126 Stat. 156
(codified at 47 U.S.C 1455)).
This proposed rule would incorporate the new timing requirements
established by the MOBILE NOW Act into the BLM's regulations. As
amended by the MOBILE NOW Act, 47 U.S.C. 1455(b)(3)(A) states:
In General--Not later than 270 days after the date on which an
executive agency receives a duly filed application for an easement,
right-of-way, or lease under this subsection, the executive agency
shall--
(i) grant or deny, on behalf of the Federal Government, the
application; and
(ii) notify the applicant of the grant or denial.
This proposed rule would provide for the electronic filing of ROW
applications, along with other document submissions. E.O. 13821 states,
``Federal property managing agencies shall use the GSA [General
Services Administration] common form application for wireless service
antenna structure siting developed by the [GSA] Administrator for
requests to locate broadband facilities on Federal property.''
The MOBILE NOW Act also requires the use of a common form for all
applications to install, construct, modify, or maintain communications
facilities (including broadband infrastructure) on federally owned
lands. The BLM provides Standard Form (SF)-299 for applicants seeking
authorization for such purposes on public lands. The GSA, through
collaboration with other agencies, decided the SF-299 would be the
common form for Federal authorization of communications uses. The
proposed rule would require use of the SF-299 for all communications
uses grants, thereby making the proposed rule consistent with the
MOBILE NOW Act.
By updating regulations, the BLM could improve response times and
address the current lack of certainty in the communications uses grant
process, which impacts industry construction schedules and may increase
construction costs.
Cost Recovery
The current ROW regulations, found in 43 CFR parts 2800 and 2880,
became effective June 21, 2005, and require the BLM to reevaluate its
cost recovery fees for each cost recovery category, and the categories
themselves, within 5 years after their effective date and at 10-year
intervals thereafter (43 CFR 2804.15 and 2884.15). The BLM completed
its initial cost recovery reevaluation in December 2010 and has
continued to evaluate data received through the end of FY 2020. These
data show that the existing cost recovery fee collections do not
adequately cover the costs incurred by the BLM for processing and
monitoring ROW applications and grants under both the FLPMA and the
MLA. These proposed regulations would revise the existing cost recovery
fee categories to better reflect updates in technology, the procedures
for processing applications and monitoring grants, and statutes and
regulations relating to the ROW program.
The BLM reviewed current labor and other costs and the time
required to perform work on minor category (currently Categories 1-4)
ROW applications and grants. For applications or grants that would take
the BLM more than 64 hours to process, the BLM would continue to
collect cost recovery under Categories 5 or 6 under this rule. In
addition, this rule proposes several technical changes to the
previously cited regulations that would clarify and expedite completion
of other ROW-related tasks.
This proposed rule, which would update cost recovery processes,
addresses FLPMA grants for ROWs, MLA grants and temporary use permits
(TUPs), and leases, permits, and easements that cross public lands.
General provisions for ROW grants are found in 43 CFR subparts 2801 and
2881.
Most of the steps involved in performing necessary work pertaining
to ROW authorizations, terminations, assignments, etc., are the same
for both FLPMA and MLA ROWs. Typically, unless exempt, an applicant
must reimburse the BLM for its reasonable costs incurred in processing
and monitoring a FLPMA ROW activity, including conducting an
environmental review as required by the National Environmental Policy
Act (NEPA) (42 U.S.C. 4321 et seq.). Unlike FLPMA, under the MLA, an
applicant must reimburse the United States for its actual costs in
completing ROW activities. The Federal Government collects cost
recovery before the BLM begins tasks related to a ROW application or
other ROW-related activity.
The existing ROW cost recovery fee structure is also applicable to
leases, permits, and easements issued under Section 302(b) of FLPMA (43
U.S.C.
[[Page 67309]]
1732) and 43 CFR part 2920. The proposed rule would revise the
regulations for these authorizations, found in Sec. 2920.8(b), to
provide consistency with the revisions made to the cost recovery
provisions proposed to change under this rule in part 2800.
Section 512 of FLPMA
On March 23, 2018, Congress amended the FLPMA by adding Section
512, entitled ``Vegetation Manag[e]ment, Facility Inspection, and
Operation and Maintenance Relating to Electrical Transmission and
Distribution Facility Rights of Way'' (43 U.S.C. 1772). The proposed
rule would add definitions for hazard tree and operations, maintenance,
and fire prevention plan, as well as make other revisions pertaining to
ROW administration to address fire risks on public lands. This proposed
rule would define operations, maintenance, and fire prevention plan as
a plan that provides for long-term, cost-effective, efficient, and
timely inspection, operation, maintenance, and vegetation management of
a ROW and on abutting Federal lands, including management of hazard
trees, to enhance electric reliability, promote public safety, and
avoid fire hazards.
The BLM's mission is to sustain the health, diversity, and
productivity of the public lands for the use and enjoyment of present
and future generations. The BLM administers approximately 245 million
surface acres. According to the National Interagency Fire Center
(NIFC), approximately 109 million acres across the United States
(including both Federal and non-Federal lands) burned in wildfires
between 2006 and 2020. Wildfire is a known risk to and from powerlines
and may be caused by a variety of factors, including vegetation coming
into contact with live powerlines or structural failures of powerline
infrastructure.
Right-of-Way Renewals
Each year, about 500 oil and gas pipeline ROWs and 400 power
transmission and distribution ROWs expire. Due to resources challenges,
over the years the BLM has not kept pace renewing these authorizations.
The updated provisions in the proposed rule would help expedite
processing of expired and expiring ROWs.
C. Statutory Authority
Section 310 of FLPMA (43 U.S.C. 1740) authorizes the Secretary to
promulgate regulations to implement the statute with respect to public
lands. The FLPMA also provides comprehensive authority for the
administration and protection of the public lands and their resources
and directs that the public lands be managed ``under principles of
multiple use and sustained yield,'' unless otherwise provided by law
(43 U.S.C. 1732(a)). A similar authority for promulgating regulations
to implement the MLA's pipeline ROW provisions is found at 30 U.S.C.
185(f).
Both the FLPMA (43 U.S.C. 1734(b) and 1764(g)) and the MLA (30
U.S.C. 185(l)) authorize the BLM and other Federal agencies to require
ROW applicants or holders to reimburse an agency for costs incurred
processing a ROW application and inspecting and monitoring an
authorized ROW.
The Consolidated Appropriations Act, 2018 amended FLPMA by adding a
new Section 512 (43 U.S.C. 1772) and directed the Secretary to
promulgate regulations to implement this new section.
III. Discussion of the Proposed Rule
43 CFR Part 2800 Rights-of-Way Authorized Under FLPMA
Part 2800 of title 43 of the Code of Federal Regulations describes
requirements for general ROWs issued under the FLPMA and MLA. This
proposed rule would revise the cost recovery fee schedule and its
categories. The communications uses provisions found in this part would
either be moved to new part 2860 or removed. Other minor modifications
would correct or clarify existing regulations.
Subpart 2801--General Information
Section 2801.2 What is the objective of the BLM's right-of-way program?
The proposed rule would add the words ``wherever practical'' to the
objective described in Sec. 2801.2(c). This proposed revision would
more closely align the objective of promoting ROWs in common with the
requirement described in Section 503 (43 U.S.C. 1763) of the FLPMA:
In order to minimize adverse environmental impacts and the
proliferation of separate rights-of-way, the utilization of rights-of-
way in common shall be required to the extent practical.
Section 2801.5 What acronyms and terms are used in the regulations in
this part?
In section 2801.5, the proposed rule would move several terms
associated with communications uses to the definitions section for a
new part 2860, which specifically addresses communications uses.
The proposed rule would add the term and a definition of ``complete
application'' to clarify that an application is only complete when it
contains all necessary information found under Sec. 2804.12 and when
the BLM notifies the applicant that it is complete. This is an
important clarification, because the BLM's customer service standards
for processing applications apply only when an application is complete.
This is consistent with existing BLM practice, but the proposed rule
would clarify this requirement.
The proposed rule would add the term and a definition of ``cost
recovery'' to clarify that it is a fee for the processing and
monitoring associated with any proposed or authorized ROW.
The proposed rule would add the term and a definition of ``exempt
from rent'' to clarify when an authorization would be automatically
exempt from rental. This definition is consistent with existing Sec.
2806.14 and proposed Sec. 2866.14.
The proposed rule would revise the definition of the term
``facility'' by removing the last sentence. This part of the definition
applies only to communications uses and would be moved into new Sec.
2861.5, which is the definitions section for the new part 2860 that
would be added by this proposed rule to consolidate provisions that
address communications uses ROWs.
The proposed rule would add the statutory term ``hazard tree,'' and
would define that term consistent with the definition in Section
512(a)(1) of FLPMA. The definition would apply in the limited context
of powerline ROWs subject to newly proposed Sec. 2805.22 and would
help holders of such ROWs to understand what is required of them and
what authorization their ROW provides. (See proposed Sec.
2805.22(b)(3).)
The proposed rule would revise the term ``monitoring'' to be
``monitoring activities'' and would revise the definition of that term.
Monitoring activities would mean those activities the Federal
Government performs to ensure compliance with a ROW grant.
The proposed rule would also revise the explanation of the
monitoring categories for consistency with the proposed revisions to
Sec. 2804.14(a).
The proposed rule would add the term and a definition of
``operations and maintenance,'' which would include activities
conducted by a ROW holder to manage facilities and vegetation within
and adjacent to the ROW boundary.
The proposed rule would add the term and a definition of
``operations, maintenance, and fire prevention plan,'' which would be a
plan submitted to the BLM by the holder of a ROW that
[[Page 67310]]
describes how the holder plans to operate, maintain, and inspect the
applicable ROW and facilities in a cost-effective, efficient, and
timely manner to enhance electric reliability, promote public safety,
and avoid fire hazards, including vegetation in or adjacent to the ROW.
The proposed rule would add the term and a definition of
``processing activities.'' Processing activities would be defined as
work that the Federal Government undertakes to evaluate an application
for a ROW grant. The principal outcome of ROW processing is a
determination of whether to approve the application by issuance of a
grant and identification of appropriate terms and conditions for each
grant. The proposed definition also includes preparation of an
environmental document, compliance with other legal requirements, and
ROW administrative actions, such as assignments, amendments, and
renewals, as different processing activities. This would not be a
change from existing BLM practice but would clarify to the public that
the BLM collects cost recovery for these ROW-related activities. This
proposed definition would explain what activities would generally be
associated with applications found under each cost recovery category.
The proposed rule would revise the definition of ``substantial
deviation'' to clarify that general operation and maintenance
activities, including safety-related activities, are not considered a
substantial deviation. Additionally, the definition would clarify that
activities to prevent or suppress wildfires on lands within or adjacent
to the ROW are not considered a substantial deviation.
The proposed rule would revise the definition of ``transportation
and utility corridor'' to clarify the process for establishing
transportation and utility corridors. Furthermore, the amended
definition would clarify the need for compatible uses.
The proposed rule would add the term and a definition of ``waived
from rent'' to clarify the differences between being ``waived from
rent'' and ``exempt from rent.'' While a holder may be exempted from
rent by statute or regulation, the BLM may also waive a part or all of
a holder's rent (see Sec. Sec. 2806.15 and 2866.15).
The proposed rule would revise the definition of ``zone'' by
removing the number ``eight'' from the description of the number of
zones. The current linear rent schedule for ROWs has 15 zones, so the
current definition is not accurate. Removing the number of zones would
not affect the definition.
Section 2801.9 When do I need a grant?
The proposed rule would remove paragraph (a)(5) of this section and
redesignate paragraphs (a)(6) and (7) as (a)(5) and (6). The paragraph
to be removed requires the public to obtain a grant for systems for
transmitting or receiving electronic signals and other means of
communication. This is a communications uses-specific requirement that
would be removed from part 2800. The uses described in the removed
paragraph (a)(5) would be covered under proposed Sec. 2861.9, which
would describe the circumstances under which a holder must obtain a
communications uses grant.
Subpart 2802--Lands Available for FLPMA Grants
Section 2802.10 What lands are available for grants?
The proposed rule would revise paragraph (c) of this section by
removing the specific requirement to notify the BLM office nearest the
lands you seek to use. The proposed rule instructs you to contact the
BLM to determine the appropriate office with which you should
coordinate. The appropriate office is the BLM office with jurisdiction
over the lands you seek to use, which may not be the same as the BLM
office nearest the lands you seek to use.
Subpart 2803--Qualifications for Holding FLPMA Grants
Section 2803.11 Can another person act on my behalf?
Proposed Sec. 2803.11 would add new provisions that describe the
process for the holder to notify the BLM when another person or entity
is authorized to act on the holder's behalf. This proposed revision
would standardize what documents the BLM would require prior to
allowing another person or entity to act on behalf of the holder. The
BLM expects this change to streamline and expedite processing times for
grant holders.
Proposed paragraph (a) would require the holder to follow several
steps before designating another individual or entity to act on their
behalf. These requirements are necessary for the BLM to understand the
legal relationship between the holder and the third party acting on
their behalf.
Proposed paragraph (a)(1) would explain which BLM office must be
notified. The office with jurisdiction over a grant retains the
official case file and therefore needs the official documentation. This
proposed paragraph would also require the holder to provide a copy of
the power of attorney, if one exists. This is often the instrument used
to authorize another party to act on the holder's behalf. This
requirement is not expected to create any additional burden because the
requested information is simply a copy of documents already possessed
by the holder.
Proposed paragraph (a)(2) would require the holder to provide and
maintain current contact information for their intended agent. This
requirement is important for when the BLM needs to contact the agent.
Without updated and current contact information, processing times can
be delayed. This requirement is anticipated to streamline interactions
between the BLM and holders or their agents.
Proposed paragraph (b) would inform the ROW holder how the BLM
would administer the grant. The BLM would like to simplify the formal
communication process by establishing expectations of responsibility
for any actions taken by an authorized agent. As a result of this
proposed change, the BLM anticipates a reduction in processing times
for requests related to a ROW application.
Section 2803.12 What happens to my grant if I die?
Because an application is not an inheritable interest, the BLM
proposes to change the title of this section from ``What happens to my
application or grant if I die?'' to ``What happens to my grant if I
die?'' Paragraph (a) would also be revised to remove the reference to
applications.
Subpart 2804--Applying for FLPMA Grants
Section 2804.12 What must I do when submitting my application?
In Sec. 2804.12, the BLM proposes to change Sec. 2804.12(a) by
adding a sentence following the first sentence to read: ``The
application must include the applicant's original signature or meet the
BLM standards for electronic commerce.'' This addition would clarify
that when an application for a ROW is filed electronically, a manual
signature may not be required.
Proposed revisions to Sec. 2804.12(a)(4) would require an
applicant to submit the project map and Geographic Information Systems
(GIS) shapefiles for the project, as requested by the BLM. When a BLM
office is conducting an analysis under NEPA, it is not uncommon for the
various resource specialists to request that the applicant provide
project data electronically in a GIS format to ensure that the correct
[[Page 67311]]
area for the proposed project is analyzed. It is likely the individual
or entity responsible for the application already has the proposed
project data in a GIS format, and therefore, the BLM is not adding a
significant burden upon the applicant. This new requirement would be
expected to reduce application processing times by allowing the BLM to
integrate project locations into existing resource datasets and analyze
the potential resource impacts more quickly.
Section 2804.14 What are the fee categories for cost recovery?
The proposed rule would revise the title of this section to read:
``What are the fee categories for cost recovery?'' The proposed cost
recovery categories in this section would apply to both processing and
monitoring activities, whereas the existing title of Sec. 2804.14
refers only to processing fees for grant applications. The BLM proposes
to amend Sec. 2804.14(a) to clarify that cost recovery fees include
both processing and monitoring activities. The BLM proposes to amend
Sec. 2804.14(a) to maintain consistency with the proposed changes in
Sec. 2804.16 that would provide for waiver of, rather than exemption
from, processing and monitoring fees.
The United States, under the FLPMA, generally collects cost
recovery fees from ROW holders and applicants for the reasonable costs
of Federal work related to a ROW. Existing regulations contain a table
of categories for ``processing fees'' under Sec. 2804.14(b) and a
table of ``monitoring fees'' under Sec. 2805.16(a). The monitoring
cost recovery fee schedule, currently found under Sec. 2805.16(a),
would be combined with the category description table located at
existing Sec. 2804.14(b) in a new table in proposed Sec. 2804.14(b).
This revised table would apply to all cost recovery fees.
The BLM determines which category a project falls into based on its
estimate of the total Federal work hours associated with the project.
If the project falls into a minor category, then the applicant is
assessed the fee that corresponds to the appropriate category within
the cost recovery schedule.
