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Rule2024-06997

Update of the Communications Uses Program, Cost Recovery Fee Schedules, and Section 512 of FLPMA for Rights-of-Way

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Published

April 12, 2024

Effective

May 13, 2024

Issuing agencies

Interior DepartmentLand Management Bureau

Abstract

The Department of the Interior (DOI or Department), through the Bureau of Land Management (BLM), is issuing this final rule to streamline the BLM's communications uses program, update its cost recovery fee schedules, and add provisions for operations, maintenance, and fire prevention plans for powerline rights-of-way (ROWs) consistent with section 512 of the Federal Land Policy and Management Act of 1976, as amended (FLPMA).

Full Text

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<title>Federal Register, Volume 89 Issue 72 (Friday, April 12, 2024)</title>
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[Federal Register Volume 89, Number 72 (Friday, April 12, 2024)]
[Rules and Regulations]
[Pages 25922-25977]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-06997]

[[Page 25921]]

Vol. 89

Friday,

No. 72

April 12, 2024

Part II

Department of the Interior

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Bureau of Land Management

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43 CFR Parts 2800, 2860, et al.

Update of the Communications Uses Program, Cost Recovery Fee Schedules,
and Section 512 of FLPMA for Rights-of-Way; Final Rule

Federal Register / Vol. 89 , No. 72 / Friday, April 12, 2024 / Rules
and Regulations

[[Page 25922]]

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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Parts 2800, 2860, 2880, and 2920

[BLM_HQ_FRN_MO4500175819]
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: Final rule.

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SUMMARY: The Department of the Interior (DOI or Department), through
the Bureau of Land Management (BLM), is issuing this final rule to
streamline the BLM's communications uses program, update its cost
recovery fee schedules, and add provisions for operations, maintenance,
and fire prevention plans for powerline rights-of-way (ROWs) consistent
with section 512 of the Federal Land Policy and Management Act of 1976,
as amended (FLPMA).

DATES: The final rule is effective on May 13, 2024.

FOR FURTHER INFORMATION CONTACT: Stephen Fusilier, Branch Chief,
Rights-of-Way, telephone: 202-309-3209, email: <a href="/cdn-cgi/l/email-protection#295a4f5c5a45404c694b4544074e465f"><span class="__cf_email__" data-cfemail="ccbfaab9bfa0a5a98caea0a1e2aba3ba">[email&#160;protected]</span></a>, or by
mail 1849 C St. NW, Washington, DC 20240, for information regarding the
substance of this final rule.
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. For a summary of the final rule, please see the
final rule summary document in docket BLM-2022-0002 on
<a href="http://www.regulations.gov">www.regulations.gov</a>.

SUPPLEMENTARY INFORMATION:
I. Executive Summary
II. Background
III. Section-by-Section Discussion
IV. Procedural Matters

I. Executive Summary

This final rule addresses three distinct areas: communications
uses; cost recovery; and operations, maintenance, and fire prevention
plans for powerline ROWs. The final rule revises certain regulatory
provisions related to communications use ROWs authorized under FLPMA.
The BLM administers 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. The communication
uses portion of the final rule:
<bullet> Requires the BLM to grant or deny communications uses ROW,
easement, or lease applications within 270 days;
<bullet> Provides for electronic filing of communications uses ROW
applications; and
<bullet> Requires Standard Form-299 (SF-299) as the common form for
communications uses grant applications.
The final rule changes the cost recovery fee schedule for ROWs
authorized under Title V of FLPMA or the Mineral Leasing Act of 1920,
as amended (MLA), as well as for land use authorizations under Title
III of FLPMA. Though FLPMA and the MLA authorize cost recovery for
costs associated with processing, monitoring, and terminating ROWs, the
current cost recovery fees for minor ROWs requiring less than 50 hours
of work do not cover the BLM's actual costs. The cost recovery portion
of the final rule:
<bullet> Increases the cost recovery fees for minor ROWs; and
<bullet> Expands the definition of minor ROWs to those requiring
less than 64 hours of work.
The final rule also adds provisions consistent with section 512 of
FLPMA, including section 512(b)(1), which directs the BLM ``[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 . . .
including hazard trees.'' The portion of the final rule implementing
section 512 of FLPMA:
<bullet> Includes provisions governing operations, maintenance, and
fire prevention plans and agreements for vegetation and facility
management on public lands within powerline ROWs;
<bullet> Adds a definition of hazard tree consistent with the
United States Forest Service's definition; and
<bullet> Includes emergency access provisions.

II. Background

The subject matter of this rule is the BLM's ROW program under 43
CFR parts 2800 and 2880, land use authorizations under part 2920, and
communications uses under newly established part 2860.
For the reader to better understand the following discussion, a
``grant,'' as defined in 43 CFR 2801.5, is any authorization or
instrument (e.g., easement, lease, license, or permit) the BLM issues
under Title V of FLPMA. A ``right-of-way'' refers to the public lands
that the BLM authorizes a holder to use or occupy under a particular
grant.
This final rule covers three distinct topics. 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.) and the MLA (30 U.S.C. 185 et seq.), for the
Federal Government's expenses in undertaking ROW work. The third topic
is implementation of Section 512 of FLPMA (43 U.S.C. 1772) and
addresses the risk of fires from powerline ROWs on public lands.

A. Communications Uses

In the 21st century, broadband is just as vital to the public 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 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
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. E.O. 13821, issued on
January 8, 2018, promotes better access to broadband internet service
in rural America. It 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,

[[Page 25923]]

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) entitled ``Supporting Broadband
Tower Facilities in Rural America on Federal Properties Managed by the
Department of the Interior'' stated an executive branch policy to make
Federal assets more available for rural broadband deployment, with due
consideration for national security concerns. The Memorandum directed
the Secretary of the Interior 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[ ] the assets that can be used to support
rural broadband deployment and adoption.''
As the land management agency with the responsibility to manage the
largest inventory of public land in the Federal Government, the BLM is
promulgating this rule to amend regulatory provisions for the
processing and monitoring of ROWs for communications uses.
Communications companies, cooperatives, other private entities, and
government agencies ultimately make decisions on locations to construct
and/or upgrade broadband infrastructure, from communications towers to
linear ROWs for fixed terrestrial broadband access. However, the
Department administers a significant amount of land as well as existing
permitted infrastructure that can be leveraged for increased
connectivity in rural America. Currently, there are approximately 1,500
communications sites on BLM lands. By making it easier to collocate in
and on existing communications facilities or build out new
communications infrastructure on public lands, this rule will help to
increase 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).
Newly established Part 2860 of this rule consolidates and revises
the existing regulations pertaining to communications uses to
streamline processes and establish new customer service standards. The
rule also proposes several technical changes to clarify the
communications regulations.
This rule incorporates 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: ``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.'' 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 for communications
facilities. 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. This
rule requires use of the SF-299 for all communications uses grants,
thereby making the regulations consistent with the MOBILE NOW Act. By
updating these regulations, the BLM will improve response times and
address the current lack of certainty in the communications uses grant
process that impacts industry construction schedules and may increase
construction costs.