Following the methodology of the 2005 rule, the BLM proposes to
update the fee schedule for minor cost recovery categories by
multiplying a calculated average wage which includes both direct and
indirect costs by the midpoint of the hours in each minor category. We
describe that process in detail below.
Proposed Sec. 2804.14(b) would remove the first sentence in Sec.
2804.14(b), which states, ``There is no processing fee if the BLM's
work is estimated to take one hour or less.'' This change would address
the fact that the time spent on ROW work activities generally is not
less than 1 hour. Even simple actions, such as ROW assignments and name
changes, take more than 1 hour to complete, except in very rare
circumstances. The BLM would be interested in hearing from the public
if this would create a burden on the industry for any particular
actions that are frequently performed in under 1 hour.
The BLM conducted a review of ROW cases between FY 2012 and FY
2018, and found that the existing cost recovery schedule, which
provides that projects with up to 50 estimated work hours may be
considered for the ``minor'' cost recovery categories (Categories 1, 2,
3, or 4), should be expanded. The BLM is concerned that, due to the 50-
work-hour limit, more projects are being assigned to Category 6, when
it would be more efficient operationally to increase the ``minor'' cost
recovery limit to 64 hours, or an even 8 workdays. This would allow
more applications to qualify as a minor category, eliminating the labor
to establish, monitor, and maintain appropriate accounting of major
category cost recovery accounts on those applications. The BLM proposes
a new schedule that would adjust the hours thresholds for Categories 1,
2, 3, and 4 to account for the expected type of workload and to set the
minor category work hour cap at 64 hours.
Proposed Category 1 would apply to activities with an estimated
workload of 8 Federal work hours or less. Proposed Category 2 would
apply to activities with an estimated workload of 8 to 24 Federal work
hours. Proposed Category 3 would apply to activities with an estimated
workload of 24 to 40 Federal work hours. Proposed Category 4 would
apply to activities with an estimated workload of 40 to 64 Federal work
hours. By expanding the range of hours in the minor categories, it is
anticipated that the BLM would have fewer major Category
determinations, thereby giving the applicants with moderate projects
some relief from the cost recovery fees and additional workload
associated with such a determination. This proposed rule change would
allow more applications to qualify as a minor category, eliminating the
labor to establish major category cost recovery accounts on those
applications.
The proposed rule would adjust the cost recovery fees for each of
the minor categories to reflect the current reasonable cost of the
associated hours. The process that the BLM uses currently to adjust the
fees is detailed in Section 5 of the Economic and Threshold Analysis
(or ``economic analysis'') that accompanies the proposed rule.
First, the BLM calculated an average wage (including pay additives
and indirect costs) for processing and monitoring activities taking
place from FY 2018 to FY 2020. The calculated average hourly wage over
this three-year period was $67.74.
The BLM then multiplied that average wage by the midpoint of the
work hours in each of the proposed categories to determine the fee
amounts for each category. During previous rulemakings on this subject,
we received comments that most users felt more comfortable if a
midpoint were used, as opposed to another statistical method or
evaluation of the data. With this proposed rule, the BLM would maintain
the use of midpoints for calculating the fees for the minor categories.
The result of this formulation is proposed fees of $271, $1,084,
$2,168, and $3,522 for minor Categories 1, 2, 3, and 4 in the first FY
of adoption, respectively. These fees would be applied in the base year
and adjusted annually for changes in the IPD-GDP, per current practice.
With the proposed increase in cost recovery fees, the BLM believes that
it would be closer to recovering the reasonable costs for activities in
Categories 1 through 4, as FLPMA requires.
The proposed rule would clarify that, for Master Agreements under
Category 5, preliminary application review fees may be included in the
Master Agreement. See the discussion of Sec. 2804.18 in this preamble
for further discussion of proposed changes to Master Agreements.
Under the proposed rule, Category 6 would cover any ROW for which
the BLM estimates that Federal work will exceed 64 hours or which would
result in the preparation of an Environmental Impact Statement (EIS).
The BLM would continue to collect costs for work performed under this
category, which would now specifically include preliminary application
review. The cost recovery fees under both the existing and proposed
category frameworks are shown in Table 1 below.
[[Page 67312]]
Table 1--Existing and Proposed Cost Recovery Schedules
----------------------------------------------------------------------------------------------------------------
Existing cost recovery fee schedule (FY 2022) Proposed cost recovery fee schedule
----------------------------------------------------------------------------------------------------------------
Estimated work Estimated work
Category hours Fee amount Category hours Fee amount
----------------------------------------------------------------------------------------------------------------
1........................... > 1 <= 8....... $136........... 1.............. 8 or less $271.
2........................... > 8 <= 24...... $480........... 2.............. > 8 <= 24 $1,084.
3........................... > 24 <= 36..... $904........... 3.............. > 24 <= 40 $2,168.
4........................... > 36 <= 50..... $1,296......... 4.............. > 40 <= 64 $3,522.
5........................... Varies Determined by 5.............. Varies Determined by
depending on agreement. depending on agreement.
agreement. agreement
6........................... > 50........... All processing 6.............. >64 All processing
and monitoring and monitoring
costs. costs.
----------------------------------------------------------------------------------------------------------------
The adjustments in the fee schedule are driven by two factors.
First, the BLM has proposed to expand the number of hours covered by
Categories 3 and 4. Second, the average labor wage has risen
significantly since the 2005 rule was promulgated.
For example, if the BLM determines your application would take 40
hours to process, currently you would be in Category 4 with an FY 2022
fee of $1,296. Under the proposed rule, the same application would be
in Category 3 with a fee of $2,168. The $2,168 would represent the
midpoint between the range of hours in Category 3 (which is 32 hours),
times the average wage calculation. The BLM coordinates with the USFS
to provide consistency with respect to ROW cost recovery fees.
The proposed rule would revise Sec. 2804.14(c) to update and re-
order the locations where you can obtain a copy of the current cost
recovery category fee schedule.
The proposed rule would revise Sec. 2804.14(d) for consistency
with other proposed changes and to reflect that these cost recovery
categories would apply to all ROW activities including monitoring, not
just the processing of applications.
Section 2804.15 When does the BLM reevaluate the cost recovery fees?
The proposed rule would revise the title of this section to change
``processing and monitoring'' to ``cost recovery.'' This proposed
change is necessary for consistency with the proposed changes to Sec.
2804.14.
Section 2804.16 When will the BLM waive cost recovery fees?
The proposed rule would amend Sec. 2804.16 by revising the title
to read ``When will the BLM waive cost recovery fees?'' rather than
``Who is exempt from paying processing and monitoring fees?'' Proposed
Sec. (a) of this section contains the undesignated introductory text
of existing Sec. 2804.16. This language would be revised to refer to
cost recovery fees, instead of processing and monitoring fees, and
would change the existing definitive exemption from fees to a waiver of
fees that the BLM has discretion to apply or not apply.
Proposed paragraph (a)(1) of this section contains the provision of
existing Sec. 2804.16(a) and would state that ROW cost recovery fees
may be waived if an applicant is a State or local government, and the
application is for governmental purposes that benefit the general
public. Under this proposed paragraph, the waiver would not apply if
charges levied on customers are similar to those of a profit-making
entity. This is different from the existing exception which applies
only when such charges are the ``principal source of revenue.''
The waiver for governmental entities is intended to provide
financial relief to governmental entities seeking to provide a benefit
to the public. However, some of these entities are charging rent beyond
the operating costs to use their facility. The proposed change would
make the waiver unavailable to applicants who would otherwise receive
an authorization at no charge and then collect fees from other users.
Proposed paragraph (a)(2) of this section contains the text from
existing paragraph (b) of this section, which remains unchanged.
Proposed paragraph (a)(3) would allow the BLM to waive cost
recovery fees for Federal agencies for applications belonging to cost
recovery Categories 1 through 4. The current regulations require
Federal agencies to pay cost recovery fees on all ROW applications.
Under an earlier version of the regulations, Federal agencies were
exempt from all cost recovery. The proposed rule strikes a middle path
by allowing the BLM to waive fees for Federal agencies in some, but not
all circumstances. Transferring funds between agencies is costly and
administratively slow. Costs associated with processing the transfer
often exceed the fees being transferred. Therefore, it is not cost
effective for the BLM to collect cost recovery fees from other Federal
agencies for Categories 1 through 4. However, if a Federal agency's
action would take the BLM more than 64 hours to complete, the BLM would
collect cost recovery fees under Category 5 or 6.
The proposed rule adds a new paragraph (b) to this section stating
that the BLM will not waive your fees if you are in trespass. This
paragraph makes existing BLM policy explicit in the regulations.
Section 2804.17 What is a Master Agreement (Cost Recovery Category 5)
and what information must I provide to the BLM when I request one?
The proposed rule would modify Sec. 2804.17(a) to change the
cross-reference from Sec. 2805.16 (currently the table for monitoring
fees) to proposed Sec. 2804.14, which would contain the combined cost
recovery table for all ROW activities.
Section 2804.18 What provisions do Master Agreements contain and what
are their limitations?
Section 2804.18 describes how Master Agreements function. Proposed
Sec. 2804.18(a)(2) would provide that a Master Agreement describes
work to be done by the applicant and the BLM to complete a number of
ROW permitting and monitoring activities. The revisions to this
paragraph would allow Master Agreements to be used for any type of ROW
activity, not just ROW processing. Proposed paragraph (a)(5) would make
this language more consistent with other updates in the proposed rule.
The BLM believes the expanded use of Master Agreements would streamline
processing and monitoring activities. Master Agreements are designed to
consolidate some of the processing and monitoring steps associated with
ROWs,
[[Page 67313]]
including combining budgeting processes into one project work breakdown
structure. Also, many Master Agreements fund or partially fund staffing
of Realty Specialists and other key interdisciplinary teams which can
help expedite processing when funds are not otherwise available (Sec.
2804.22).
Section 2804.18(c) would be amended to say, ``cost recovery fees,''
instead of ``processing and monitoring fees.'' These proposed changes
would be consistent with the expanded definition of a Master Agreement.
Section 2804.19 How will the BLM manage my Category 6 project?
Section 2804.19 would be amended by revising the title from ``How
will BLM process my Processing Category 6 application?'' to read ``How
will the BLM manage my Category 6 project?'' This section would be
revised to explain that cost recovery for Category 6 projects would
include monitoring the grant in addition to processing the application.
The proposed rule would make editorial changes for clarity and
consistency with the other proposed changes.
Proposed Sec. 2804.19(a) would eliminate the requirement for a
work and financial plan for some Category 6 applications at the
discretion of the authorized officer and would instead provide only
that the BLM ``may require'' such plans. Preparing a work and financial
plan takes an average of 6 months to complete. The preparation of a
work and financial plan may not be necessary if both the applicant and
the BLM authorized officer can agree, in writing, on the cost to
process the action. This change would reduce the time associated with
establishing a cost recovery account and improve the Category 6 cost
recovery process, particularly for those actions close to 64 hours.
The proposed rule would add a new paragraph (b)(4) and redesignate
existing paragraphs (b)(4) and (b)(5) as (b)(5) and (b)(6),
respectively. Proposed paragraph (b)(4) of this section would state
that the BLM may collect a deposit before beginning work on a Category
6 project. Currently, when an application falls under Category 6, it
takes an average of 6 months to finalize the details of the agreement,
which includes a work and financial plan. The communications industry
has indicated that when they are charged a Category 6 cost recovery
fee, the deposit is usually between $11,000 and $15,000. The advanced
collection of a deposit would shorten the time for processing an
application by allowing the BLM to begin processing the application
during the 6 months it usually takes to finalize a cost recovery
agreement. If the BLM determines the deposit is not adequate, the
applicant would prepare a work and financial plan to provide additional
funds under a cost recovery agreement.
Section 2804.20 How does the BLM determine reasonable costs for
Category 6 right-of-way activities?
Section 2804.20 would be amended by revising the title from ``How
does BLM determine reasonable costs for Processing Category 6 or
Monitoring Category 6 applications?'' to read ``How does the BLM
determine reasonable costs for Category 6 right-of-way activities?''
The proposed rule would revise the last sentence in the
introductory text of this section, which states, ``While we consider
your written analysis, BLM will not process your Category 6
application.'' Under the proposed rule, if the BLM requests additional
information, we would continue to work on your application while you
are responding to our request, as long as a deposit has been received
by the BLM as provided in proposed Sec. 2804.19(b)(4).
Paragraph (a) of this section describes how the BLM would apply the
factors articulated in Section 304(b) of FLPMA to assess whether costs
are ``reasonable'' for your project, to determine the actual costs owed
to the BLM. The proposed rule would remove the reference to the BLM
State Director and instead refer only to the BLM. This would not change
how the BLM applies these factors, and the decision would still be
appealable under Sec. 2801.10. This proposed change would improve the
cost recovery process by enabling the BLM to make this determination at
the appropriate level on a case-by-case basis.
Section 2804.21 What other factors will the BLM consider in determining
cost recovery fees?
The proposed rule would amend this section by revising the title,
paragraph (a), paragraph (a)(2), and paragraph (a)(7) by removing
references to ``processing and monitoring'' and replacing those
references with more general references to all ROW activities to which
cost recovery applies. This change would be consistent with the changes
described in Sec. 2804.14.
Paragraph (b) of this section describes how the BLM reviews your
analysis of the factors for your project to determine the fees owed to
the BLM. The proposed rule would remove the reference to the BLM State
Director and instead refer only to the BLM.
Section 2804.25 How will the BLM process my application?
The proposed rule would amend paragraph (a)(1) of this section to
add ``unless your fees are exempt.'' This clarifying edit is necessary
because the BLM would not be required to identify your cost recovery
fee if you are exempt from fees.
The proposed rule would redesignate paragraph (c)(2) of this
section as (c)(3) and add a new paragraph (c)(2). Proposed paragraph
(c)(2) of this section would require an operations, maintenance, and
fire prevention plan for all powerline ROWs. Section 512 of FLPMA calls
on the BLM to provide ``owners and operators of electric transmission
or distribution facilities located on public lands . . . with the
option to develop and submit a plan'' (43 U.S.C. 1772(c)(1)). Under
existing Sec. 2804.25(c), the BLM may require applicants to submit a
plan of development (POD) for a ROW, as necessary. The operations,
maintenance, and fire prevention plan may be included in the POD. The
BLM generally requires PODs for large projects but believes the risk of
wildfire associated with powerline ROWs merits an explicit requirement.
The BLM may also require other information to process the
application. Under this proposed rule, the BLM relies on its general
authority to condition ROW grants (43 U.S.C. 1761(b)(1)) to require
applicants to submit operations, maintenance, and fire prevention plans
for all new powerline ROWs. Applications to amend and renew ROWs must
follow the same procedures as applications for new ROWs and, therefore,
would also be subject to the proposed requirement for an operations,
maintenance, and fire prevention plan.
However, if you already have an approved plan that meets the
requirements of proposed Sec. 2805.21(c) (``What is an operations,
maintenance, and fire prevention plan for electric transmission and
distribution rights-of-way?''), then you would not be required to
submit a separate operations, maintenance, and fire prevention plan.
The proposed rule would revise paragraph (d) of this section by
changing ``completed application'' to ``complete application.'' This
proposed revision is consistent with the addition of this term in
proposed Sec. 2801.5. The proposed rule would also revise the table in
paragraph (d) of this section by adding the word ``Master'' in front of
the word ``Agreement.''
[[Page 67314]]
Section 2804.26 Under what circumstances may the BLM deny my
application?
The proposed rule would add paragraph (a)(9) to this section, which
would state that the BLM could deny your ROW application if you fail to
comply with a deficiency notice. The BLM inadvertently removed this
paragraph when this section was amended by a rule to support solar and
wind energy development (see 81 FR 92121, December 19, 2016).
Section 2804.27 What fees must I pay if the BLM denies my application
or if I withdraw my application or I relinquish my grant?
This rule would amend Sec. 2804.27 by revising the title to read
``What fees must I pay if the BLM denies my application or if I
withdraw my application or I relinquish my grant?'' This title revision
would add the relinquishment of a grant to the situations where you may
have to pay fees.
The proposed rule would make minor revisions to paragraphs (a) and
(b) to make the language more consistent with the existing and proposed
regulations. Proposed paragraph (c) would be added to explain how cost
recovery fees would be applied under Category 5 or 6 if a holder
relinquishes their grant. The holder would be liable for all costs the
United States has incurred in connection with the grant, including
relinquishment of the grant. Any outstanding fees would be due to the
BLM within 30 days after the holder receives the bill. The holder would
be refunded the amount of fees paid that the BLM does not use to
process the holder's grant.
This new paragraph is consistent with existing BLM practice but is
necessary to clarify and make explicit the process for relinquishing a
grant and explain to holders what is required of them.
Subpart 2805--Terms and Conditions of Grants
Section 2805.11 What does a grant contain?
The proposed rule would add a new Sec. 2805.11(b) to provide that
grants would include access (ingress and egress) rights to a ROW. The
proposed rule would redesignate existing paragraphs (b) and (c) as
paragraphs (c) and (d), respectively. Many ROWs need access to and from
the ROW from outside the boundaries of the ROW for operations and
maintenance. The proposed rule would add an explicit requirement for
the authorized officer to include rights of ingress and egress in the
grant. Prior to 2005, the regulations had included provisions for
ingress and egress. The BLM is re-introducing these provisions to
address the need for grants to include explicit provision for continued
access throughout the term of the grant. While most projects include
authorization for temporary access for initial construction, if those
temporary access rights expire, then access for future operations and
maintenance requires an additional authorization. The proposed
requirement to include these rights of ingress and egress in the grant
would ensure that the holder can engage in timely and efficient
operation and maintenance of the grant.
The BLM may charge rent appropriate to the nature of these access
routes outside the ROW boundary. For instance, where ROW access is
facilitated by existing routes that are open to public use, rent would
likely not be appropriate. By contrast, the BLM may charge appropriate
rent for newly constructed roads or overland travel to authorized ROWs
on public lands. See the preamble discussion of the proposed revisions
to Sec. 2806.15(b)(3) for more information.
Section 2805.12 With what terms and conditions must I comply?
Existing paragraph (a)(4) of this section requires holders to do
everything reasonable to prevent and suppress wildfires on or within
the immediate vicinity of the ROW. The language has been changed from
``immediate vicinity'' to ``adjacent to'' to be consistent with the
proposed update to the definition of ``substantial deviation.''
Section 2805.12(a)(8)(vi) requires holders to ensure that they
construct, operate, maintain, and terminate facilities in accordance
with the authorization, including the approved POD. The proposed rule
would add ``any approved operations, maintenance, and fire prevention
plan'' to incorporate the new requirements described in this proposed
rule.
Section 2805.12(c)(5) and paragraph (d)(3) would be revised to
provide that conditions associated with damaged and abandoned
facilities that threaten human health or safety are not subject to the
existing requirement that the BLM wait 3 months before requiring the
holder to act. The BLM has experienced situations where grant holders
create human health and safety hazards by abandoning facilities and
equipment within their authorized ROW area. If a holder's use is posing
a health or safety hazard to the public, the BLM should be empowered to
address it as soon as possible.
Section 2805.14 What rights does a grant provide?
The proposed rule would revise the title from ``What rights does a
grant convey?'' to ``What rights does a grant provide?'' to eliminate
any implication that a grant gives ownership rights.
The proposed rule would revise Sec. 2805.14(d) by removing the
word ``minor'' from the description of trimming, pruning, and removal
of vegetation and by adding an allowance to undertake those activities
to ``protect public health and safety.'' The term ``minor'' has caused
confusion for the holders and is imprecise. The added allowance gives
the BLM leeway to allow activity aimed at protecting public health and
safety.
These proposed revisions provide the necessary detail for the
holder as to what vegetation management they can and must do to operate
and maintain their ROW or facility, including what does and does not
constitute a substantial deviation.
Section 2805.14(e) would be revised to allow the holder to use
vegetation removed during maintenance of the ROW. The use of existing
vegetation would reduce non-native species intrusion and would expedite
maintenance by the holder. The paragraph would also be revised to align
with FLPMA's statutory provision that stone, soil, or vegetation may be
used only if any necessary authorization to remove or use such
materials has been obtained pursuant to applicable laws (43 U.S.C.
1764(f)). The BLM is specifically seeking comment on the practical
impact of this proposed change.
Section 2805.15 What rights does the United States retain?
The proposed rule rephrases paragraph (a) of this section to
address the nature of BLM's need for access to the lands and facilities
covered by an authorization. Some authorizations may be for the use of
a facility, while others would be for use of an area on the public
lands. The proposed rule would retain the requirement for the BLM to be
provided access to and within the lands or facilities.
Proposed Sec. 2805.15(e) would add language to clarify that after
a grant is executed, any modification of its terms and conditions
generally requires the BLM to issue a new or amended ROW grant. The BLM
conducts analyses, including under NEPA, before issuing a grant, and
any changes to the terms or conditions of a grant would require the BLM
to complete a new decision-making process, and may require the
[[Page 67315]]
BLM to conduct additional analyses. Any such new decision must comply
with applicable laws, including NEPA, and could require the BLM to
complete a new environmental analysis, utilize an existing
environmental analysis, or rely on a categorical exclusion.
Under proposed paragraph (f) of this section, the BLM could
terminate an authorization for non-compliance. Existing Sec. 2805.12
describes the terms and conditions that a grant holder must comply with
and provides that the BLM could terminate a grant for non-compliance.
This proposed paragraph would reinforce that this is a potential
outcome.
Under proposed paragraph (g) of this section, the BLM could require
a holder to submit financial documents related to a holder's
authorization. This would be consistent with the requirements of
existing Sec. 2805.12(a)(15).
Section 2805.16 If I hold a grant, what cost recovery fees must I pay?
The proposed rule would amend Sec. 2805.16 by changing the word
``monitoring'' in the title to ``cost recovery'' such that the title
would read, ``If I hold a grant, what cost recovery fees must I pay? ''
The section would also be amended by revising Sec. 2805.16(a), adding
a new Sec. 2805.16(b), revising current Sec. 2805.16(b), and
redesignating it as paragraph (c).
As previously discussed, the proposed rule would remove the
monitoring cost recovery fee table currently located under Sec.
2805.16(a). The proposed rule would add a sentence referring the reader
to Sec. 2804.14(b), where they could find the proposed cost recovery
table.
Under new Sec. 2805.16(b), the cost recovery fee schedule for
Categories 1 through 4 would be updated on an annual basis based on the
previous year's change in the IPD-GDP, and the fees for Category 5
would be updated according to the given project's Master Agreement.
Proposed Sec. 2805.16(c), which contains the provisions of
existing Sec. 2805.16(b), would explain where to obtain a copy of the
current year's cost recovery fee schedule. The proposed rule would
provide updated contact information for the holder to request the
schedule from the BLM's Division of Lands, Realty and Cadastral Survey.
Section 2805.21 What is an operations, maintenance, and fire prevention
plan for electric transmission and distribution and other rights-of-
way?
Proposed Sec. 2805.21 would codify many of the provisions of
Section 512 of FLPMA in the BLM regulations. Section 512(c) of FLPMA
describes the requirements for vegetation management, facility
inspection, and operations and maintenance plans. This proposed Sec.
2805.21 describes the requirements for ``operations, maintenance, and
fire prevention plans,'' which are consistent with the requirements of
the plans described in Section 512 of FLPMA.
Under proposed Sec. 2804.25(c)(2) of the proposed rule, and as
reflected in proposed paragraph (a)(1), operations, maintenance, and
fire prevention plans would be required for all new, renewed, or
amended electric transmission and distribution ROWs. In addition, under
proposed paragraph (a)(2), such plans may be submitted to the BLM on a
voluntary basis by holders of existing electric transmission and
distribution ROWs. Operations, maintenance, and fire prevention plans
would be advantageous to both the BLM and the ROW holder by better
defining authorized activities, schedules for maintenance, and wildfire
risk reduction measures, and by introducing limits on a ROW holder's
liability under the specific circumstances described in this section.
Proposed paragraph (b) of this section refers to Electric
Reliability Organization (ERO) standards and would provide that those
standards may be incorporated into operations, maintenance, and fire
prevention plans developed under this section. The Energy Policy Act of
2005 created the ERO: an independent, self-regulating entity that
enforces mandatory electric reliability rules on all users, owners, and
operators of the nation's transmission system. The North American
Electric Reliability Corporation (NERC) develops and enforces
reliability standards for North America and is the ERO. NERC
reliability standards define the reliability requirements for planning
and operating the North American bulk power system. These standards
only apply to holders who are a part of a bulk power system, and
holders subject to these standards may incorporate them into their
operations, maintenance, and fire prevention plan. The ERO reliability
standards developed by NERC are requirements the holder must meet for
operating and maintaining the ROW and facility, such as frequency of
inspections and minimum distance of vegetation clearances from
powerlines. Incorporating these industry-wide standards into the
operations, maintenance, and fire prevention plan a holder submits to
the BLM would help to provide consistency between the BLM and USFS.
Proposed paragraph (c) of this section describes the requirements
for operations, maintenance, and fire prevention plans, consistent with
Section 512(c) of FLPMA and with the USFS final rule implementing
Section 512. Under proposed paragraph (c)(1) of this section,
operations, maintenance, and fire prevention plans must identify the
applicable facilities to be maintained.
Proposed paragraph (c)(2) of this section would require the
operations, maintenance, and fire prevention plan to account for the
holder's own operations and maintenance plans for the applicable
facilities. Many ROW holders have existing, internal plans for their
operations and maintenance that they have not previously been required
to submit to the BLM for approval, including those who must comply with
ERO standards. The holder may be able to submit these existing internal
plans to satisfy the BLM's operations, maintenance, and fire prevention
plan requirements. A holder would not need to submit a new operations,
maintenance, and fire prevention plan if their existing plan meets the
requirements of this section.
Proposed paragraph (c)(3) of this section would require that the
plan describe how a holder would operate and maintain the ROW and
facility, including for vegetation management. These operations,
maintenance, and fire prevention methods may also be those required to
comply with applicable law, including fire prevention measures, safety
requirements, and reliability standards established by the ERO. While
the ERO describes the standards that must be met, the holder must
describe in the operations, maintenance, and fire prevention plan how
they plan to meet those standards.
Under proposed paragraph (c)(4) of this section, an operations,
maintenance, and fire prevention plan would be required to include
schedules for the holder to notify the BLM about non-emergency
maintenance, including when they must seek approval from the BLM and
when the BLM must respond to that request. Non-emergency maintenance
will be further discussed in the preamble for proposed Sec. 2805.22.
Proposed paragraph (c)(5) of this section would require the
operations, maintenance, and fire prevention plan to describe processes
for identifying changes in conditions and modifying the approved
operations, maintenance, and fire prevention plan, if necessary. Either
the BLM or holder could determine that the conditions in the ROW, which
may include environmental conditions or
[[Page 67316]]
accessibility, have changed. The operations, maintenance, and fire
prevention plan would be required to describe how the BLM and holder
would communicate and initiate any necessary plan modifications. (See
the preamble discussion for proposed paragraph (e) of this section.)
Proposed paragraph (c)(6) of this section would require the
operations, maintenance, and fire prevention plan to include provision
for removal and disposal of cut trees and branches, including plans for
sale of forest products.
Under proposed paragraph (d) and consistent with Section
512(c)(4)(A) of FLPMA, the BLM would, to the extent practicable, review
and approve the operations, maintenance, and fire prevention plan
within 120 days of receiving the plan.
Proposed paragraph (e) of this section describes how the BLM would
notify the holder that an operations, maintenance, and fire prevention
plan requires modifications. The BLM would provide advance reasonable
notice to the holder that a modification is necessary, and the holder
would submit the proposed modification to the BLM. The BLM would, to
the maximum extent practicable, review and approve the proposed
operations, maintenance, and fire prevention plan modification in the
same 120-day timeframe that applies to approval of new plans. This
timeframe would be consistent with the requirements of Section 512 of
FLPMA.
Under paragraph (e)(4) of this section, a holder may, while a
proposed plan modification is pending approval, continue to operate and
maintain the ROW or facility in accordance with the approved
operations, maintenance, and fire prevention plan, as long as the
activity does not adversely affect the identified condition that
necessitates the plan modification. Although a plan modification may be
required, the BLM does not intend for operations and maintenance to be
unnecessarily delayed in other areas of the ROW that are not impacted.
Proposed paragraph (f) of this section describes how certain
holders may enter into an agreement with the BLM in lieu of an
operations, maintenance, and fire prevention plan. An agreement must
contain the same general requirements of operations, maintenance, and
fire prevention plans described in this section. Agreements would need
to include schedules, as described in proposed paragraph (c)(4) of this
section and would be subject to the same modification requirements of
proposed paragraph (e) of this section.
Proposed paragraph (g) of this section describes the criteria that
a holder would be required to meet to be eligible to enter into an
agreement. A holder could enter into an agreement with the BLM if they
are not subject to the ERO reliability standards or if they sold less
than 1,000,000 megawatt hours of electric energy for purposes other
than resale during each of the 3 calendar years prior to enactment of
Section 512 of FLPMA. These eligibility requirements are established by
Section 512(d)(1) of FLPMA and would generally apply to rural electric
cooperatives and other small entities.
Section 512(d)(2)(A) of FLPMA requires the Secretary to ensure that
the minimum requirements of these agreements ``reflect the relative
financial resources of the applicable owner or operator compared to
other owners or operators of an electric transmission or distribution
facility.'' The BLM is seeking comments from the public on how these
agreements should be different from operations, maintenance, and fire
prevention plans and how the BLM can ensure that it meets the
requirements of Section 512(b)(2)(A).
Section 2805.22 Special Provisions for Vegetation Management for
Electric Transmission and Distribution Rights-of-Way
Proposed Sec. 2805.22 describes how holders could conduct
vegetation management related activities and distinguishes between
emergency and non-emergency conditions. This proposed section would
implement the requirements of Section 512(c) and (e) of FLPMA.
Proposed paragraph (a) of this section describes the conditions
that would be considered Emergency Conditions and what the holder would
be allowed to do during Emergency Conditions without immediate
notification to the BLM. An Emergency Condition would be if vegetation
or hazard trees have contacted, or present an imminent danger of
contacting, an electric transmission or distribution line. The proposed
rule specifies that this threat could arise from vegetation or a hazard
tree within or adjacent to a transmission line ROW. Under proposed
paragraph (a)(1) of this section, holders could prune or remove the
vegetation or hazard tree to avoid the disruption of electric service
and to eliminate immediate fire and safety hazards. Proposed paragraph
(a)(2) would require the holder to notify the BLM within one calendar
day after conducting these activities.
Proposed paragraph (b) of this section describes Non-Emergency
Conditions for which the holder of a powerline ROW could conduct
vegetation management activities. The holder could conduct activities
without prior approval from the BLM if they are in compliance with the
terms and conditions of the ROW grant, Sec. Sec. 2805.12(a)(4) and
2805.14(d), and any BLM approved operations, maintenance, and fire
prevention plan.
Proposed paragraph (b)(1) of this section describes the
circumstances under which a holder would need to request approval to
conduct vegetation management activities. Under proposed paragraph
(b)(1)(i), a holder would need to seek approval from the BLM if the
operations, maintenance, and fire prevention plan specifically requires
prior approval. Prior approval for an activity may be required in an
operations, maintenance, and fire prevention plan if the activity could
have cultural or environmental impacts.
Prior approval would be required under proposed paragraph
(b)(1)(ii) if the activity is not described in an approved operations,
maintenance, and fire prevention plan. Proposed paragraph (b)(2) of
this section describes how the BLM would be required to respond to
requests under paragraph (b)(1) of this section. If the BLM does not
respond to a request within the timeframe described in an approved
operations, maintenance, and fire prevention plan, and the vegetation
management activity is consistent with the holder's approved
operations, maintenance, and fire prevention plan, a holder may proceed
with the vegetation treatment activities. This provision would enhance
the approval process for vegetation management activities to further
support the goals of reducing fire risk.
Holders who do not have a BLM approved operations, maintenance, and
fire prevention plan would not be affected by paragraphs (b)(1) or
(b)(2) of this section, which describe how activities would be required
to comply with operations, maintenance, and fire prevention plans.
Existing holders would not have an operations, maintenance, and fire
prevention plan until they amend or renew their ROW grant, or until
they voluntarily submit an operations, maintenance, and fire prevention
plan. The terms and conditions of some existing grants do not
sufficiently describe the vegetation management activities that a
holder may take. In the absence of an operations, maintenance, and fire
prevention plan, holders would be required to comply with the terms and
conditions of the grant and Sec. Sec. 2805.12(a)(4) and 2805.14(d).
Even when not required,
[[Page 67317]]
holders would be encouraged to submit operations, maintenance, and fire
prevention plans for existing ROWs to the BLM to improve coordination
regarding vegetation management and wildfire risk reduction.
Proposed paragraph (c) mirrors Sec. 2805.12(a)(4) but adds
specific examples of reasonable actions that could be taken by the
holder, including pruning or removal of vegetation and cooperation with
the BLM to investigate, suppress, or respond to wildfires.
Subpart 2806--Annual Rents and Payments
Section 2806.13 What happens if I do not pay rents and fees or if I pay
the rents or fees late?