B. Cost Recovery

Typically, unless exempt, an applicant must reimburse the BLM for
its reasonable costs incurred in processing and monitoring a FLPMA ROW
activity. Both FLPMA and the MLA authorize the Federal Government to
collect fees, called cost recovery, for the reimbursement of 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. The Federal Government collects cost
recovery before the BLM begins tasks related to a ROW application or
other ROW-related activity.
In 2005, the BLM completed regulations, found in 43 CFR parts 2800
and 2880, 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. The existing regulations also 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 former cost recovery fee collections do not
adequately cover the costs incurred by the BLM for processing and
monitoring ROW applications and grants under both FLPMA and the MLA.
The final rule revises 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.
This rule also increases the cost recovery fees to better reflect
the current costs of processing and monitoring minor category ROWs and
updates the scope of the minor categories. Under the former rule, ROWs
that took 50 hours or less for a BLM realty specialist to process were
considered minor. Under the final rule, that processing time is
increased to 64 hours. This will allow more applications to qualify for
a minor category, thus eliminating the labor to establish, monitor, and
maintain appropriate accounting of major category cost recovery
accounts on those applications. The BLM believes this change will
increase operational efficiency.
This rule also makes several technical changes to 43 CFR parts 2800
and 2880 that clarify and expedite other ROW tasks. It updates cost
recovery processes for FLPMA ROW grants, MLA grants and temporary use
permits (TUPs), and leases, permits, and easements issued under Title
III of FLPMA. Finally, 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. 1732(b)) and 43 CFR part 2920. This rule
revises the regulations for these authorizations, found in section
2920.8(b), to provide consistency with the revisions made to the cost
recovery provisions in part 2800.

C. Section 512 of FLPMA

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

[[Page 25924]]

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 contacting live powerlines or structural failures of
powerline infrastructure.
On March 23, 2018, Congress amended 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). FLPMA Section 512
establishes requirements for the BLM and the USFS to develop and
implement 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. To implement Section 512 of FLPMA on land
managed by the USFS, the USFS published a final rule on July 10, 2020
(85 FR 41387), an amendment to the final rule on August 11, 2020 (85 FR
48475), draft policy on December 10, 2020 (85 FR 79463), and a final
directive on February 10, 2022 (Forest Service Manual (FSM) 2700--
Special Uses Management 2740--Vegetation Management Pilot Projects).
This final rule includes provisions to implement Section 512 on
BLM-managed land, including provisions related to emergency conditions.
This rule is consistent with the direction in Section 512(b)(1) of
FLPMA that the BLM ``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.''
To enhance electric reliability, promote public safety, and avoid fire
hazards, this rule adds definitions for the terms ``hazard tree'' and
``operating plan or agreement.'' It also includes provisions pertaining
to ROW administration to address fire risks on public lands, such as
ensuring that operating plans and agreements provide 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. The final rule defines
``hazard tree'' consistent with the USFS's definition.

D. Legal Authority

Section 310 of FLPMA (43 U.S.C. 1740) authorizes the Secretary to
promulgate regulations to implement the statute. 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 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 2018 Consolidated Appropriations Act amended FLPMA by adding a
new Section 512 (43 U.S.C. 1772), which directs the Secretary to
promulgate regulations to implement the new section. The 2018 Act also
included a provision titled the ``Making Opportunities for Broadband
Investment and Limiting Excessive and Needless Obstacles to Wireless
Act'' or ``MOBILE NOW Act,'' which amended section 6409 of the Middle
Class Tax Relief and Job Creation Act of 2012 (47 U.S.C. 1455). The
MOBILE NOW Act imposes limits on the time to process ROW applications
and 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.

E. Public Notice and Comments

The 60-day public comment period for the proposed rule, published
November 7, 2022, at 87 FR 67306, ended on January 6, 2023. The comment
period was re-opened and ended on January 23, 2023. During the comment
period and government-to-government consultation with Tribes and Alaska
Native Corporations, the BLM received 28 submissions, 18 of which were
unique. Comments included submittals from the following entities: 1
Tribe, 1 Alaska Native Corporation, 7 companies and industry
organizations, 3 governmental organizations, and 16 individual
(including anonymous) submitters. In total, those submissions included
136 unique comments. Approximately half of the comment submissions were
neutral in tone or expressed overarching support for the proposed rule,
with the remaining comments expressing opposition to it. However,
duplicate letters submitted as part of a form campaign accounted for
approximately 60 percent of the submittals expressing general
opposition.
All relevant comments are posted at the Federal eRulemaking portal:
<a href="http://www.regulations.gov">http://www.regulations.gov</a>. To access the comments at that website,
enter 1004-AE60 in the Search box. A few commenters provided comments
that were outside the scope of the proposed rule, and the BLM is not
addressing them in this final rule.
Comments regarding particular provisions of the final rule are
addressed in the Section-by-Section Discussion below. Several comments
regarding the rulemaking process are addressed in the Procedural
Matters discussion below.
One commenter encouraged us to weigh comments more heavily from
local communities. The BLM considers all comments and does not give
more weight based on the identity of the commenter.
Two commenters requested the BLM work collaboratively with the USFS
and industry to develop guidance and training programs that ensure
consistent application and implementation of the rule. The BLM agrees
that both agencies should continue to work together and with input from
industry in these areas.