In proposed Sec. 2806.13(e), the provisions for uncollected or
under-collected rent would be modified by removing paragraphs (e)(1),
(e)(2), and (e)(3). The current regulations unnecessarily restrict the
BLM to only collecting uncollected or under-collected rent in certain
circumstances. The proposed rule would remove those conditions, and the
BLM would be able to collect any rents and fees due to the United
States.
In new proposed Sec. 2806.13(h), the BLM is explicitly providing
that rent would be due regardless of whether a courtesy bill has been
sent or received. This addition would clarify current BLM practice to
the public.
Section 2806.14 Under what circumstances am I exempt from paying rent?
In proposed Sec. 2806.14(a)(4), the provisions governing
communications sites would be deleted. The exemptions described in
proposed Sec. 2866.14(b) encapsulate the language that would be
removed from Sec. 2806.14.
Section 2806.15 Under what circumstances may BLM waive or reduce my
rent?
The BLM received feedback from customers about inconsistencies in
how waivers or reductions in rent are approved. Therefore, proposed
Sec. 2806.15(b) would clarify that a BLM State Director is the
authorizing official with respect to rental reductions and waivers.
Under existing paragraph (b)(3) of this section, the BLM could
reduce or waive rent if a holder has a ROW in connection with the grant
at issue and for which the United States receives compensation.
Proposed paragraph (b)(3) of this section would replace the existing
provision to allow for a reduction or waiver of rent if a holder's
grant describes the use of existing routes outside of the ROW that are
used to access the ROW. These proposed revisions are consistent with
proposed Sec. 2805.11(b), which would require the grant to include and
identify new and/or existing routes that would be used for ingress and
egress. The BLM could charge rent appropriate to the nature of these
access routes. For instance, where ROW access is facilitated by
existing routes that are open to public use, rent would likely not be
appropriate. By contrast, the BLM could charge appropriate rent for
roads to ROWs on public lands newly constructed by a holder. See the
preamble discussion of 2805.11 for more information.
Existing Sec. 2806.15(c) would be redesignated as Sec.
2806.15(b)(5) and revised to maintain consistency with the edits made
in Sec. 2806.15(b). With the added reference to the BLM State Director
in proposed paragraph (b) of this section, it is appropriate to
redesignate existing paragraph (c) as proposed paragraph (b)(5).
Waiving or reducing rent under paragraphs (b)(1) through (b)(5), as
revised by this proposed rule, would be at the discretion of the BLM
State Director. This proposed revision is consistent with existing BLM
practice.
Section 2806.20 What is the rent for a linear right-of-way grant?
The proposed section would revise paragraph (c) to update the
contact address of the BLM and highlight availability of the Per Acre
Rent Schedule on the BLM website.
Sections 2806.30 Through 2806.44
The proposed rule would remove Sec. Sec. 2806.30 through 2806.44,
including the header ``COMMUNICATION SITE RIGHTS-OF-WAY'' between
Sec. Sec. 2806.26 and 2806.30. Many of the requirements of these
sections would be moved into new part 2860, which would consolidate all
requirements for communications uses. Any substantive changes to those
requirements are discussed in the sections of this preamble focused on
new part 2860. The following table shows where the requirements of
existing Sec. Sec. 2806.30 through 2806.44 can be found in this
proposed rule.
Table 2--Current Subpart 2806 vs. Proposed Subpart 2866
----------------------------------------------------------------------------------------------------------------
Current section Current title Proposed section Proposed title
----------------------------------------------------------------------------------------------------------------
Subpart 2806...................... Annual Rents and Payments. Subpart 2866......... Annual Rents and
Payments.
Sec. 2806.30.................... What are the rents for Sec. 2866.30....... What are the rents for
communication site rights- Communications Uses?
of-way?
Sec. 2806.31.................... How will BLM calculate Sec. 2866.31....... How will the BLM
rent for a right-of-way calculate rent for
for communication uses in Communications Uses in
the schedule? the schedule?
Sec. 2806.32.................... How does BLM determine the Sec. 2866.32....... How does the BLM
population strata served? determine the population
strata served for your
facility?
Sec. 2806.33.................... How will BLM calculate the Sec. 2866.33....... How will the BLM
rent for a grant or lease calculate the rent for a
authorizing a single use single use communication
communication facility? facility?
Sec. 2806.34.................... How will BLM calculate the Sec. 2866.34....... How will the BLM
rent for a grant or lease calculate the rent for a
authorizing a multiple- grant for a multiple-use
use communication communication facility?
facility?
Sec. 2806.35.................... How will BLM calculate Sec. 2866.35....... How will the BLM
rent for private mobile calculate rent for
radio service (PMRS), private mobile radio
internal microwave, and service (PMRS), internal
``other'' category uses? microwave, and ``other''
category uses?
Sec. 2806.36.................... If I am a tenant or Sec. 2866.36....... If I am a tenant or
customer in a facility, customer in a facility,
must I have my own grant must I have my own grant
or lease and if so, how and if so, how will this
will this affect my rent? affect my rent?
[[Page 67318]]
Sec. 2806.37.................... How will BLM calculate Sec. 2866.37....... How will the BLM
rent for a grant or lease calculate rent for a
involving an entity with grant involving an
a single use (holder or entity with a single use
tenant) having equipment (holder or tenant)
or occupying space in having equipment or
multiple BLM-authorized occupying space in
facilities to support multiple BLM-authorized
that single use? facilities to support
that single use?
Sec. 2806.38.................... Can I combine multiple Sec. 2866.38....... Can I combine multiple
grants or leases for grants for facilities
facilities located on one located at one site into
site into a single grant a single grant?
or lease?
Sec. 2806.39.................... How will BLM calculate Sec. 2866.39....... How will the BLM
rent for an lease for a calculate rent for an
facility manager's use? grant for a facility
manager's use?
Sec. 2806.40.................... How will BLM calculate Sec. 2866.40....... How will the BLM
rent for a grant or lease calculate rent for an
for ancillary authorization for
communication uses ancillary Communications
associated with Uses associated with
communication uses on the Communications Uses on
rent schedule? the rent schedule?
Sec. 2806.41.................... How will BLM calculate Sec. 2866.41....... How will the BLM
rent for communication calculate rent for
facilities ancillary to a communications
linear grant or other use facilities ancillary to
authorization? a linear grant or other
use authorization?
Sec. 2806.42.................... How will BLM calculate Sec. 2866.42....... How will the BLM
rent for a grant or lease calculate rent for
authorizing a Communications Uses
communication use within within a federally owned
a federally-owned communications facility?
communication facility?
Sec. 2806.43.................... How does BLM calculate Sec. 2866.43....... How does the BLM
rent for passive calculate rent for
reflectors and local passive reflectors and
exchange networks? local exchange networks?
Sec. 2806.44.................... How will BLM calculate Sec. 2866.44....... How will the BLM
rent for a facility calculate rent for a
owner's or facility facility owner's or
manager's grant or lease facility manager's grant
which authorizes which authorizes
communication uses? Communications Uses?
----------------------------------------------------------------------------------------------------------------
Section 2806.52 Rents and Fees for Solar Energy Development Grants
The proposed section would revise paragraphs (a)(6) and (b)(2) to
update the contact address of the BLM and highlight availability of the
current solar energy acreage rent schedule and the current MW rate
schedule for solar energy development on the BLM website.
Section 2806.62 Rents and Fees for Wind Energy Development Grants
The proposed section would revise paragraphs (a)(7) and (b)(2) to
update the contact address of the BLM and highlight availability of the
current wind energy acreage rent schedule and the current MW rate
schedule for wind energy development on the BLM website.
Subpart 2807--Grant Administration and Operation
Section 2807.12 If I hold a grant, for what am I liable?
The proposed rule would redesignate existing paragraph (g) of this
section as paragraph (h) and add a new paragraph (g). Proposed
paragraph (g) of this section would codify the liability provisions at
Section 512(g) of FLPMA and describe when the BLM may not impose strict
liability.
Under proposed Sec. 2805.21 of the proposed rule, the BLM would
require operations, maintenance, and fire prevention plans for all new,
renewed, or amended electric transmission and distribution ROWs; plans
could be submitted to the BLM on a voluntary basis by holders of
existing electric transmission and distribution ROWs and other types of
ROWs. Operations, maintenance, and fire prevention plans would be
advantageous to both the BLM and the ROW holder by better defining
authorized activities, schedules for maintenance, and wildfire risk
reduction measures, and by introducing limits on the ROW holder's
liability under the specific circumstances described in this section.
Under proposed paragraph (g)(1) of this section, the BLM could not
impose strict liability for damages or injuries resulting when the BLM
unreasonably withholds or delays approval of an operations,
maintenance, and fire prevention plan. Under paragraph (g)(2) of this
section, the BLM could not impose strict liability if the BLM fails to
adhere to an applicable schedule in an approved operations,
maintenance, and fire prevention plan or agreement.
Section 2807.17 Under what conditions may the BLM suspend or terminate
my grant?
The proposed rule would amend Sec. 2807.17(b)(2) to change the
word ``terminate'' to ``relinquish.'' This change would make this
section consistent with changes to Sec. 2886.17 and would align with
the nomenclature that the BLM uses when processing ROWs. The proposed
rule would also add Sec. 2807.17(b)(3) to allow the BLM to terminate a
ROW grant when a court terminates or requires the BLM to terminate the
ROW. The proposed rule would redesignate paragraph (b)(3) as paragraph
(b)(4).
Section 2807.20 When must I amend my application, seek an amendment of
my grant, or obtain a new grant?
The proposed rule would amend paragraph (b) of this section by
replacing ``processing and monitoring fees'' with ``cost recovery
fees,'' for consistency with other revisions in this proposed rule.
Section 2807.20(d) explains that pre-FLPMA (before Oct. 21, 1976)
grants cannot be amended, renewed, or reinstated.
Section 706 of the FLPMA repealed numerous laws to the extent they
applied to the issuance of ROWs by the BLM. Once a law has been
repealed, the BLM can no longer approve any actions under the repealed
law. The proposed rule would combine existing language from different
parts of paragraph (d), including paragraph (d)(2), as proposed
paragraph (d)(1) and would revise the text to clarify that, when a
holder seeks to amend a pre-FLPMA grant, the BLM would retain the
holder's pre-FLPMA ROW for the portion of the holder's ROW not affected
by the holder's amendment application unless the
[[Page 67319]]
holder agrees to accept a wholly new and comprehensive grant of the ROW
under FLPMA.
Proposed paragraph (d)(2) would require a new application and grant
for expiring authorizations. Proposed paragraph (d)(3) would require a
new application and grant if a pre-FLPMA authorization is terminated
due to non-compliance. Finally, existing paragraph (d)(1) is
redesignated as proposed paragraph (d)(4) and notes that the BLM would
issue any new authorization under the authority of the FLPMA and
explains that the new authorization may have the same terms and
conditions and annual rents as the original grant.
Section 2807.22 How do I renew my grant?
The proposed rule would establish new customer service standards
for the BLM for renewal applications. The proposed rule would modify
paragraph (f) of this section to establish a customer service standard
of 60 days for the BLM to review an application for a renewal to
determine if that application has been timely submitted and is complete
and to notify the applicant in writing of the BLM's determination. If
the BLM determines that a renewal application was timely submitted and
is complete, then its written notice would confirm that, until the BLM
issues a decision on the renewal application, the holder's existing
grant would remain valid, provided that the holder of the authorization
remains in compliance, including with rent and bonding obligations.
The proposed rule would add a new paragraph (h) to this section to
provide grant holders a clear understanding of when their renewal
applications would be subject to the BLM's customer service standards.
If grant holders do not comply with the existing requirement to submit
their application at least 120 days before their grant expires, the BLM
would not be held to the customer service standards for processing the
application.
This proposed paragraph would not be a substantive change from
existing practice.
Subpart 2809--Competitive Process for Leasing Lands for Solar and Wind
Energy Development Inside Designated Leasing Areas
Section 2809.19 Applications in Designated Leasing Areas or on Lands
That Later Become Designated Leasing Areas
The proposed rule would revise paragraph (d) of this section by
updating a reference to a section that would be redesignated by this
proposed rule. The reference to Sec. 2805.11(b)(2) would be revised to
read Sec. 2805.11(c)(2). This change is necessary for consistency with
proposed revisions to Sec. 2805.11.
43 CFR Part 2860 Communications Uses
The proposed rule would establish part 2860, Communications Uses.
This proposed part would explain the requirements for communications
uses grants and consolidate all communications use-specific provisions
into one location. The requirements of part 2800 would apply to
communications uses grants, unless otherwise described in this new
part. Some sections in proposed part 2860 would contain the
requirements of sections that would be removed from part 2800. Some
sections in 2860 have a direct parallel to existing part 2800 but
contain additional requirements that would apply specifically to
communications uses. This preamble describes how the proposed rule
differs from existing requirements. Proposed subparts 2861 through 2865
and 2868 are based on the requirements in existing subparts 2801
through 2805 and 2808, respectively, but contain additional
communications use requirements. Table 3 shows the relationship between
proposed subparts 2861 through 2865 and 2868 and existing subparts 2801
through 2805 and 2808. Most of the requirements pertaining to
communications uses in existing subpart 2806 would be moved to proposed
subpart 2866. Table 4 shows the relationship between proposed subpart
2866 and existing subpart 2806. This preamble describes proposed new or
revised provisions. Provisions not discussed are substantially similar
to their existing counterpart.
Table 3--Sections of the Proposed Rule Supplementing the 2800 Regulations for Communications Uses
----------------------------------------------------------------------------------------------------------------
Current section Current title Proposed section Proposed title
----------------------------------------------------------------------------------------------------------------
Subpart 2801...................... General Information....... Subpart 2861......... General Information.
New Section....................... Sec. 2861.1........ What requirements of part
2800 apply to my grant?
Sec. 2801.2..................... What is the objective of Sec. 2861.2........ What is the objective of
BLM's right-of-way the BLM's Communications
program? Uses program?
Sec. 2801.5(b).................. What acronyms and terms Sec. 2861.5(b)..... What acronyms and terms
are used in the are used in the
regulations in this part? regulations in this
part?
Sec. 2801.8..................... Severability. Sec. 2861.8........ Severability.
Sec. 2801.9(a)(5)............... When do I need a grant? Sec. 2861.9........ When do I need a grant?
Subpart 2802...................... Lands Available for FLPMA Subpart 2862......... Lands Available for
Grants Grants.
Sec. 2802.11.................... How does the BLM designate Sec. 2862.11....... How does the BLM
right-of-way corridors designate communications
and designated leasing sites and establish
areas? communications site
management plans?
Subpart 2804...................... Applying for FLPMA Grants Subpart 2864......... Applying for Grants.
Sec. 2804.10.................... Who may hold a grant? Sec. 2864.10....... What should I do before I
file my application?
Sec. 2804.12.................... What must I do when Sec. 2864.12....... What must I do when
submitting my submitting my
application? application?
Sec. 2804.24.................... Do I always have to submit Sec. 2864.24....... Do I always have to use
an application for a Standard Form 299 when
grant using Standard Form submitting my
299? application for a grant?
Sec. 2804.25.................... How will BLM process my Sec. 2864.25....... How will the BLM process
application? my Communications Uses
application?
Sec. 2804.26.................... Under what circumstances Sec. 2864.26....... Under what circumstances
may BLM deny my may the BLM deny my
application? application?
Sec. 2804.35.................... How will the BLM Sec. 2864.35....... How will the BLM
prioritize my solar or prioritize my
wind energy application? Communications Uses
application?
Subpart 2805...................... Terms and Conditions of Subpart 2865......... Terms and Conditions of
Grants Grants.
[[Page 67320]]
Sec. 2805.14.................... What rights does a grant Sec. 2865.14....... What rights does a grant
provide? provide?
Subpart 2808...................... Trespass Subpart 2868......... Communications Uses
Trespass.
Sec. 2808.10.................... What is a trespass? Sec. 2868.10....... What is a Communications
Uses trespass?
----------------------------------------------------------------------------------------------------------------
Subpart 2861--General Information
Section 2861.1 What requirements of part 2800 apply to my grant?
This section explains that the requirements of part 2800 would
apply to communications uses grants unless a provision in part 2860
provides otherwise. Part 2800 of the existing and proposed regulations
describes requirements for general ROWs. Part 2860 describes
requirements that would specifically apply to communications uses
grants, which are generally in addition to the requirements described
in part 2800.
Section 2861.2 What is the objective of the BLM's Communications Uses
program?
Proposed Sec. 2861.2 describes the objectives of the
communications uses program. It is based on existing Sec. 2801.2.
Proposed paragraph (b) in this section describes the BLM's
objectives of administering the communications uses program through
responsible development on the BLM-administered lands and providing a
safe environment. This proposed paragraph would not constitute a
substantive change from existing policy.