III. Section-by-Section Discussion

Part 2800--Rights-of-Way Under the Federal Land Policy and Management
Act

Part 2800 of title 43 of the Code of Federal Regulations describes
requirements for ROWs issued under FLPMA. This rule revises the cost
recovery fee schedule and its categories. The communications uses
provisions found in this part have been either moved to new part 2860
or removed. Other minor modifications 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 rule adds the words ``wherever practical'' to the objective
described in Sec. 2801.2(c). This revision aligns the objective of
promoting ROWs in common with the requirement described in Section 503
(43 U.S.C. 1763) of FLPMA.
Section 2801.5 What acronyms and terms are used in the regulations in
this part?
The rule moves several terms associated with communications uses
from Sec. 2801.5 to the definitions section for a new part 2860, which
specifically addresses communications uses. The rule also adds new
definitions to

[[Page 25925]]

Sec. 2801.5. BLM is revising and republishing paragraph (b) of Sec.
2801.5 (1) to decrease the likelihood of introducing errors, (2)
improve efficiency during the publication process, and (3) meet Office
of the Federal Register drafting and formatting requirements for
publication. Unless explained elsewhere in this preamble as a change
between the proposed and final rules, the individual (piecemeal)
changes to the affected CFR units are detailed in the proposed rule,
published on November 7, 2022, at 87 FR 67306.
The BLM received comments expressing confusion about the term
``ancillary'' as that term is used in various sections of the proposed
rule. In response, the BLM added the term to this definition section of
the final rule and, consistent with its usage of the term in the
proposed rule, defined ``ancillary'' as a secondary use entirely within
the scope of a primary authorization that solely supports the
operations allowed by that primary authorization and that the holder
does not make available to third parties through commercial sales.
As proposed, the term and a definition of ``complete application''
are also added 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, and this rule clarifies
this requirement. The final rule includes only minor, nonsubstantive
changes to the definition that appeared in the proposed rule.
One commenter recommended that the BLM change the definition of
``complete application'' to provide for notification to the applicant
if the application is not complete, as well as to reference section
2804.25(c). However, the BLM will maintain its existing definition of
``complete application'' and associated workflow. The BLM reviews the
application casefile upon serialization and sends a deficiency letter
to the applicant if initial deficiencies are identified. After
interdisciplinary review, the BLM sends a deficiency letter if the
interdisciplinary team determines additional pertinent information is
missing. The BLM may send a deficiency letter at any point during the
process if more information is needed per 43 CFR 2804.25(c). The BLM's
current customer service standards and application processing workflow
appear to address the commenter's requests so that no substantive
revision of the rule is necessary.
The rule adds 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 final rule makes no changes to
the definition that appeared in the proposed rule.
The rule adds the term and a definition of ``exempt from rent'' to
clarify when an authorization is automatically exempt from rental. This
definition is consistent with existing Sec. 2806.14 and new Sec.
2866.14. The final rule makes no changes to the definition that
appeared in the proposed rule.
The rule revises the definition of the term ``facility'' by
removing the last sentence. This part of the definition applied only to
communications uses and was moved into new Sec. 2861.5, which is the
definitions section for the new part 2860 that has been added by this
rule to consolidate provisions that address communications uses ROWs.
The final rule makes no changes to the definition that appeared in the
proposed rule.
Several commenters suggested that the BLM change the definition of
hazard tree to conform with the USFS's definition so that the
definition would: (1) explicitly refer to the different types of
vegetation that create hazardous situations, consistent with the USFS's
definition; and (2) apply to vegetation likely to come within the
minimum vegetation clearance distance, in addition to vegetation likely
to come within 10 feet of a powerline facility. Another comment
requested modification of the rule to acknowledge that all vegetation
with the capability of growing into a standardized clearance area at
maximum growth potential will be removed, regardless of whether dead or
likely to die. And another requested the BLM clarify how it interprets
the hazard tree definition with respect to who can identify these trees
and set occupational standards for their staff. Related to the
definition of ``hazard tree'' and removal of vegetation from the ROW,
the BLM received a comment requesting clarification of what constitutes
routine maintenance of the ROW and whether routine maintenance requires
prior BLM approval. Another comment stated that grant holders, not the
BLM, should have discretion to determine what vegetation poses an
imminent danger and should be treated as an emergency not requiring BLM
approval prior to removal.
In response to these comments, the final rule revises the
definition of ``hazard tree'' that appeared in the proposed rule by
adopting the existing USFS definition and adds definitions of other
terms used and defined in the USFS definition of ``hazard tree''
including ``minimum vegetation clearance distance (MVCD),'' ``maximum
operating sag,'' ``operating plan or agreement,'' and ``powerline
facility.'' These definitions apply in the limited context of powerline
ROWs subject to Sec. 2805.22 and will help holders of such ROWs
understand what is required of them and what authorization their ROW
provides. (See Sec. 2805.22(b)(3)).
As commenters pointed out, the USFS's definition of ``hazard tree''
includes trees and non-tree vegetation that is ``[l]ikely to cause
substantial damage to the powerline facility; disrupt powerline
facility service; come within 10 feet of the powerline facility; or
come within the [MVCD] as determined in accordance with applicable
reliability and safety standards, and as identified in the special use
authorization for the powerline facility and the associated approved
operating plan or agreement.'' (36 CFR 251.51).
The ``MVCD'' is the calculated distance (stated in feet or meters)
that is used to prevent flashover between conductors and vegetation for
various altitudes and operating voltages. The MVCD is measured from a
conductor's maximum operating sag to vegetation within and adjacent to
the linear powerline ROW for purposes of felling or pruning hazard
trees. The ROW holder uses this calculation to determine whether
vegetation poses a system reliability hazard to the powerline facility.
Although the proposed rule dealt with vegetation management generally,
the term did not appear, and so was not defined, in the proposed rule.
It appears in the final rule as a term used in the final rule's
definition of ``hazard tree.''
``Maximum Operating Sag'' is the theoretical position of a
conductor when operating at 100 degrees Celsius and must be accounted
for when determining MVCD. Although the proposed rule dealt with
vegetation management generally, the term did not appear, and so was
not defined, in the proposed rule. It appears in the final rule as a
term used in the final rule's definition of ``hazard tree.''
In response to the comments about vegetation management, the final
rule also adds a definition for the term ``maintenance'' that applies
when that term is used to describe actions taken by holders of
powerline ROWs. The term appeared, but was not defined, in the proposed
rule. As with the final rule's

[[Page 25926]]

definition of ``hazard tree,'' the BLM is patterning the definition of
``maintenance'' after the USFS definition of that term in the same
context of powerline ROWs. ``Maintenance,'' as it is defined in this
final rule, encompasses and distinguishes between routine, non-routine,
and emergency maintenance.
The rule replaces the term ``monitoring'' with ``monitoring
activities'' and revises the definition of that term. ``Monitoring
activities'' means those activities the Federal Government performs to
ensure compliance with terms and conditions of a ROW grant. The
definition also revises the explanation of the monitoring categories
for consistency with the revisions made to Sec. 2804.14(a). The final
rule makes no changes to the definition that appeared in the proposed
rule.
The rule adds the term and a definition of ``operations and
maintenance,'' which includes activities conducted by a ROW holder to
manage facilities and vegetation within and adjacent to the ROW
boundary.
The final rule uses the term ``operating plan or agreement'' in
place of ``operations, maintenance, and fire prevention plan,'' which
was used in the proposed rule. ``Operating plan or agreement'' is a
term used by USFS in its definition of ``hazard tree.'' Since the BLM
adopted the USFS definition of ``hazard tree'' in this final rule, the
BLM determined it would be clearer to use the USFS's term ``operating
plan or agreement'' rather than ``operations, maintenance, and fire
prevention plan'' as the definitions of the two terms were
substantively the same. An ``operating plan or agreement'' is a plan
(or agreement) submitted to the BLM by the holder of a ROW that
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 rule adds the term and a definition of ``powerline facility.''
Although the proposed rule dealt with facilities properly described as
``powerline facilities,'' the term did not appear and so was not
defined in the proposed rule. It appears in the final rule as a term
used in the final rule's definition of ``hazard tree.'' A ``powerline
facility'' is one or more electric distribution or transmission lines
authorized by a ROW grant and all appurtenances to those lines
supporting conductors of one or more electric circuits of any voltage
for the transmission of electric energy, overhead ground wires, and
communications equipment that is owned by the ROW holder; that solely
supports operation and maintenance of the electric distribution or
transmission lines; and that is not leased to other parties for
communications uses that serve other purposes.
The rule adds the term and a definition of ``processing
activities.'' Processing activities are 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 issuing a grant and identifying
appropriate terms and conditions for each grant. The 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 is not a change from existing BLM practice but
clarifies to the public that the BLM collects cost recovery fees for
these ROW-related activities. This definition explains what activities
are generally associated with applications found under each cost
recovery category. The final rule makes no changes to the definition
that appeared in the proposed rule.
In response to comments expressing confusion about the term
``subleasing,'' the BLM added the term to this section of the final
rule, defining it as the ROW holder allowing another party or parties
to use facilities for the purposes specified in the ROW authorization,
for which use the ROW holder may charge fees.
In response to multiple comments, the BLM revised the definition of
``substantial deviation'' to strike the best balance of the various
considerations that the commenters raised. Two commenters wanted the
definition of ``substantial deviation'' expanded further. One commenter
suggested the BLM change the definition of ``substantial deviation'' to
exclude additions of overhead optical ground wire and additions of new
structures, as well as replacement of existing structures or
conductors. Another commenter asked that the BLM change the definition
of ``substantial deviation'' to clarify that any changes being made in
support of an existing authorized use within the boundary of an
existing authorized ROW are not to be considered a substantial
deviation and require no additional authorization.
In response to these comments, the final rule revises the
definition of ``substantial deviation'' to clarify that general
maintenance activities, including safety-related activities, within an
existing ROW are not considered a substantial deviation. Additionally,
the definition clarifies that activities to prevent or suppress
wildfires on lands within or adjacent to the ROW are not considered a
substantial deviation. The final rule explicitly identifies
``vegetation management'' as an example of such activities.
Another commenter suggested the BLM change the definition of
``substantial deviation'' to include criteria the BLM will use to
determine whether activities that occur when a ROW holder adds overhead
or underground lines, pipelines, structures, or other facilities not
expressly included in the current grant represent a substantial
deviation. Though the BLM did not revise the rule to include specific
criteria that will be used to determine whether an activity is a
substantial deviation, the BLM plans to issue implementation guidance
to help the BLM office processing or monitoring the ROW make this
determination.
The rule revises the definition of ``transportation and utility
corridor'' to clarify the process for establishing transportation and
utility corridors. Furthermore, the amended definition clarifies the
need for compatible uses. The final rule makes no changes to the
definition that appeared in the proposed rule.
The BLM received multiple, contradictory comments about
``vegetation management'' and in response has added the term and a
definition to the rule. The rule defines ``vegetation management'' in
terms of both ``emergency vegetation management'' and ``nonemergency
vegetation management.'' ``Emergency vegetation management'' is
unplanned felling and pruning of vegetation on public lands within the
linear right-of-way for a powerline facility and unplanned felling and
pruning of hazard trees on abutting public lands that have contacted or
present an imminent danger of contacting the powerline facility to
avoid the disruption of electric service or to eliminate an immediate
fire or safety hazard. ``Nonemergency vegetation management'' is
planned actions as described in an operating plan or agreement
periodically taken to fell or prune vegetation on public lands within
the linear right-of-way for a powerline facility and on abutting public
lands to fell or prune hazard trees to ensure normal powerline facility
operations and to prevent wildfire in accordance

[[Page 25927]]

with applicable reliability and safety standards and as identified in
an approved operating plan or agreement.
Several commenters suggested changes to Sec. 2805.14(d), the
provision that gives holders the right to perform certain vegetation
management, with some commenters proposing that the BLM broaden the
provision while others proposed that the BLM make it narrower. One
commenter suggested that the BLM amend Sec. 2805.14(d) so that ROW
holders could trim, prune, and remove vegetation and conduct other
activities consistent with maintenance and operation of the ROW and
protection of public health and safety. Another commenter supported the
provision as proposed so long as the vegetation management activities
were defined in the project's operating plan or agreement. A third
commentor requested revision of Sec. 2805.14(d) to clarify that
vegetation management to maintain the ROW includes the right to cut or
trim off-ROW vegetation when the utility determines it is necessary as
part of its vegetation management program. Similarly, another commenter
requested the BLM modify the rule to acknowledge that all vegetation
with the capability of growing into a standardized clearance area at
maximum growth potential will be removed, regardless of whether it is
dead or likely to die. A final commenter requested that the BLM clarify
how the BLM interprets the hazard tree definition with respect to who
can identify hazard trees and set occupational standards for its staff.
In response to the comments, the BLM determined it will retain the
language in Sec. 2805.14(d) but, as discussed above, revised the
definition of hazard tree to be consistent with the USFS's definition,
which addresses some of the comments regarding when vegetation
management is allowed on and adjacent to the ROW.
The rule adds 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 final rule makes no changes
to the definition that appeared in the proposed rule.
The rule revises 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 former definition is
no longer accurate. Removing the number of zones does not affect the
definition. The final rule makes no substantive changes to the
definition that appeared in the proposed rule.
Subpart 2802--Lands Available for FLPMA Grants
Section 2802.10 What lands are available for grants?
This rule revises Sec. 2802.10(c) by removing the specific
requirement to notify the BLM office nearest the lands you seek to use.
The 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 those lands.
One commenter suggested that the BLM modify Sec. 2802.10(c) to
provide for the identification of a single administrative office to be
the lead for coordination in processing a ROW application when multiple
offices may be involved, as well as to provide guidance on how to
determine the appropriate BLM office or contact.
The BLM elected not to make the recommended change because the BLM
has procedures to identify a lead office, or in the case where a
project crosses several states, to identify a lead state to coordinate
the processing of a ROW application. See BLM ROW Manual 2804 for
further guidance on this process.
Subpart 2803--Qualifications for Holding FLPMA Grants
Section 2803.11 Can another person act on my behalf?
Section 2803.11 adds new provisions to govern the process a holder
must follow to notify the BLM when another person or entity is
authorized to act on the holder's behalf. This standardizes what
documents the BLM requires prior to allowing another person or entity
to act on behalf of the holder.
Paragraph (a) requires 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.
Paragraph (a)(1) explains 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 paragraph also
requires the holder to provide a copy of a relevant 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 should not create
any additional burden because the requested information is simply a
copy of documents already possessed by the holder.
Paragraph (a)(2) requires the holder to provide and maintain
current contact information for their intended agent. This requirement
is important if 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.
Paragraph (b) informs the ROW holder how the BLM will administer
the grant. The BLM is simplifying the formal communication process by
establishing expectations of responsibility for any actions taken by an
authorized agent. As a result of this change, the BLM anticipates a
reduction in processing times for requests related to a ROW
application.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
Section 2803.12 What happens to my grant if I die?
Because an application is not an inheritable interest, the BLM
changed 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) was also revised to remove the reference to applications.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
Subpart 2804--Applying for FLPMA Grants
Section 2804.12 What must I do when submitting my application?
In Sec. 2804.12, the BLM has changed 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 clarifies that when an
application for a ROW is filed electronically, a manual signature may
not be required. One commenter expressed support for the proposed
rule's allowance that an application for a ROW that is filed
electronically may not require a physical signature. The BLM has
established the electronic filing process for communication uses ROWs
by providing an online SF-299 for this type of ROW application. The BLM
may expand the online filing process to other types of ROWs in the
future.
Revisions to Sec. 2804.12(a)(4) require an applicant to submit the
project map for