Proposed paragraph (d) of this section explains that the BLM would
collect market value rent for communications uses authorized on public
lands as required under 43 U.S.C. 1764.
Proposed paragraph (e) describes the BLM's objective of promoting
the expansion of communications uses in rural America. The proposed
changes in this section reflect E.O. 13821, which directs the BLM to
promote communications uses on public land in rural America. The words
``wherever practical'' would be included for consistency with the
changes to the objectives in Sec. 2801.2.
Section 2861.5 What acronyms and terms are used in the regulations in
this part?
Proposed Sec. 2861.5 defines terms that are specific to
communications uses. The proposed section includes terms currently
defined in existing Sec. 2801.5. New definitions are proposed to be
added to provide clarity for the public when the BLM is administering
an authorization for communications uses.
The definitions for ``RMA,'' ``Base Rent,'' ``Customer,''
``Facility Manager,'' ``Facility Owner,'' ``Site,'' and ``Tenant''
would be moved from Sec. 2801.5, the definitions of ``Facility'' and
``Grant'' would be copied from Sec. 2801.5, and those definitions
would be revised slightly to reflect their specific application in the
context of communications uses.
The proposed rule would add the term and a definition of ``Annual
inventory certification'' to clarify the nature of the document that a
holder must provide on an annual basis (see existing Sec. 2806.31(c)
and proposed Sec. 2866.31(c)).
The proposed rule would add the term and a definition of
``collocation'' to clarify when an occupant is collocated within or on
a holder's facility. This concept is relevant for communications uses
rent (see proposed Sec. 2866.31) and when a grant would be required
(see proposed Sec. 2866.36).
The proposed rule would add the term and a definition of
``communications site'' to establish what is meant when describing a
communications site within an authorization document. The lack of a
definition caused confusion because, often, the BLM and industry refer
to a ``communications site'' when they really mean a ``communications
facility.'' This definition clarifies the difference between the terms.
The proposed rule would add the term and a definition of
``communications site management plans'' to clarify that these plans
guide development and operations at communications sites. These plans
may be called ``implementation level plans,'' meaning that they take
action to implement a land use plan (generally a Resource Management
Plan (RMP)), which contains standards and guidelines and describes the
communications uses that are allowed or restricted at a communications
site. The BLM identifies and names communications sites through the
preparation of a communications site management plan. Additionally, the
communications site management plan provides holders and future
proponents with the development conditions for a particular site.
The proposed rule would add the term and a definition of
``communications uses'' to describe the types of uses considered to be
a communications use. This definition includes all ROW uses to which
part 2860 would apply.
The definition for the term ``Communications uses rent schedule''
would be moved here from Sec. 2801.5. The change is necessary to
maintain consistency in terminology throughout the new proposed part
2860. The term ``communications uses rent schedule'' would continue to
apply to all types of communications uses identified in existing Sec.
2801.5 for purposes of identifying and collecting rent, and it would
also apply to the following additional uses proposed to be added to
this definition: ``facility manager,'' ``internet service provider
(ISP),'' ``passive reflector,'' and ``local exchange network.''
The proposed rule would add the term and definition of ``duly filed
application'' to explain that it is an application which includes all
the elements required by Sec. 2804.25.
The proposed rule would add the term and a definition of
``occupant.'' Occupants are entities, other than the holder of a grant,
which use a facility covered by that authorization.
Section 2861.8 Severability
Proposed Sec. 2861.8 is based on the existing Sec. 2801.8 (and
also parallels Sec. 2881.9, which is proposed to be changed to Sec.
2881.8) and would provide that any decision finding any provisions in
part 2860 to be invalid would not affect the remaining provisions,
which would remain in force.
Section 2861.9 When do I need a grant?
Proposed Sec. 2861.9 is based on the existing Sec. 2801.9 and
would describe and provide some examples of when an authorization is
needed to use public lands for communications uses.
Proposed paragraph (a) of this section provides that an
authorization would be required when installing a facility that
[[Page 67321]]
is not under a current valid authorization. This is not a new
requirement and is consistent with current BLM practice.
Proposed paragraph (b) of this section explains that an
authorization would be required when installing a linear communications
facility, such as a fiber optic cable. Due to the communications nature
of fiber optic cables and telephone lines, proposed part 2860 is an
appropriate location for regulations administering these communications
uses.
Subpart 2862--Lands Available for Grants
Section 2862.11 How does the BLM designate communications sites and
establish communications site management plans?
Proposed Sec. 2862.11 would describe how the BLM designates
communications sites and when communications site management plans are
prepared.
This proposed section is based on existing Sec. 2802.11, which
describes how the BLM designates ROW corridors and designated leasing
areas.
Under proposed Sec. 2862.11(a), the BLM would coordinate in the
preparation of the communications site management plans with other
Federal agencies, State, local, and Tribal governments, and the public,
consistent with the coordination requirements of existing Sec.
2802.11(a).
Proposed paragraph (b) would identify factors the BLM considers
when determining land suitability for communications uses, in addition
to the factors described in existing Sec. 2802.11(b).
Proposed paragraph (c) describes how the BLM would establish
communications site management plans. As described under the definition
for the plans, they are implementation-level plans that tier to the
applicable RMP.
While communications site management plans are generally adopted
outside the land use planning process, the BLM often refers to these
plans in RMPs. The identification of communications sites and the
adoption of their complementary management plans must be supported by
appropriate NEPA analysis, which could take the form of an applicable
categorical exclusion or determination of NEPA adequacy.
Subpart 2864--Applying for Grants
Section 2864.10 What should I do before I file my application?
Proposed Sec. 2864.10 is based on existing Sec. 2804.10.
Proposed Sec. 2864.10(a) describes the purpose of a preliminary
application review meeting. Preliminary application review meetings
provide valuable information and reveal project constraints to
proponents. This information should result in more thorough and
complete applications that would streamline BLM application processing,
consistent with E.O. 13821 and a Presidential Memorandum directed to
the Secretary, both issued on January 8, 2018. A preliminary
application review meeting is not a requirement but is strongly
encouraged.
Proposed paragraph (b) would prompt applicants to ask the BLM for a
copy of any applicable communications site management plan for the site
of the proposed project. Having a communications site management plan
would assist the applicant in developing a project proposal consistent
with the communications site management plan and streamline the
processing of an application.
Paragraph (c) would specify what an applicant should acquire before
submitting an application to the BLM. A complete communications uses
application almost always requires proof of an FCC license. If an
applicant already has included a license as part of its application, it
eliminates the need for the BLM to request that information, and
thereby cuts down on processing times.
Section 2864.12 What must I do when submitting my application?
Proposed Sec. 2864.12 would describe the supplemental information
needed to accompany the SF-299, which is required for all
communications uses applications. Proposed Sec. 2864.12 is based on
existing Sec. 2804.12 but proposes additional specific communications
uses requirements for applications. Existing Sec. 2804.12(f) states
that the BLM may require you to submit additional information during
the processing of your application. This proposed section standardizes
the requirements specific to communications uses, to streamline the
application process for these types of authorizations.
Proposed paragraph (a) of this section would clarify that when an
application for a ROW is filed electronically, an actual signature may
not be required. Instead of a manual signature, the applicant could
meet the BLM's standards for electronic commerce. This proposed
revision would allow applicants to file their applications
electronically. These changes would streamline application submissions
and allow for more flexibility in how applications are submitted.
Proposed paragraph (a)(1) of this section refers to Sec. 2804.12
for a list of attachments that should be included in all applications.
Proposed paragraph (a)(2) would require an applicant to provide
proof of their FCC license. This requirement is consistent with current
BLM practice, and the BLM proposes to incorporate this requirement into
the regulations to notify applicants what to expect. There is no
expectation that this new language would create any additional burden
for communications uses applicants.
Paragraph (a)(3) of this section would require an applicant to
submit the GIS shapefiles for a map of the proposed project. That
requirement is consistent with proposed changes to Sec. 2804.12(a)(4),
which already requires an applicant to submit a map of the proposed
project and would further require the applicant to submit GIS
shapefiles, upon request, under the proposed rule. When a BLM office is
conducting a NEPA analysis, it is not uncommon for the various resource
specialists to request that an applicant provide project data
electronically in a GIS format. It is also likely the individual or
entity responsible for the application already has the proposed project
in a GIS format, and therefore, the BLM would not be adding a
significant burden upon the applicant. This new requirement would be
expected to reduce application processing times by allowing the BLM to
integrate project locations into existing resource datasets and analyze
the potential resource impacts more quickly.
Paragraph (a)(4) of this section would require an application to
include draft engineering or construction drawings. By including these
drawings, applicants could expect faster application processing times.
An applicant usually produces draft construction drawings before an
applicant intends to submit their application, so the BLM does not
expect this requirement to create any additional burden. The BLM
expects that the inclusion of this information in the application would
streamline application processing times.
Paragraph (a)(5) of this section would require that a
communications uses application include technical data related to
communication equipment used in and on the proposed facility. The
proposed rule would specify the
[[Page 67322]]
types of technical data, such as frequencies and power output of the
proposed use, that applicants must submit to allow the BLM to determine
whether the proposed use would be consistent with the applicable
communications site management plan and would be compatible with
existing communications uses at the proposed communications site. This
provision is consistent with current BLM policy, which requires this
information from applicants.
Paragraph (a)(6) would require an applicant to provide a
communications uses plan of development (POD) in support of an
application. The BLM may require a POD for an application under
existing Sec. 2804.25(c). The POD is an essential tool for the BLM to
understand the scope and complexity of the proposed project. A complete
POD can drastically reduce the time spent on processing an application,
primarily during the NEPA process. Current BLM policy requires a POD be
submitted with all applications and the proposed rule would not be
expected to create any additional burden on the applicant.
Proposed paragraph (b) would state that the BLM may require
additional information from an applicant about their application while
it is being processed. For example, the BLM may require an applicant to
submit information about the applicant's plans to comply with a visual
plan included in the RMP for the area (e.g., paint color or stealth
design). The proposed changes explain that the BLM would not process an
application until the additional information has been submitted. The
BLM anticipates this change would help expedite application review and
processing. This proposed paragraph is based on existing Sec.
2804.12(f).
Section 2864.24 Do I always have to use Standard Form 299 when
submitting my application for a grant?
Proposed Sec. 2864.24 would require that the SF-299 be used for
all communications uses applications, consistent with Section 606(b)(2)
of the MOBILE NOW Act. This proposed section would be consistent with
current BLM practice, as well as that of many other Federal agencies,
and would clarify requirements to the applicant.
Section 2864.25 How will the BLM process my Communications Uses
application?
Proposed Sec. 2864.25 provides that the BLM would process
communications uses applications consistent with existing Sec.
2804.25. In addition, this section would require the BLM to approve or
deny a duly filed application for a grant within 270 days. This is in
accordance with the MOBILE NOW Act, which requires Federal agencies to
approve or deny a communications facility installation application
within 270 days of receiving a duly filed application. The BLM
anticipates this new regulation would shorten application processing
times and establish consistency among BLM offices.
Section 2864.26 Under what circumstances may the BLM deny my
application?
Proposed Sec. 2864.26 is based on existing Sec. 2804.26 and
describes when an application for communications uses may be denied.
Reasons for denial include the provisions of existing Sec. 2804.26,
along with reasons specific to communications uses, such as
interference with other communications users.
Proposed paragraph (a) of this section is based on Sec.
2804.26(a)(1), which states that an application may be denied if the
proposed use is inconsistent with any other previously authorized ROW,
including communications uses on the public lands. It is the goal of
the BLM to allow multiple communications uses within a communications
site area if they are compatible with one another. Existing
communications uses ROW authorization holders would be given the
opportunity during the application process to provide evidence of
potential interference with their use. The BLM would evaluate any such
evidence to determine if the subsequently proposed communications uses
might potentially interfere with the previously authorized
communications uses, and if so, whether a denial is warranted under the
circumstances.
Under proposed paragraphs (b) and (c) of this section, an
application could be denied if the proposed use presents a public
health or safety issue or is not in conformance with the RMP or
communications site management plan.
Section 2864.35 How will the BLM prioritize my Communications Uses
application?
Proposed Sec. 2864.35 describes how the BLM would prioritize
applications for grants. This section is based on existing Sec.
2804.35, which describes how the BLM prioritizes solar and wind
applications. Under this proposed section, the BLM would prioritize
processing applications for grants that meet the needs of underserved,
rural, and Tribal communities, as well as first responders. The BLM
would like the public to comment on any further criteria the BLM should
consider when prioritizing processing communications uses applications.
This proposed section was added in response to E.O. 13821,
discussed earlier in this preamble.
Subpart 2865--Terms and Conditions of Grants
Section 2865.14 What rights does a grant provide?
Proposed Sec. 2865.14 would describe the rights provided by a
grant, in addition to the rights described in existing Sec. 2805.14.
Proposed paragraph (a) of this section is based on existing Sec.
2805.14(a) and would be revised to clarify that only facilities
explicitly allowed by an authorization are acceptable.
Proposed paragraph (b) of this section is based on existing Sec.
2805.14(b) and would describe when the holder of an authorization may
allow subleasing of their facilities to others. The term ``subleasing''
is added to maintain consistency with current BLM policy when
administering grants. Currently, many authorizations are managed by
another entity that was not approved by the BLM. This paragraph would
clarify what an authorization may allow.
Proposed paragraph (c) of this section is based on existing Sec.
2805.14(c) and states that the authorization holder may allow another
entity to conduct day-to-day operations of the facility, as authorized
by the BLM. The existing section describes access to lands, but the
proposed rule would instead refer to ``lands or facilities.'' This
change is consistent with other changes to the regulations proposed to
be moved to part 2860, which are intended to acknowledge that an
authorization may be either a grant to use a facility or a grant for
the use of public lands.
Proposed paragraph (d) of this section would set the standard
length for a grant at 30 years. The BLM considers a 30-year-term to be
consistent with Section 504(b) of FLPMA's ``reasonable term''
limitation, and that interpretation would be carried forward for
grants. The BLM could determine in a given case that a shorter term is
appropriate for an authorization. For example, a BLM office could
determine the resource issues at the proposed site, such as
environmental or Tribal concerns, may warrant a shorter term for the
authorization.
Subpart 2866--Annual Rents and Payments
Proposed subpart 2866 would contain the rental requirements for
grants. Many of the sections would be moved from
[[Page 67323]]
existing subpart 2806 with no substantive changes from existing
requirements. The proposed changes from existing requirements are
intended to streamline the rental process for communications uses and
are discussed in detail in the following section-by-section analysis.
The following chart shows which sections of existing subpart 2806 would
be moved into proposed subpart 2866.
Table 4--Proposed Subpart 2866 vs Existing Subpart 2806
----------------------------------------------------------------------------------------------------------------
Section 2866 based on or moved from 2806
-----------------------------------------------------------------------------------------------------------------
Current section Current title Proposed section Proposed title
----------------------------------------------------------------------------------------------------------------
Subpart 2806..................... Annual Rents and Payments Subpart 2866........... Annual Rents and
Payments.
Based on Sec. 2806.14.......... Under what circumstances Sec. 2866.14......... Under what circumstances
am I exempt from paying am I exempt from paying
rent? rent?
Based on Sec. 2806.15.......... Under what circumstances Sec. 2866.15......... Under what circumstances
may BLM waive or reduce may the BLM waive or
my rent? reduce my rent?
Based on Sec. 2806.23.......... How will the BLM Sec. 2866.23......... How will the BLM
calculate my rent for calculate my rent for
linear rights-of-way the linear rights-of-way for
Per Acre Rent Schedule Communications Uses?
covers?
Moved from Sec. 2806.30........ What are the rents for Sec. 2866.30......... What are the rents for
communication site Communications Uses?
rights-of-way?
Moved from Sec. 2806.31........ How will BLM calculate Sec. 2866.31......... How will the BLM
rent for a right-of-way calculate rent for
for communication uses Communications Uses in
in the schedule? the schedule?
Moved from Sec. 2806.32........ How does BLM determine Sec. 2866.32......... How does the BLM
the population strata determine the population
served? strata served for your
facility?
Moved from Sec. 2806.33........ How will BLM calculate Sec. 2866.33......... How will the BLM
the rent for a grant or calculate the rent for a
lease authorizing a single use communication
single use communication facility grant?
facility?
Moved from Sec. 2806.34........ How will BLM calculate Sec. 2866.34......... How will the BLM
the rent for a grant or calculate the rent for a
lease authorizing a multiple-use
multiple-use communication facility
communication facility? grant?
Moved from Sec. 2806.35........ How will BLM calculate Sec. 2866.35......... How will the BLM
rent for private mobile calculate rent for
radio service (PMRS), private mobile radio
internal microwave, and service (PMRS), internal
``other'' category microwave, and ``other''
users? category uses?