[[Page 25928]]

the project as Geographic Information Systems (GIS) shapefiles, or in
an equivalent format, when requested to do so by the BLM. When a BLM
office is conducting an analysis under the National Environmental
Policy Act (NEPA) or the National Historic Preservation Act (NHPA), 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 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 is 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. See
the preamble discussion of Sec. 2864.12(a)(3) for comments related to
the rule's GIS requirements.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
Section 2804.14 What are the fee categories for cost recovery?
The rule revises the title of this section to read: ``What are the
fee categories for cost recovery?'' The cost recovery categories in
this section apply to both processing and monitoring activities,
whereas the former title of Sec. 2804.14 refers only to processing
fees for grant applications. The BLM amended Sec. 2804.14(a) to
clarify that cost recovery fees include both processing and monitoring
activities and to maintain consistency with the changes in Sec.
2804.16 which, as amended, provides for the waiver of, rather than
exemption from, processing and monitoring fees.
A commenter asked that the BLM explain how monitoring costs for the
duration of the grant can be determined at the time of the grant
application, given the long-term nature of authorizations. Often,
monitoring is a one-time event to ensure that terms and conditions
contained in a ROW grant are met during construction. However, for more
complex authorizations, monitoring must occur throughout both
construction and maintenance of the ROW. The expense for continuous
monitoring during construction and afterward is considered when making
category determinations. At times, periodic billing will be required to
cover additional monitoring costs. This is especially true for Category
5 and 6 ROW project monitoring. Therefore, the BLM may collect
additional payments from the land use authorization holder for
anticipated monitoring expenses. The final rule amends the existing
regulations to acknowledge that some ROWs that fall into the minor
categories may nevertheless require monitoring for lengthy construction
or maintenance periods. The BLM suggests long-term monitoring
provisions be included in operating plans or agreements.
The BLM received multiple comments on the cost recovery portion of
the proposed rule, largely focused on the increased cost recovery fee
schedule for processing Category 1-4 ROW applications. One commenter
stated that the BLM should eliminate revisions to the Category 1
processing fee that include processing fees for work estimated to take
1 hour or less. This commenter contested the BLM's justification that
the time spent on ROW work activities generally is not less than 1 hour
and expressed concern that this revision would create a financial
burden to industry through the additional processing fees.
Processing one ROW application generally requires more than 1 hour.
To process a ROW application, one or more BLM staff specialists need to
examine the ROW site including traveling to and from the site. They
need to prepare one or more reports (e.g., cultural site evaluation,
environmental evaluation), identify appropriate terms and conditions to
be applied, prepare a grant for the applicant to sign, and collect
rents and cost recovery payments. Master Agreements are a way for
applicants to address concerns related to Category 1 applications that
may take less than 1 hour to process.
Three commenters expressed concern about the amount the cost
recovery fee is increasing and/or the validity of the calculations used
to determine the new cost recovery fee schedule. The first commenter
stated that cost recovery fees should not be revised to reflect an
average hourly wage of $67.83. The commenter expressed concern that the
economic analysis used to determine the average wage does not provide
sufficient information to assess the validity of this wage. Similarly,
this commenter stated that the rule did not properly consider required
reasonableness factors in calculating $67.83 as the base average hourly
wage for its cost recovery fees. More specifically, the commenter
stated that the economic analysis was incorrect in its determination
that all non-major projects: (1) are local in nature with small public
benefits; (2) provide little opportunity to meet public service needs;
and (3) would have an insignificant number of ROW applications where
paying full actual costs could generate undue hardship. The second
commenter stated that the average hourly wage of $67.83 upon which the
cost recovery fees of sections 2804.14(b), 2805.16(a), 2884.12(b), and
2885.24(a) are based is not reasonably supported by the rule. The
commenter stated the BLM had not provided adequate information for the
public to consider its proposed new average hourly wage of $67.83, and
the BLM had not considered adequately the consequences of its proposed
rule. The third commenter expressed a general concern that cost
recovery fees were increasing too much.
The BLM recognizes that the cost recovery calculations are complex
but will not revise the hourly wage. FLPMA Section 304(b) identifies
the factors which the BLM takes into account when determining whether
fees are reasonable. Please see the 1986 BLM proposed rule (51 FR
26836-26844) for the first cost recovery determinations applying these
factors. The economic analysis has been updated to provide more detail
in response to the comments. Further discussion of how the hourly rate
was calculated and how the amount of the increase satisfies the
reasonableness factors is provided in the below paragraphs. Master
Agreements, also discussed below, are a way for applicants to address
cost concerns.
Three commenters expressed interest in the overhead cost
calculations used in calculating the new cost recovery fee schedule.
One commenter asked why only 3 years were used in calculating
``overhead costs.'' Another commenter asked how the specific
percentages for the 3 years used were calculated. A third commenter
questioned how the asserted ``overhead costs'' were calculated, whether
only ``vehicle usage, building utility cost, and property maintenance''
went into the calculation, or if other items were included.
The indirect cost rate or ``overhead costs'' include expenses such
as building maintenance, utilities, general administrative costs (time
keeping, vehicle expenses, local travel costs), and similar items. The
indirect rate is calculated by taking the total of the BLM's
expenditures for a fiscal year (FY), subtracting salary costs, and
dividing the remainder by the total expense figure. The annual indirect
rate for any 1 year is derived from the average of the 5 previous
fiscal years' costs. The indirect cost rates for FY 2018, 2019, and
2020 were 21.8 percent, 21.6 percent, and 21.5 percent, respectively.
Tables showing the calculation can be found in the

[[Page 25929]]

economic analysis for this rulemaking. ``Economic and Threshold
Analysis for Revisions to 43 CFR 2800,'' U.S. Bureau of Land
Management, October 2023, available at <a href="http://www.regulations.gov">www.regulations.gov</a>.
The BLM received several comments asking how cost recovery amounts
were determined for Category 1-4 ROW applications. The cost recovery
amounts for Category 1-4 applications were determined in a multi-step
process. First, the BLM reviewed data in the DOI's Financial and
Business Management System for FYs 2018, 2019, and 2020. The purpose of
this review was to determine the BLM's costs associated with conducting
ROW processing and monitoring activities. From this information, the
BLM determined an approximate average wage ($/hour) being used to
conduct cost recovery-eligible work and applied that wage to the number
of hours representing the midpoint for each minor category. The BLM
reviewed data that included these three functional areas (or sub-
activities): ``1430'' (lands and realty work); ``1492'' (communication
site work); and ``5102'' (ROW-cost recovery work). The program elements
included: ``ER'' (ROW processing); ``FP'' (ROW work other than
processing); and ``NH'' (ROW compliance).
The BLM used the following formulas to determine the approximate
average wage for the cost recovery work:

Average Wage = total pay + indirect costs/number of hours worked
Total Pay = pay amount + pay additive + leave surcharge + leave
surcharge additive
Indirect Costs = total pay [lowast] indirect rate

``Pay amount'' is the portion of employee gross pay charged to each
program. ``Pay additive'' is the government share of taxes (e.g., OASDI
and Medicare) and any employee benefits (such as health insurance
premiums, retirement contributions, etc.). ``Leave surcharge'' is a
percentage of the employee gross pay assessed to each program to fund
employee leave taken. ``Leave surcharge additive'' is a percentage of
the government share of taxes and any benefits assessed to each program
to fund employee leave taken. The ``indirect rate,'' as discussed
above, is a percentage applied to the total pay to account for overhead
costs, such as for vehicle use, building utility costs, and property
maintenance.
The average wages that the BLM calculated using the cost data were
relatively stable across the 3-year period with a slight increase in FY
2020: $66.47, $66.69, and $70.50 in FY 2018, FY 2019, and FY 2020,
respectively. When the data are combined over the 3-year period, the
calculated average wage is $67.83.
This wage is the value that the BLM used to determine the revised
fee schedule. Specifically, the BLM multiplied $67.83 by the number of
hours representing the midpoint for each minor category to get the
revised base year fee for each category. During previous rulemakings on
this subject, the BLM received comments that most users supported use
of a midpoint, as opposed to another statistical method or evaluation
of the data. With this rule, the BLM maintains the use of the midpoints
for calculating the fees for the minor categories. The result of this
formulation is revised fees of $271, $1,085, $2,171, and $3,527 for
minor categories 1, 2, 3, and 4, respectively. These are the fees to be
applied in the base year and adjusted annually for changes in the GDP-
IPD, per current practice.
For more specific information on the calculation of the cost
recovery amounts, please see ``Economic and Threshold Analysis for
Revisions to 43 CFR 2800,'' U.S. Bureau of Land Management, October
2023, available at <a href="http://www.regulations.gov">www.regulations.gov</a>.
With the increase in cost recovery fees, one commenter requested
additional clarification as to how the BLM intends to use the increased
revenue from Category 1-4 cost recovery. The BLM will use the increased
revenue from the cost recovery fee increase to offset the costs the BLM
incurs processing and monitoring minor category ROWs. Currently, the
cost recovery funds received from applicants or ROW holders do not
cover the Federal Government's expenses in processing and monitoring
ROWs, which is the principal reason for adjusting the cost recovery fee
schedule.
Two commenters stated that cost recovery fees should be solely
covered by applicants and not impact taxpayers. The BLM agrees with
these commenters. That is one of the reasons why the final rule
includes the fee schedule increase. The BLM has elected not to revise
the final rule to further explain the BLM's use of the revenue from the
cost recovery fees. The statutory authority and the definition of
``cost recovery'' at Sec. 2801.5 and text of the rule at Sec. 2804.14
explain that cost recovery fees are for both processing and monitoring
expenses.
A commenter also encouraged the BLM to provide detail regarding the
cost recovery fees as well as other recovered costs to ensure that
double cost recovery does not occur. The BLM charges cost recovery fees
for processing and monitoring ROWs, and the BLM receives rents for the
use of public lands for ROW purposes. Cost recovery is charged only
once, while the ROW rental is charged every year. In suggesting that
double cost recovery could occur, the commenter likely is confusing the
one-time cost recovery with annual rent.
Two commenters requested that the BLM apply cost recovery fees to
cover road inspection by BLM staff. For roads that are part of a ROW
project subject to cost recovery, such fees are already used to pay for
these inspections. Although the BLM is not changing this final rule to
directly accommodate this comment, the BLM believes that it is a
worthwhile suggestion, and the BLM will strive to ensure that cost
recovery receipts are used for the proposed purpose.
The final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
Section 2804.15 When does the BLM reevaluate the cost recovery fees?
This rule revises the title of this section to change ``processing
and monitoring'' to ``cost recovery.'' This change is necessary for
consistency with the changes made to Sec. 2804.14.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
Section 2804.16 When will the BLM waive cost recovery fees?
The rule amends 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?'' Paragraph (a) of this
section contains the undesignated introductory text of existing Sec.
2804.16. This language was revised to refer to cost recovery fees,
instead of processing and monitoring fees, and change the existing
provision for an absolute exemption from fees to a potential waiver of
fees that the BLM has discretion to apply or not apply.
Paragraph (a)(1) of this section contains the text of existing
Sec. 2804.16(a) and states 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
paragraph, the waiver does not apply if charges levied on customers are
similar to those of a profit-making entity. This is different from the
former exception which applied only when such charges were the
``principal source of revenue.''