Moved from Sec. 2806.36........ If I am a tenant or Sec. 2866.36......... If I am a tenant or
customer in a facility, customer in a facility,
must I have my own grant must I have my own grant
or lease and if so, how and if so, how will this
will this affect my affect my rent?
rent?
Moved from Sec. 2806.37........ How will BLM calculate Sec. 2866.37......... How will the BLM
rent for a grant or calculate rent for a
lease involving an grant involving an
entity with a single use entity with a single use
(holder or tenant) (holder or tenant)
having equipment or having equipment or
occupying space in occupying space in
multiple BLM-authorized multiple BLM-authorized
facilities to support facilities to support
that single use? that single use?
Based on Sec. 2806.38.......... Can I combine multiple Sec. 2866.38......... Can I combine multiple
grants or leases for grants for facilities
facilities located on located at one site into
one site into a single a single grant?
grant or lease?
Moved from Sec. 2806.39........ How will BLM calculate Sec. 2866.39......... How will the BLM
rent for a lease for a calculate rent for a
facility manager's use? grant for a facility
manager's use?
Moved from Sec. 2806.40........ How will BLM calculate Sec. 2866.40......... How will the BLM
rent for a grant or calculate rent for an
lease for ancillary authorization for
communication uses ancillary Communications
associated with Uses associated with
communication uses on Communications Uses on
the rent schedule? the rent schedule?
Based on Sec. 2806.41.......... How will BLM calculate Sec. 2866.41......... How will the BLM
rent for communication calculate rent for
facilities ancillary to communications
a linear grant or other facilities ancillary to
use authorization? a linear grant or other
use authorization?
Based on Sec. 2806.42.......... How will BLM calculate Sec. 2866.42......... How will the BLM
rent for a grant or calculate rent for
lease authorizing a Communications Uses
communication use within within a federally owned
a federally-owned communications facility?
communication facility?
Moved from Sec. 2806.43, but How does BLM calculate Sec. 2866.43......... How does the BLM
the terms would be moved to Sec. rent for passive calculate rent for
2861.5. reflectors and local passive reflectors and
exchange networks? local exchange networks?
Moved from Sec. 2806.44........ How will BLM calculate Sec. 2866.44......... How will the BLM
rent for a facility calculate rent for a
owner's or facility facility owner's or
manager's grant or lease facility manager's grant
which authorizes which authorizes
communication uses? Communications Uses?
----------------------------------------------------------------------------------------------------------------
For a discussion of the sections in subpart 2806 that would be
removed by this proposed rule, see the preamble discussion of subpart
2806.
Section 2866.14 Under what circumstances am I exempt from paying rent?
Proposed Sec. 2866.14 describes when a holder would be exempt from
paying rent. Proposed paragraph (a)(1) of this section states that
Federal, State, and local governments, along with their
instrumentalities, would be exempt from paying rent. Proposed
paragraphs (a)(2) and (a)(3) carry over from paragraphs (a)(3) and
(a)(4) of Sec. 2806.14. Proposed paragraph (b) describes the proposed
exceptions to these exemptions.
Under paragraph (b)(1) of this section, a holder would not be
exempt from paying rent if the holder is in trespass. This is not a
change from existing requirements but would be added to the regulations
to provide clarity to holders.
Proposed paragraphs (b)(2)(i) and (b)(2)(ii) would explain that a
State or local government entity would not be exempt from paying rent
when the facility is being used for commercial purposes or when the
principal source of revenue is generated from customer use charges.
These requirements are consistent with existing Sec. 2804.16(a).
Under new paragraph (b)(2)(iii), a State or local government entity
would not be exempt from rent if it charges rent to the United States
Government for occupancy within an exempt facility (above routine
operation and maintenance costs). Currently, the BLM and other Federal
agencies are often charged rent to occupy space in another governmental
(State or local
[[Page 67324]]
government) facility when their authorization to occupy the public
lands is exempt from rental. The BLM is proposing this change to
reciprocate rent exemptions for the United States. The provisions of
this section are intended to ensure that the Federal Government is
charged reasonable rates for maintenance and operations only.
Section 2866.15 Under what circumstances may the BLM waive or reduce my
rent?
Proposed Sec. 2866.15 would include rental reduction or waiver
provisions that would apply specifically to the communications uses
program.
Under proposed paragraph (a) of this section, the BLM could waive
or reduce rent for holders that are licensed by the FCC as non-
commercial and educational broadcasters.
Under proposed paragraph (b) of this section, the BLM could waive
or reduce rent for amateur radio clubs that provide a benefit to the
general public or to the programs of the Secretary, for verified
nonprofit organizations, or for entities that can demonstrate undue
hardship and public interest. A holder could request a waiver or
reduction in rent under proposed Sec. 2806.15(b)(5).
Paragraph (c) of this section would describe when the BLM could not
waive or reduce rent. These exceptions include when an organization
operates for the benefit of its members; when any portion of the
authorized facility is being used for commercial purposes; when the
holder is charging the United States to occupy a facility; and when a
holder charges fees beyond reasonable operation and maintenance for the
occupants whose use is normally exempt or waived by the BLM. This
provision would be consistent with proposed Sec. 2866.14(b)(2).
Paragraph (d) of this section would describe when the BLM would
revoke a holder's waiver of rent. Under paragraph (d) of this section,
the BLM would revoke a holder's waiver if it determines that the
authorization holder no longer meets the criteria for a waiver.
This proposed section would provide several additional ways by
which the BLM could waive the rent of users who provide a public
benefit and are not operating solely to make a profit. This proposed
section would streamline our processes by demonstrating to the public
when rent could be waived or reduced and by reducing the need for the
BLM to further analyze a request.
Section 2866.23 How will the BLM calculate my rent for linear rights-
of-way for Communications Uses?
Proposed Sec. 2866.23 is based on existing Sec. 2806.23 and would
provide some additional clarification that linear communications uses,
such as for fiber optic and telephone cable, would be charged rent
using the linear ROW rent schedule found in Sec. 2806.23. The
communications uses rent schedule is specific to small areas, while the
linear schedule is used for long and narrow ROWs, such as pipelines or
power lines. Since a linear communications use is a long and narrow
facility, the linear rent schedule is more appropriate.
Section 2866.30 What are the rents for Communications Uses?
While much of proposed part 2860 is based on sections of part 2800,
which would remain as part of the proposed rule, the communications
site rent provisions (proposed Sec. Sec. 2866.30 through 2866.44)
contain the provisions that would be moved from subpart 2806 to new
subpart 2866. Changes from existing provisions are discussed in the
following sections of this preamble.
Proposed Sec. 2866.30 contains the provisions of existing Sec.
2806.30. This proposed section describes how the BLM would assess
annual rent for communications uses. Only the address for the BLM would
be updated.
Section 2866.31 How will the BLM calculate rent for Communications Uses
in the schedule?
Proposed Sec. 2866.31 contains the provisions of existing Sec.
2806.31 and there would be no substantive changes from existing
requirements.
Section 2866.32 How does the BLM determine the population strata served
for your facility?
Proposed Sec. 2866.32 contains the provisions of existing Sec.
2806.32 and there would be no substantive changes from existing
requirements.
Section 2866.33 How will the BLM calculate the rent for a single use
communication facility grant?
Proposed Sec. 2866.33 contains the provisions of existing Sec.
2806.33 and there would be no substantive changes from existing
requirements.
Section 2866.34 How will the BLM calculate the rent for a multiple-use
communication facility grant?
Proposed Sec. 2866.34 contains the provisions of existing Sec.
2806.34, and there would be no substantive changes from existing
requirements.
Section 2866.35 How will the BLM calculate rent for private mobile
radio service (PMRS), internal microwave, and ``other'' category uses?
Proposed Sec. 2866.35 contains the provisions of existing Sec.
2806.35, and there would be no substantive changes from existing
requirements.
Section 2866.36 If I am a tenant or customer in a facility, must I have
my own grant and if so, how will this affect my rent?
Proposed Sec. 2866.36 contains the provisions of existing Sec.
2806.36, and there would be no substantive changes from existing
requirements.
Section 2866.37 How will the BLM calculate rent for a grant involving
an entity with a single use (holder or tenant) having equipment or
occupying space in multiple BLM-authorized facilities to support that
single use?
Proposed Sec. 2866.37 contains the provisions of existing Sec.
2806.37, and there would be no substantive changes from existing
requirements.
Section 2866.38 Can I combine multiple grants for facilities located at
one site into a single grant?
Proposed Sec. 2866.38 contains the provisions of existing Sec.
2806.38 and would now require submittal of an SF 299 for BLM
authorization to combine facilities into a single grant.
Section 2866.39 How will the BLM calculate rent for a grant for a
facility manager's use?
Proposed Sec. 2866.39 contains the provisions of existing Sec.
2806.39, and there would be no substantive changes from existing
requirements.
Section 2866.40 How will the BLM calculate rent for an authorization
for ancillary Communications Uses associated with Communications Uses
on the rent schedule?
Proposed Sec. 2866.40 contains the provisions of existing Sec.
2806.40, and there would be no substantive changes from existing
requirements. The BLM considers ``ancillary'' communication facilities
to be those used solely for the purpose of internal communications.
Section 2866.41 How will the BLM calculate rent for communications
facilities ancillary to a linear grant or other use authorization?
Proposed Sec. 2866.41 contains the provisions of existing Sec.
2806.41, and there would be no substantive changes from existing
requirements.
[[Page 67325]]
Section 2866.42 How will the BLM calculate rent for Communications Uses
within a federally owned communications facility?
Proposed Sec. 2866.42 contains the provisions of existing Sec.
2806.42, and there would be no substantive changes from existing
requirements.
Section 2866.43 How does the BLM calculate rent for passive reflectors
and local exchange networks?
Proposed Sec. 2866.43 contains the provisions of existing Sec.
2806.43, except that the definitions for ``passive reflector'' and
``local exchange network'' have been added to proposed Sec. 2861.5
instead.
Section 2866.44 How will the BLM calculate rent for a facility owner's
or facility manager's grant which authorizes Communications Uses?
Proposed Sec. 2866.44 contains the provisions of existing Sec.
2806.44, and there would be no substantive changes from existing
requirements.
Subpart 2868--Communications Uses Trespass
Section 2868.10 What is a Communications Uses trespass?
Proposed Sec. 2868.10 is based on Sec. 2808.10 but would provide
for additional communications uses-specific circumstances that the BLM
considers trespass. The intent of this section is to define a trespass
so that facility owners and users understand how best to avoid
unauthorized use.
Paragraph (a) would state that adding to or altering from the
communications facilities described in the authorization without
approval from the BLM would be a trespass.
Paragraph (b) of this section would state that facility owners who
permit communications uses of other users by allowing them to sublease
any portion of their facilities without approval would be considered a
trespass.
Paragraph (c) would explain that natural structures, such as trees
and rocks, may not be used to house or support equipment without the
BLM's prior approval, and that doing so constitutes trespass. Using
trees and rocks leads to unacceptable resource damage and is not a
sustainable practice.
All the provisions in this section have been a part of BLM policy
for years, but it became clear that there was some confusion by users
as to exactly what the BLM considered trespass. The BLM believes that
publishing these provisions as regulations would lead to a reduction in
unauthorized use.
43 CFR Part 2880 Rights-of-Way Under the Mineral Leasing Act
The MLA requires that the applicant reimburse the United States for
administrative and other costs incurred in processing the application.
The BLM refers to such costs as ``actual costs'' and defines that term
to include the financial resources the BLM expends in processing and
monitoring ROW activities under the MLA, including the direct and
indirect costs, exclusive of management overhead costs.
Section 28 of the MLA (30 U.S.C. 185(l)) requires applicants for
either MLA pipeline ROWs or temporary use permit (TUPs) to reimburse
the United States for administrative and other costs incurred in
processing applications and monitoring the construction, operation,
maintenance, and termination of any pipeline and related facilities.
The MLA does not limit or qualify the actual cost requirement, nor
does it list any factors that the BLM may consider when determining
reimbursable costs. The BLM bases actual cost information on Federal
accounting and reporting systems. The BLM is proposing changes to part
2880 to provide consistency with the general ROW regulations of part
2800.
Subpart 2881--General Information
Section 2881.2 What is the objective of the BLM's right-of-way program?
The proposed rule would add the words ``wherever practical'' to the
objective described in Sec. 2881.2(c). This proposed change would be
consistent with proposed Sec. 2801.2(c). For a more detailed
discussion, please see the preamble discussion for Sec. 2801.2(c).
Section 2881.5 What acronyms and terms are used in the regulations in
this part?
The BLM proposes to amend Sec. 2881.5(b) for consistency with
proposed Sec. 2801.5. For a detailed discussion of these changes,
please see the preamble discussion of proposed Sec. 2801.5.
Section 2881.7 Scope.
The BLM proposes to amend paragraphs (a) and (b)(1) in Sec.
2881.7. These modifications would clarify when an action would be
processed under the regulations of part 2880 and when an action would
be processed under the application for permit to drill (APD)
regulations (43 CFR part 3160). Within the APD lease area, the BLM
would process ``related facilities'' under the APD as defined in Sec.
2881.5. Once a pipeline or related facility leaves the APD lease area
and is outside the boundary of the APD lease area it would be
considered ``off lease'' and, at the lease boundary, would become an
activity processed under these regulations to the extent still on
Federal land and subject to paragraph (b). Moreover, pipelines and
related facilities operated by a party who is not the lessee or lease
operator of a Federal oil and gas lease or that are downstream from a
custody transfer metering device would be processed under these
regulations regardless of whether the pipelines and related facilities
are on or off lease.
These proposed changes would not impact oil and gas operators, who
would still coordinate with the BLM to manage their pipelines and
related facilities. The proposed rule would ensure consistency in BLM
operations and how these facilities are managed under these
regulations.
Section 2881.8 Severability.
The BLM proposes to redesignate Sec. 2881.9 as 2881.8 to be
consistent with the same sections in the 2800 and 2860 regulations.
Subpart 2883--Qualifications for Holding MLA Grants and TUPs
Section 2883.14 What happens to my grant or TUP if I die?
Because an application is not an inheritable interest, the BLM
proposes to change the title of this section from ``What happens to my
application, grant, or TUP if I die? '' to ``What happens to my grant
or TUP if I die?'' Paragraph (a) would also be revised to remove the
reference to the applicant and the application.
Subpart 2884--Applying for MLA Grants or TUPs
Section 2884.11 What information must I submit in my application?
The proposed rule would revise Sec. Sec. 2884.11(a) and
2884.11(c)(6) for consistency with proposed Sec. 2804.12. For a more
detailed discussion of these proposed changes, see the preamble
discussion of Sec. 2804.12.
Section 2884.12 What are the fee categories for cost recovery?
The proposed rule would revise the title of this section to read,
``What are the fee categories for cost recovery? '' for consistency
with proposed Sec. 2804.14. For a detailed discussion of the other
changes to this section, please see the preamble discussion of proposed
Sec. 2804.14.
[[Page 67326]]
Section 2884.13 When will the BLM waive cost recovery fees?
The proposed rule would revise the title of this section to read
``When will the BLM waive cost recovery fees? '' rather than ``Who is
exempt from paying processing and monitoring fees? '' The BLM proposes
to amend Sec. 2884.13 for consistency with proposed Sec. 2804.16. For
a detailed discussion of these changes, please see the preamble
discussion of proposed Sec. 2804.16.
Section 2884.14 When does the BLM reevaluate the cost recovery fees?
The proposed rule would revise the title of this section to change
``processing and monitoring'' to ``cost recovery.'' This change is
consistent with the proposed changes to Sec. 2804.15.
Section 2884.15 What is a Master Agreement (Cost Recovery Category 5)
and what information must I provide to the BLM when I request one?
The proposed rule would amend Sec. 2884.15 to clarify the use of a
Master Agreement and to replace the term ``processing and monitoring''
with ``cost recovery'' to be inclusive of administrative actions. These
changes are consistent with the proposed changes to Sec. 2804.17. For
a more detailed discussion of these changes, please see the preamble
discussion of Sec. 2804.17.
Section 2884.16 What provisions do Master Agreements contain and what
are their limitations?
The proposed rule would amend provisions in Sec. 2884.16(a) that
describe how processing and monitoring activities are included in a
Master Agreement. Section 2884.16(c) would be added to clarify that a
Master Agreement would waive a holder's rights to request a reduction
in cost recovery fees. This is the current practice of the BLM and is
not a substantive change. These changes are consistent with the
proposed amendments to Sec. 2804.18. For a more detailed discussion of
these revisions, please see the preamble discussion of Sec. 2804.18.
Section 2884.17 How will the BLM manage my Category 6 project?