[[Page 25930]]

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 charge rent to use their
facility beyond the operating costs. This change makes the waiver
unavailable to applicants who would otherwise receive an authorization
at no charge and then collect fees from other users.
Paragraph (a)(2) of this section contains the text, without
revision, from existing paragraph (b).
Paragraph (a)(3) allows the BLM to waive cost recovery fees for
Federal agencies for applications belonging to cost recovery Categories
1 through 4. The former regulations required 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.
This 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 application would take the BLM more than
64 hours to process, the BLM would collect cost recovery fees under
Category 5 or 6.
This 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.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
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?
This rule modifies Sec. 2804.17(a) to change the cross-reference
from Sec. 2805.16 (currently the table for monitoring fees) to Sec.
2804.14, which contains the combined cost recovery table for all ROW
activities.
One commenter suggested the BLM clarify whether Master Agreements
are initiated by the BLM or the applicant. A Master Agreement may be
initiated by either party, but in the end, it is a mutual undertaking.
The same commenter encouraged the BLM to: (1) allow master cost
recovery agreements that lay out the terms and conditions for cost
recovery but do not require funding commitments; (2) allow agreements
to be developed at a region-wide level; and (3) clarify that only one
Master Agreement is necessary in situations where the defined
geographic area for a transmission line would be in more than one BLM
administrative unit.
In response to the commenter's suggestions, the BLM revised
paragraph (a) to clarify that monitoring may be done under Master
Agreements but elected not to revise the final rule further. See the
discussion of section 2804.18 for further responses to these comments.
Section 2804.18 What provisions do Master Agreements contain and what
are their limitations?
Section 2804.18 describes how Master Agreements function. Paragraph
2804.18(a)(2) provides that a Master Agreement describes work to be
done by the applicant and the BLM to complete ROW permitting and
monitoring activities. A commenter suggested the BLM clarify whether
Master Agreements are initiated by the BLM or the applicant. The BLM
elects not to revise the rule in response to this comment, because the
rule appropriately provides for cooperative development of Master
Agreements and initiation by either the BLM or the applicant.
The revisions to paragraph 2804.18(a)(2) allow Master Agreements to
be used for any type of ROW activity, not just ROW processing. The rule
revises language in paragraph (a)(5) to align the language with other
updates in the rule. The BLM believes the expanded use of Master
Agreements will streamline processing and monitoring activities. Master
Agreements are designed to consolidate some of the processing and
monitoring steps associated with ROWs, 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 members of interdisciplinary teams, which can help expedite
processing when funds are not otherwise available (Sec. 2804.22).
Section 2804.18(c) is amended to refer to ``cost recovery fees,''
instead of ``processing and monitoring fees.'' These changes are
consistent with the expanded definition of a Master Agreement.
The final rule includes a new paragraph (a)(9) and redesignates the
existing paragraph (a)(9) as paragraph (a)(10). This revision is made
in response to several comments that suggested Master Agreements should
be written so that they also include previously granted ROWs. This
addition will clarify that Master Agreements may cover previously
authorized ROWs.
The BLM also received a comment requesting the BLM allow master
cost recovery agreements that lay out the terms and conditions for cost
recovery but do not require funding commitments. The commenter's intent
is not clear from this comment. However, the BLM notes that the primary
purpose of a master cost recovery agreement is to agree upon the
required cost recovery funding commitments.
The BLM also received a comment suggesting that the agency allow
region-wide Master Agreements and Master Agreements that cover more
than one BLM administrative unit. The current regulations allow Master
Agreements to cover more than one administrative unit, and the BLM is
piloting regional-level master ROW's that include master operating
plans or agreements as well as master cost recovery plans. The BLM
anticipates providing further guidance on regional-level master ROWs in
the future.
Section 2804.19 How will the BLM manage my Category 6 project?
Section 2804.19 is 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 is revised to
explain that cost recovery for Category 6 projects will include
monitoring the grant in addition to processing the application. This
rule also makes editorial changes for clarity and consistency with the
other rule changes.
Paragraph 2804.19(a) eliminates the requirement for a work and
financial plan for some Category 6 applications at the discretion of
the authorized officer and provides 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
will reduce the time associated with establishing a cost recovery
account and improve the Category 6 cost recovery process, particularly
for those actions requiring close to 64 hours.
In this section, the rule adds a new paragraph (b)(4) and
redesignates existing paragraphs (b)(4) and (b)(5) as paragraphs (b)(5)
and (b)(6), respectively. New paragraph (b)(4) states that the BLM may
collect a deposit before beginning work on a Category 6 project.
Previously, when an application

[[Page 25931]]