The proposed rule would amend Sec. 2884.17 by revising the heading
to read ``How will the BLM manage my Category 6 project?'' The BLM
proposes to revise Sec. 2884.17(a) to include processing and
monitoring activities. Revised Sec. 2884.17(b) would describe what the
BLM would do in monitoring your grant. Proposed paragraph (b)(4) of
this section states that the BLM could collect a deposit before
beginning work on a Category 6 project. These changes are consistent
with the proposed amendments to Sec. 2804.19. For a more detailed
discussion of these revisions, please see the preamble discussion of
Sec. 2804.19.
Section 2884.21 How will the BLM process my application?
The proposed rule would amend Sec. 2884.21 for consistency with
the proposed revisions to Sec. 2804.25. For a more detailed discussion
of these revisions, please see the preamble discussion of Sec.
2804.25.
Section 2884.23 Under what circumstances may the BLM deny my
application?
The proposed rule would revise paragraph (a)(6) of this section,
which states that the BLM could deny your ROW application if you fail
to comply with a deficiency notice. This revision would make this
paragraph consistent with Sec. Sec. 2804.26 and 2864.26.
Section 2884.24 What fees must I pay if the BLM denies my application,
or if I withdraw my application or relinquish my grant or TUP?
The proposed rule would amend Sec. 2884.24 to provide consistency
with proposed Sec. 2804.27. For a more detailed discussion of these
amendments, please see the preamble discussion of Sec. 2804.27.
Section 2884.27 What additional requirements are necessary for grants
for pipelines 24 or more inches in diameter?
The proposed rule would amend Sec. 2884.27 by revising the title
to read, ``What additional requirements are necessary for grants for
pipelines 24 or more inches in diameter? '' Also, this section would be
revised to remove any reference to a temporary use permit (TUP).
Currently, any time a new grant or TUP application is filed with the
BLM and the project involves a pipeline 24 or more inches in diameter,
the regulations say BLM must notify Congress of the filed application.
The reasons for removing TUPs from this section are as follows:
(1) Section 185(w) of the MLA, which is the statutory source of the
notification requirement, does not mention TUPs, only ROWs;
(2) Congressional notification for TUPs creates a significant,
unnecessary workload for BLM offices, the Department of the Interior,
and Congress; and
(3) The TUPs are temporary in nature, unlike new grants.
Subpart 2885--Terms and Conditions of MLA Grants and TUPs
Section 2885.12 What rights does a grant or TUP provide?
The proposed rule would amend the title of 2885.12 from ``What
rights does a grant or TUP convey? '' to ``What rights does a grant or
TUP provide?'' in order to be clear that the BLM does not convey any
ownership rights to a ROW holder.
Section 2885.17 What happens if I do not pay rents and fees or if I pay
the rents or fees late?
The proposed rule would amend Sec. 2885.17 to provide consistency
with proposed Sec. 2806.13. For a more detailed discussion of these
changes, please see the preamble discussion of Sec. 2806.13.
Section 2885.19 What is the rent for a linear right-of-way grant?
The proposed rule would revise paragraph (b) to update the contact
address of the BLM and highlight availability of the Per Acre Rent
Schedule on the BLM website.
Section 2885.24 If I hold a grant or TUP, what cost recovery fees must
I pay?
The proposed rule would amend the title for Sec. 2885.24 to read,
``If I hold a grant or TUP, what cost recovery fees must I pay? '' to
include permitting and monitoring activities. The proposed rule would
revise Sec. Sec. 2885.24(a) and 2885.24(b), and add a new Sec.
2885.24(c). Section 2885.24(a) would refer you to Sec. 2884.12(b) for
the descriptions of the proposed minor category fees. Section
2885.24(b) would state that Categories 1 through 4 would be updated on
an annual basis. Added Sec. 2885.24(c) would explain how to obtain a
copy of the current cost recovery fee schedule.
Subpart 2886--Operations on MLA Grants and TUPs
Section 2886.17 Under what conditions may the BLM suspend or terminate
my grant or TUP?
Section 2886.17 would be revised to add a new paragraph (c)(3),
which states that the BLM may terminate your grant or TUP if it is
terminated by court order. If a court were to terminate a grant or TUP,
the BLM must implement the court order. This is not a change to BLM
practice but provides clarity to the public.
[[Page 67327]]
Subpart 2887--Amending, Assigning, or Renewing MLA Grants and TUPs
Section 2887.10 When must I amend my application, seek an amendment of
my grant or TUP, or obtain a new grant or TUP?
Section 2887.10(b) would be revised to change the term ``processing
and monitoring'' to ``cost recovery,'' consistent with proposed Sec.
2807.20(b).
Section 2887.11 May I assign or make other changes to my grant or TUP?
Section 2887.11(i) would be added to clarify that an authorization
amendment is necessary for a substantial deviation from location or
use.
Section 2887.12 How do I renew my grant?
The proposed rule would amend Sec. 2887.12 to provide consistency
with proposed Sec. 2807.22. For a more detailed discussion of these
changes, please see the preamble discussion of Sec. 2807.22.
PART 2920--LEASES, PERMITS AND EASEMENTS
Subpart 2920--Leases, Permits and Easements: General Provisions
Section 2920.0-5 Definitions.
Section 2920.0-5 would be amended to add the term and a definition
of ``cost recovery'' and would be reorganized to be in alphabetical
order.
Section 2920.6 Payment of cost recovery fees.
The title of Sec. 2920.6 would be amended from ``Reimbursement of
costs'' to ``Payment of cost recovery fees,'' and the content of the
section would be updated to reflect this change. The change better
explains the process to collect estimated cost recovery fees before the
work is performed rather than afterward through reimbursement.
Section 2920.8 Fees.
Section 2920.8 would be amended by revising Sec. 2920.8(b) to say,
``cost recovery fees,'' to provide consistency with the revisions made
to part 2800.
IV. Procedural Matters
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 (58 FR 51725, October 4, 1993)
provides that the Office of Information and Regulatory Affairs (OIRA)
in the Office of Management and Budget (OMB) will review all
significant rules. The OIRA has determined that this rule is not
significant.
E.O. 13563 (76 FR 3821, January 11, 2011) reaffirms the principles
of E.O. 12866 while calling for improvements in the nation's regulatory
system to promote predictability, reduce uncertainty, and use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The E.O. directs agencies to consider regulatory approaches that
reduce burdens and maintain flexibility and freedom of choice for the
public where these approaches are relevant, feasible, and consistent
with regulatory objectives. E.O. 13563 emphasizes further that
regulations must be based on the best available science and that the
rule making process must allow for public participation and an open
exchange of ideas. The BLM has developed this rule in a manner
consistent with these requirements.
The BLM reviewed the proposed requirements and has determined that
the proposed rule does not meet any of the E.O. 12866 criteria of
significance. OIRA has also concluded that the proposed rule is not a
significant regulatory action. Therefore, the proposed rule is not a
significant regulatory action, and the BLM is not required to submit a
regulatory impact analysis to OMB for review.
The proposed rule would not have a significant effect on the
economy. The BLM estimated that the proposed rule would have
distributional impacts in the form of transfer payments of about $3.47
million per year from firms and individuals to the BLM. Transfer
payments are monetary payments from one group to another that do not
affect total resources available to society. While disclosing the
estimated transfers are important for describing the distributional
effects of the proposed rule, these payments should not be included in
the estimated costs and benefits per OMB Circular A4.
For more detailed information, see the Economic and Threshold
Analysis prepared for this proposed rule. The economic analysis has
been posted in the docket for the proposed rule on the Federal
eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Searchbox,
enter ``RIN 1004-AE60,'' click the ``Search'' button, open the Docket
Folder, and look under Supporting Documents.
Federal Actions To Address Environmental Justice in Minority
Populations and Low-Income Populations (E.O. 12898)
E.O. 12898 (59 FR 7629, February 16, 1994) requires that, to the
extent practicable and permitted by law, each Federal agency must make
achieving environmental justice part of its mission. E.O. 12898
provides that each Federal agency conduct its programs, policies, and
activities that substantially affect human health or the environment in
a manner that ensures that such programs, policies, and activities do
not have the effect of excluding persons (including populations) from
participation in, denying persons (including populations) the benefits
of, or subjecting persons (including populations) to discrimination
under such programs, policies, and activities because of their race,
color, or national origin. This rule streamlines the processing of ROWs
and their associated fees and requires operations and maintenance plans
for powerline ROWs. These proposed rule changes are not expected to
have an effect on any particular population. Therefore, this rule is
not expected to negatively impact any community and is not expected to
cause any disproportionately high and adverse impacts to minority or
low-income communities.
Regulatory Flexibility Act
This rule would not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601 et seq.). The RFA generally requires that
Federal agencies prepare a regulatory flexibility analysis for rules
subject to the ``notice-and-comment'' rulemaking requirements found in
the Administrative Procedure Act (5 U.S.C. 500 et seq.) if the rule
would have a significant economic impact, whether detrimental or
beneficial, on a substantial number of small entities. See 5 U.S.C.
601-612. Congress enacted the RFA to ensure that government regulations
do not unnecessarily or disproportionately burden small entities. Small
entities include small businesses, small governmental jurisdictions,
and small not-for-profit enterprises.
The BLM reviewed the Small Business Size standards for the affected
industries. We determined that a large share of the entities in the
affected industries are small businesses as defined by the Small
Business Act (SBA). However, the BLM believes that the impact on the
small entities is not significant.
The proposed rule would benefit small businesses by streamlining
the BLM's processes. Cost recovery fees would increase, but the impact
of the increases is not expected to be substantial for the small
entities, nor would it fall disproportionately on small businesses.
For the purpose of carrying out its review pursuant to the RFA, the
BLM believes that the proposed rule would
[[Page 67328]]
not have a ``significant economic impact on a substantial number of
small entities,'' as that phrase is used in 5 U.S.C. 605. An initial
regulatory flexibility analysis is therefore not required.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under the Small Business Regulatory
Enforcement Fairness Act, 5 U.S.C. 804(2). This rule:
(a) Does not have an annual effect on the economy of $100 million
or more. The proposed rule would result in additional cost recovery
payments (or receipts to the United States Government) paid mostly by
firms and individuals. These payments are ``transfer payments.''
Transfer payments are monetary payments from one group to another that
do not affect total resources available to society.
(b) Would not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. The BLM determined that the relatively
minor increase in minor category fees would not pose an impact to small
businesses, because the proposed increase in fees represents a very
minor percentage of the average annual receipts of these entities.
Based on our review of these data, we believe that there is only a very
small potential for the smallest of the small businesses to be
impacted. Further, there are aspects of the rule that would provide
operating flexibility for small businesses, likely allowing them to
manage their powerline and communications site ROWs more efficiently or
at reduced cost.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. The
proposed rule would not have adverse effects on any of these criteria,
it would encourage the development of communications uses in rural
areas in accordance with E.O. 13821 and the MOBILE NOW Act.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. Under the Unfunded
Mandates Reform Act (UMRA) (2 U.S.C. 1531 et seq.), agencies must
prepare a written statement about benefits and costs, prior to issuing
a proposed or final rule that may result in aggregate expenditure by
State, local, and Tribal governments, or by the private sector, of $100
million or more in any one year.
This rule is not subject to the requirements under the UMRA. The
rule does not contain a Federal mandate that may result in expenditures
of $100 million or more for State, local, and Tribal governments, in
the aggregate, or to the private sector in any one year. The rule would
not significantly or uniquely affect small governments. A statement
containing the information required by the UMRA is not required.
Takings (E.O. 12630)
This rule does not affect a taking of private property or otherwise
have taking implications under E.O. 12630. Section 2(a) of E.O. 12630
(53 FR 8859, March 15, 1988) identifies policies that do not have
takings implications, such as those that abolish regulations,
discontinue governmental programs, or modify regulations in a manner
that lessens interference with the use of private property. The
proposed rule would not interfere with private property. A takings
implication assessment is not required.
Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132 (64 FR 43255, August
4, 1999), this rule does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement. It
does not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. A federalism summary impact statement is not required.
Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988 (61 FR 4729,
February 5, 1996). Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)
The Department of the Interior (DOI) strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and Tribal sovereignty.
In accordance with E.O. 13175 (65 FR 67249, November 9, 2000), the
BLM has evaluated this rulemaking and determined that it would not have
substantial direct effects on federally recognized Indian tribes.
Nevertheless, on a government-to-government basis we initiated
consultation with Tribal governments that wish to discuss the rule.
In August 2021, the BLM sent a letter to federally recognized
Indian Tribes notifying them about the BLM's intent to pursue this
rulemaking. In that letter, the BLM invited the tribes to government-
to-government consultation. We look forward to continuing close
interaction with Tribal leaders as we proceed through this rulemaking
process.
Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
This proposed rule contains new information collections. All
information collections require approval under the Paperwork Reduction
Act of 1995 (PRA) (44 U.S.C. 3501 et seq.). We may not conduct or
sponsor and, notwithstanding any other provision of law, you are not
required to respond to a collection of information unless it displays a
currently valid OMB control number.
The information collection activities associated with the
application process in this proposed rule require the use of SF-299
(Application for Transportation, Utility Systems, Telecommunications
and Facilities on Federal Lands and Property) and the Communications
Site Tenant/Customer Inventory Certification of Facility Owner or
Manager. The OMB has previously approved the information collection
requirements associated with BLM's use of Common Form SF-299 as part of
the application process (U.S. Department of Agriculture--U.S. Forest
Service OMB Control Number 0596-0249, expires 02/28/2023). You may view
our approved Request for Common Form at <a href="http://www.reginfo.gov/public/do/PRAMain">http://www.reginfo.gov/public/do/PRAMain</a>. Additionally, Sec. 2884.11 refers to BLM forms Application
for Permit to Drill or Reenter (BLM Form 3160-3) and Sundry Notice and
Report on Wells (BLM Form 3160-5). These forms are part of the
requirements for applying for MLA Grants or TUPs. The information
required as part of these applications is contained in the current
regulations under this paragraph and is currently approved by OMB under
OMB control number 1004-0137 (expires 01/31/2025). The proposed rule
would not
[[Page 67329]]
change these forms or the associated information collected as part of
the application requirements.
This proposed rule includes provisions pertaining to non-hour
burdens authorized by the FLPMA and the MLA. The FLPMA is the only
authority under which communications uses on BLM-managed lands may be
authorized. However, both the FLPMA (43 U.S.C. 1734(b) and 1764(g)) and
the MLA (30 U.S.C. 185(l)) authorize the BLM and other applicable
Federal agencies to collect funds from ROW applicants or holders to
reimburse an agency for expenses incurred while processing an
application and monitoring a grant. If this proposed rule becomes
effective, the BLM would include non-hour burdens for other uses (e.g.,
electric generation and pipelines) in requests to revise OMB Control
Numbers 1004-0137 (Onshore Oil and Gas Operations and Production) and
1004-0206 (Competitive Processes, Terms and Conditions for Leasing of
Public Lands for Solar and Wind Energy Development).
The information collection requirements identified below require
approval by OMB:
(1) Appeals/Petitions for a Stay (43 CFR 2801.10 and 43 CFR
2881.10)--Current regulations at 43 CFR 2801.10 and 43 CFR 2881.10
provide a process for applicants to appeal a BLM decision issued under
the regulations in parts 2800 and 2880, respectively, in accordance
with part 4 of title 43. All BLM decisions under parts 2800 and 2880
remain in effect pending appeal unless the Secretary of the Interior
rules otherwise, or as noted in the respective part. The applicant may
petition for a stay of a BLM decision under part 4 with the Office of
Hearings and Appeals, Department of the Interior. Unless otherwise
noted, the BLM would take no action on the application while the appeal
is pending. (43 CFR 2801.10(b), 2881.10(b).)
(2) Designation of Agent or Third Party (43 CFR 2803.11)--Proposed
amendments to Sec. 2803.11 would require notification of an intent to
designate another person or entity to act on behalf of a holder of a
FLPMA grant (i.e., any authorization or instrument issued under FLPMA
Title V, 43 U.S.C. 1761-1772). This is a new information collection
activity, although existing Sec. 2803.11 states that another person
may act on the holder's behalf if the holder has ``authorized the
person to do so under the laws of the State where the ROW is or will be
located.'' The proposed amendments retain the existing language and, in
addition, require the following in a designation notification:
(A) Notify the BLM office having jurisdiction over the grant in
writing of their intention and provide a copy of the Power of Attorney,
if one exists; and
(B) Provide and maintain the current contact information for the
intended agent.
If an applicant designates an agent or third party to act on their
behalf, they are still responsible for following the terms and
conditions of the grant. In addition, the proposed amendments require
the holder of the grant to maintain current contact information for the
intended agent.
(3) Request for a Master Agreement (43 CFR 2804.17 & 43 CFR
2884.15) Sections 2804.17 and 2884.15 describe the information a holder
of a FLPMA grant, MLA grant, or Temporary Use Permit (TUP) must provide
to the BLM when requesting a ``Master Agreement (Cost Recovery Category
5).'' A Master Agreement, as described in existing Sec. Sec. 2804.17
and 2884.15, is a written agreement covering processing and monitoring
fees negotiated between the BLM and the holder. The term ``Cost
Recovery Category 5'' refers to agreements involving multiple BLM grant
approvals within defined geographic areas. As amended, Sec. Sec.
2804.17 and 2884.15 would further define Cost Recovery Category 5 as
involving projects within defined geographic areas ``or for a specific
common activity for many projects.'' These are the only proposed
amendments for Sec. Sec. 2804.17 and 2884.15.
Sections 2804.17 and 2884.15 require that a request for a Master
Agreement include:
(A) A description of the geographic area covered by the Agreement
and the scope of the activity the holder plans;
(B) A preliminary work plan that states what work the holder must
do and what work the BLM must do to process the application;
(C) A preliminary cost estimate and a timetable for processing the
application and completing the projects;
(D) A statement whether the holder wants the Agreement to apply to
future applications in the same geographic area that are not part of
the same projects; and
(E) Any other relevant information that the BLM needs to process
the application (e.g., financial information, maps, environmental or
cultural data about the area covered by the grants).
(4) Written Agreements--Category 6 Projects (43 CFR 2804.19 and 43
CFR 2884.17)--The term ``Cost Recovery Category 6'' refers to
agreements involving a large scale or highly complex FLPMA grant, MLA
grant, or TUP approval. As amended, Sec. Sec. 2804.14 and 2884.12
would define Cost Recovery Category 6 to include activities that will
require more than 64 hours or require an environmental impact
statement. For Category 6 applications, the applicant and the BLM must
enter into a written agreement that describes how the BLM will process
the application and monitor the grant. The BLM may require that the
final agreement contains a work plan and a financial plan, and a
description of any existing agreements they have with other Federal
agencies for cost reimbursement associated with the application or
grant.
For the BLM to determine reasonable costs associated with a
Category 6 project, the written agreement must include a written
analysis of those factors applicable to the project, unless the
applicant agrees in writing to waive consideration of reasonable costs
and elects to pay actual costs. The BLM may require the applicant to
submit additional information in support of their position.
(5) Analysis of Factors--Cost Recovery Fee Determination (43 CFR
2804.21)--Along with the written application, applicants may submit
their analysis of how each of the factors, as applicable, in Sec.
2804.21(a), pertains to their application. The BLM will notify the
applicant in writing of the fee determination.
(6) Withdrawing Applications/Relinquishing Grants (43 CFR 2804.27
and 43 CFR 2884.24)--Applicants may withdraw their application in
writing before the BLM issues a grant. Applicants may relinquish their
grant in writing. If they withdraw their application or relinquish
their grant, they are liable for all processing costs the United States
has incurred up to the time of the withdrawal or relinquishment and for
the reasonable costs of termination proceedings. Any money not paid by
the applicant is due within 30 calendar days after receiving a bill for
the amount due. Any money paid by the applicant that is not used to
cover costs the United States incurred as a result of their application
would be refunded to them.
(7) Request for Alternative Requirement (43 CFR 2804.40)--If the
applicant is unable to meet any of the requirements in subpart 2804,
they may request approval for an alternative requirement from the BLM.
Any such request is not approved until the BLM provides their approval
in writing. The request for alternative must:
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(A) Show good cause for the applicant's inability to meet a
requirement;
(B) Suggest an alternative requirement and explain why that
requirement is appropriate; and
(C) Be received in writing by the BLM in a timely manner, before
the deadline to meet a particular requirement has passed.
(8) Request for Extension (43 CFR 2805.12(c)(5))--Grant holders
must take appropriate remedial action within 30 days after receipt of a
written noncompliance notice unless they have been provided an
extension of time by the BLM. Alternatively, they must show good cause
for any delays in repairs, use, or removal; estimate when corrective
action will be completed; provide evidence of diligent operation of the
facilities; and submit a written request for an extension of the 30-day
deadline. If they do not comply with this provision, the BLM may
suspend or terminate the authorization.
(9) Rights the United States Retains--Financial Documents (43 CFR
2805.15)--A proposed amendment to Sec. 2805.15 would add to the list
of rights retained by the United States the right to require a holder
to submit applicable financial documents and supporting documents
including, but not limited to, contractual and subleasing agreements.
This amendment would be consistent with the requirements of existing
Sec. 2805.12(a)(15).
(10) Operations, Maintenance, and Fire Prevention Plans (43 CFR
2804.25(c)(2) and 43 CFR 2805.21(a))--Proposed Sec. Sec. 2804.25(c)(2)
and 2805.21(a) would require an operations, maintenance, and fire
prevention plan for all new powerline ROWs. Applications to amend and
renew powerline ROWs must follow the same procedures as applications
for new ROWs and would also be subject to this proposed requirement.
Existing holders of powerline ROWs would not be required to submit an
operations, maintenance, and fire prevention plan under the proposed
rule until they renew or amend their grant but may submit such plans on
a voluntary basis. Holders of ROWs may submit an operations,
maintenance, and fire prevention plan to the BLM on a voluntary basis
even if their ROW is not for a powerline.
Under existing Sec. 2804.25(c), the BLM may require applicants to
submit a POD for a ROW, as necessary. Proposed Sec. 2805.21(c)
describes requirements of the operations, maintenance, and fire
prevention plans that powerline ROW applicants would also be required
to submit, as follows:
(A) Plan requirements: An operations, maintenance, and fire
prevention plan must:
(i) Identify the applicable facilities to be maintained;
(ii) Take into account the holder's own operating operations and
maintenance plans for the applicable right-of-way;
(iii) Describe the vegetation management, inspection, and operation
and maintenance methods that may be used to comply with applicable law,
including fire safety requirements and reliability standards
established by the ERO;
(iv) Include schedules for:
(a) The applicable owner or operator to notify the BLM about non-
emergency routine and major maintenance;
(b) The applicable owner or operator to request approval from the
BLM about undertaking non-emergency routine and major maintenance; and
(c) The BLM to respond to a request by an owner or operator;
(v) Describe processes for:
(a) Identifying changes in conditions; and
(b) Modifying the approved operations, maintenance, and fire
prevention plan, if necessary; and
(vi) Additionally, Sec. 2805.21 includes a requirement for a fire
prevention plan (removal and disposal of cut trees and branches,
including plans for sale of forest products).
(11) Modification of Operations, Maintenance, and Fire Prevention
Plans (43 CFR 2805.21(e))--Proposed Sec. 2805.21(e) describes how the
BLM would notify the holder that an operations, maintenance, and fire
prevention plan requires modifications. The BLM would provide advance
reasonable notice to the holder that a modification is necessary, and
the holder would submit the proposed modification to the BLM. The BLM
would review and approve the proposed operations, maintenance, and fire
prevention plan modification in the timeframe identified for submitting
new approvals. Under Sec. 2805.21(e)(4), the holder may continue to
operate and maintain the ROW or facility in accordance with the
approved operations, maintenance, and fire prevention plan, as long as
the activity does not conflict with the identified condition that
requires a plan modification.
(12) Agreements in Lieu of Operations, Maintenance, and Fire
Prevention Plans (43 CFR 2805.21(f))--Proposed Sec. 2805.21(f)
provides that certain holders may enter into an agreement with the BLM
in lieu of an operations, maintenance, and fire prevention plan.
Qualifications to enter into agreements, in lieu of operations,
maintenance, and fire prevention plans, are described in Sec.
2805.21(g). An agreement must contain the same general requirements of
operations, maintenance, and fire prevention plans described in Sec.
2805.21. Agreements would need to include schedules, as described in
proposed Sec. 2805.21(c)(4) and are subject to the same modification
requirements of proposed Sec. 2805.21(e).
(13) Notifications--Emergency Conditions (43 CFR 2805.22(a))--
Owners or operators of electric transmission or distribution lines
shall notify the authorized officer not later than 1 day after the date
of their response to emergency conditions.
(14) Request for Approval--Non-Emergency Conditions (43CFR
2805.22(b))--Owners or operators must request approval from the BLM for
a proposed activity if their plan:
(A) Requires them to seek specific approval for the proposed
activity; or
(B) Does not address the proposed activity. They may also need to
amend their operations, maintenance, and fire prevention plan if they
anticipate conducting this activity on a recurring basis.
(15) Phasing Rent--Hardship (43 CFR 2806.22 & 43 CFR 2866.31)--The
BLM uses separate rental schedules for linear ROWs (see Sec. 2806.22)
and for communications uses grants (see proposed Sec. 2866.30). When
the BLM adjusts its rental schedule under these sections, some holders'
rents may increase dramatically. The proposed rule includes provisions
in each of these sections (see proposed Sec. Sec. 2806.22(c) and
2866.30) to provide holders experiencing undue hardship with the option
to phase in the cost difference over a 3-year period. If a holder's
rent would more than double from the previous year, the holder may
request a phase-in of the increased rent in accordance with Sec.
2806.15(b)(5).
(16) Amendments (43 CFR 2807.20 and 43 CFR 2887.10)--Applicants
must amend their application or seek an amendment of their grant when
there is a proposed substantial deviation in location or use. The
requirements to amend an application or grant are the same as those for
a new application, including paying cost recovery fees and rent
according to Sec. Sec. 2804.14, 2805.16, and 2806.10.
(17) Renewals (43 CFR 2807.22 and 43 CFR 2887.12)--Applicants must
submit an application to renew their existing grant at least 120 days
prior to grant expiration.
(18) Request for Preliminary Application Review (43 CFR 2864.10)--
[[Page 67331]]
In addition to the provisions listed in Sec. 2804.10, before filing
their application, the applicant should:
(A) Schedule a preliminary application review meeting with the
appropriate personnel in the BLM field office with jurisdiction over
the lands the applicant seeks to use. During the preliminary
application review meeting, the BLM can:
(i) Identify potential constraints;
(ii) Determine whether the lands are located inside a
communications site management plan area;
(iii) Tentatively schedule the processing of the proposed
application; and
(iv) Inform the applicant of financial obligations, such as
processing and monitoring costs and rents.
(B) Request a copy of the most recent communications site
management plan for that site, if one is available.
(C) Ensure the applicant has all other necessary licenses,
authorizations, or permits required for the operation of the facility.
(19) Request for Exemption (43 CFR 2806.14 and 43 CFR 2866.14)--
Applicants for or holders of an authorization for electric or telephone
facilities may request an exemption if they were financed in whole or
in part by, or were eligible for financing under, the Rural
Electrification Act of 1936, as amended (REA) (7 U.S.C. 901 et seq.) or
if their facilities are extensions of facilities that are exempt from
paying rental. This exemption may be requested during the application
process for a new grant, or an existing grant holder may request an
exemption if they are now eligible after a change in policy. The BLM
issued an Instruction Memorandum in 2016 (IM-2016-122) after a
Memorandum of Understanding in 2014 established the new policy. Holders
do not need to have sought financing from the Rural Utilities Service
to qualify for this exemption. Holders would need to document the
facility's eligibility for REA financing.
(20) Request for Waiver or Reduction in Annual Rent (43 CFR
2806.15, 43 CFR 2866.15, and 43 CFR 2866.30)--A holder may request a
rent waiver or reduction if paying the full rent would cause the holder
undue hardship and it is in the public interest to waive or reduce the
rent. For example, an undue hardship can be a financial impact on a
small business, or it could involve situations where there is a need to
relocate the facility to comply with public health and safety or
environmental protection laws not in effect at the time the original
grant issued. The holder would also need to submit information to
support an undue hardship claim. Several other sections of the proposed
rule allow a holder to request a waiver or reduction to their rent
under the provisions of Sec. Sec. 2806.15, 2866.15, and 2866.30.
(21) Annual Statement (43 CFR 2866.31(c))--By October 15 of each
year, communications uses grantees must submit to the BLM a certified
statement listing any tenants and customers in their facility or
facilities and the category of use for each tenant or customer as of
September 30 of the same year. The BLM may require grant holders to
submit additional information to calculate their rent. The BLM would
determine the rent based on the annual inventory certification
statement provided. We require only facility owners or facility
managers to hold a grant (unless they are an occupant in a federally
owned facility as described in Sec. 2866.42) and would charge rent for
grants based on the total number of communications uses within the
right-of-way and the type of uses and population strata the facility or
site serves. Failure to submit the annual inventory certification (by
electronic correspondence or postmarked) by October 15 may result in
the grantee not receiving any discounts, reductions, exemptions, or
waivers (see Sec. Sec. 2866.14, 2866.15, and 2866.34), for which they
may have been entitled.
(22) Request to Authorize Facilities Under a Single Grant (43 CFR
2866.38)--Applicants holding authorizations for two or more facilities
on the same communications site may submit a written request to
authorize those facilities under a single grant.
(23) Request for Collocation within Ancillary Facilities (43 CFR
2866.41)--Proposed Sec. 2866.41 would add a regulation to require
holders with ancillary facilities to request collocation. Under this
proposed section, holders of a communications facility grant issued as
an ancillary facility to a linear authorization could apply to the BLM
for the right to allow subleasing within that facility. The BLM
considers ``ancillary'' communication facilities to be those used
solely for the purpose of internal communications for the grant. Once
the BLM grants subleasing authority, the holder would not be charged
any additional rent for the occupancy of additional uses in that
facility.
If the BLM does not respond to a holder's request for collocation
within 60 days from acceptance of a complete application, the request
would be considered approved. This conditional approval would be
consistent with the streamlining measures proposed in this rule. These
new provisions would make it easier for rural broadband providers to
utilize existing infrastructure, thereby further facilitating the
deployment of broadband in rural areas.
(24) Environmental Impact Statement (43 CFR 2804.14(e), 43 CFR
2884.12(e))--In processing your application, the BLM may determine at
any time that an Environmental Impact Statement (EIS) is necessary to
evaluate the application. The EIS may be prepared by the applicant, the
BLM, or by both parties.
Title of Collection: Rights-of-Way Communications Uses, Cost
Recovery, and 512 of FLPMA (Vegetation Management) 43 CFR parts 2800,
2860, 2880 AND 2920.
OMB Control Number: 1004-New.
Form Number: SF-299 (Burden approved by OMB in Request for Common
Form under OMB Control No. 0596-0249); BLM Forms 3160-3 and 3160-5
(Burden approved by OMB under OMB Control No. 1004-0137).
Type of Review: New Collection (Request for a new OMB control
number).
Respondents/Affected Public: Individuals, private sector, and
State/local/Tribal governments who seek or hold rights-of-way on public
lands.
Respondent's Obligation: Required to Obtain or Retain a Benefit.
Frequency of Collection: On occasion and annually for the Annual
Statement required in 43 CFR 2866.31
As part of our continuing effort to reduce paperwork and respondent
burdens, we invite the public and other Federal agencies to comment on
any aspect of this information collection, including:
(1) Whether the collection of information is necessary for the
proper performance of the functions of the agency, including whether or
not the information would have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including by using appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Send your comments and suggestions on this information collection
by the date indicated in the DATES and ADDRESSES sections above.
Comments on the information collection aspects of
[[Page 67332]]
this proposed rule will be summarized, along with the BLM's response to
those comments, at the final rule stage of the rulemaking action.
You may view the information collection request(s) at <a href="http://www.reginfo.gov/public/do/PRAMain">http://www.reginfo.gov/public/do/PRAMain</a>.
National Environmental Policy Act
The BLM has determined that the changes that would be made by this
proposed rule are administrative or procedural in nature in accordance
with 43 CFR 46.210(i). Therefore, the proposed action is categorically
excluded from environmental review under the National Environmental
Policy Act (NEPA).
We have also determined that the proposed rule does not involve any
of the extraordinary circumstances listed in 43 CFR 46.215 that would
require further analysis under NEPA.
Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under E.O. 13211 (66
FR 28355, May 22, 2001). Section 4(b) of E.O. 13211 defines a
``significant energy action'' as ``any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) that is a significant regulatory action
under E.O. 12866 or any successor order, and (ii) is likely to have a
significant adverse effect on the supply, distribution, or use of
energy; or (2) that is designated by the Administrator of OIRA as a
``significant energy action.''
The BLM reviewed the proposed rule and determined that it is not a
significant energy action as defined by E.O. 13211. A Statement of
Energy Effects is not required.
Clarity of This Regulation
We are required by E.O.s 12866 (section 1(b)(12)), 12988 (section
3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential
Memorandum of June 1, 1998, to write al
[…truncated; see source link]Indexed from Federal Register on November 7, 2022.
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