fell under Category 6, it took an average of 6 months to complete 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 will shorten the time
for processing an application by allowing the BLM to begin processing
the application during the 6 months it usually takes to complete a cost
recovery agreement. If the BLM determines the deposit is not adequate,
the applicant can prepare a work and financial plan to provide
additional funds under a cost recovery agreement.
One commenter expressed support for the proposed rule's provisions
for collecting a deposit prior to initiating work to process Category 6
applications and giving discretion to the authorized officer to
eliminate the requirement for a work and financial plan. The commenter
further recommended the BLM consider removal of work and financial plan
requirements entirely for Category 6 applications.
As in the proposed rule, the final rule modifies this section to
make work and financial plans discretionary. In many instances such
plans will no longer be required; however, some more complex ROW
authorization situations may still require plans, which will benefit
both the applicant and the BLM. Otherwise, the final rule makes only
minor, nonsubstantive changes to the version of this section that
appeared in the proposed rule.
Section 2804.20 How does the BLM determine reasonable costs for
Category 6 right-of-way activities?
Section 2804.20 is 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 rule revises the last sentence in the introductory text of this
section, which stated, ``While the BLM considers your written analysis,
the BLM will not process your Category 6 application.'' Under this
final rule, if the BLM requests additional information, the BLM will
continue to work on your application while you are responding to our
request if a deposit has been received by the BLM as provided in Sec.
2804.19(b)(4). The BLM finds that this approach will lead to more
efficient ROW processing and monitoring.
Paragraph (a) of this section describes how the BLM applies the
factors that inform whether costs are reasonable as articulated in
Section 304(b) of FLPMA to determine the actual costs owed to the BLM.
The rule removes the reference to the BLM State Director, and instead
the provision refers only to the BLM. This does not change how the BLM
applies the ``reasonableness'' cost factors, and the decision is still
appealable under Sec. 2801.10. This change improves the cost recovery
process by enabling the BLM to make the determination regarding
reasonable costs for a Category 6 cost recovery at the appropriate
management level based on the BLM's internal delegations of authority
on a case-by-case basis. The final rule makes no changes to the version
of this section that appeared in the proposed rule.
Section 2804.21 What other factors will the BLM consider in determining
cost recovery fees?
The rule amends this section by revising the title and paragraphs
(a), (a)(2), and (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 is 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 rule removes the reference to the BLM State Director and
instead refers only to the BLM.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
Section 2804.25 How will the BLM process my application?
The proposed rule would have amended paragraph (a)(1) of this
section to add ``unless your fees are exempt.'' The final rule adds
``unless you are exempt from paying fees,'' which is a slight and
nonsubstantive change relative to the proposed rule. This clarifying
edit is necessary because the BLM is not required to identify your cost
recovery fee if you are exempt from fees.
The rule redesignates paragraph (c)(2) of this section as paragraph
(c)(3) and adds a new paragraph (c)(2). Paragraph (c)(2) of this
section requires an operating plan or agreement 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 operating plan or agreement 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. One commenter suggested the BLM revise the proposed rule
language in Sec. 2804.25(c)(2) to allow applicants to provide a draft
operating plan or agreement with their application to initiate
application processing and allow applicants to finalize the plan
collaboratively with BLM prior to grant issuance. The final rule
incorporates this suggestion. See Sec. 2805.21(a)(2).
Paragraph (c)(2) requires all powerline ROW holders to submit an
operating plan or agreement unless the ROW holder has an approved plan
that meets the requirements of Sec. 2805.21 or unless the ROW holder
can show good cause as to why it cannot meet this requirement. Under
this rule, the BLM relies on its general authority to condition ROW
grants (43 U.S.C. 1761(b)(1)) upon an applicants' submission of an
operating plan or agreement 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 a requirement for
an operating plan or agreement. However, if an applicant already has an
approved plan that meets the requirements of Sec. 2805.21(c) (``What
is an operating plan or agreement for electric transmission and
distribution rights-of-way?''), the applicant will not be required to
submit a separate plan.
The rule revises paragraph (d) of this section by changing
``completed application'' to ``complete application.'' This revision is
consistent with the addition of that term as a defined term in Sec.
2801.5. The rule also revises the table in paragraph (d) of this
section by adding the word ``Master'' in front of the word
``Agreement.''
One commenter expressed support for the proposed rule's requirement
that the BLM notify the applicant in writing if processing a Category
1-4 application is expected to take longer than 60 days. This is an
existing BLM requirement that has now been codified in regulation by
the final rule. See Sec. 2804.25(d). The BLM intends to complete as
many ROW applications as possible during the 60-day period.

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Section 2804.26 Under what circumstances may the BLM deny my
application?
The rule adds a new paragraph (a)(9) which provides that the BLM
can deny a ROW application when an applicant does not comply with a
deficiency notice (see Sec. 2804.25(c) of this subpart) within the
time specified in the notice or with a BLM request for additional
information needed to process the application.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
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 amends 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 acknowledges that
you may have to pay fees following a relinquishment of a grant.
The rule makes minor revisions to paragraphs (a) and (b) to make
the language more consistent with language elsewhere in the existing
regulations and this rule. Paragraph (c) explains how cost recovery
fees are applied under Category 5 or 6 if a holder relinquishes their
grant. The holder will be liable for all costs the United States has
incurred in connection with the grant, including relinquishment of the
grant. Any outstanding fees will be due to the BLM within 30 days after
the holder receives the bill. The holder will 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 it is
necessary to clarify and make explicit in regulation the process for
relinquishing a grant and explain to holders what is required of them.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
Subpart 2805--Terms and Conditions of Grants
Section 2805.11 What does a grant contain?
The rule adds a new paragraph (b) to Sec. 2805.11 to provide that
grants will include access (ingress and egress) rights to a ROW. The
rule redesignates 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
rule adds an explicit requirement for the authorized officer to include
rights of ingress and egress in the grant. Prior to 2005, the
regulations had included similar provisions for ingress and egress.
The BLM has re-introduced these provisions to address the need for
grants to include explicit provisions 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 requirement to include these
rights of ingress and egress in the grant will 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 likely
would not be appropriate. By contrast, the BLM may charge rent for
newly constructed roads or overland travel to authorized ROWs on public
lands. See the preamble discussion of the revisions to Sec.
2806.15(b)(3) for more information.
Three commenters expressed support for the proposed rule's
requirement that grants include both ingress and egress access to ROWs,
but these commenters asked for additional language to: (1) clarify that
the provision regarding ingress and egress will not result in double
cost recovery where access rights are already covered by the
authorization; (2) allow for a broad range of access rights, including
overland travel; and (3) recognize secondary rights of ingress and
egress and limit ingress and egress to routes that cross BLM parcels.
Another commenter recommended the BLM modify the proposed rule
language to allow alternate routes and emergency overland travel when
primary routes are impassible or closed to avoid resource damage.
With respect to the first three commenters' suggestions, the final
rule does not make any changes to the regulatory text. Under that the
final rule: (1) for minor category cost recovery calculations, the BLM
will ensure that there is not double counting of costs if there is
already existing access to a ROW; (2) alternative access rights may be
provided; however, unlimited overland travel must be approved by the
BLM local office because of potential damage to resource values; and
(3) the BLM will recognize valid secondary rights; however, the BLM can
only authorize access over public lands, as the BLM has no authority to
authorize access over private lands for ROW purposes. It will be the
responsibility of the potential ROW holder to secure any necessary
access across private land. The last commenter's recommendation to
allow alternate routes and emergency overland travel when primary
routes are impassible or closed to avoid resource damage may also be
covered by terms and conditions developed for a ROW grant. However,
there may be limitations on determining alternate routes due to
potential damages to resource values if some alternative routes were to
be allowed.
Another commenter requested that the BLM revise the proposed rule
language to streamline the notice for access road maintenance outside
of the ROW. The BLM elected not to revise the rule in response to this
comment as authorization of access outside the ROW is subject to NEPA
and NHPA, so it must be reviewed on a case-by-case basis to determine
if the proposed access outside the ROW would impact other resource
values. One option to address the commenter's concern would be for the
BLM and the applicant to develop terms and conditions in the ROW to
identify maintenance requirements and procedures outside the ROW.
A commenter also requested the BLM assist utilities with
coordinating road maintenance plans in an equitable manner for roads
with multiple users, including the BLM. The BLM elected not to revise
the final rule to address the commenter's request to coordinate road
maintenance agreements between multiple users. The BLM requires ROW
holders to enter into road maintenance agreements with other ROW
holders using the same roads. The road maintenance agreements are
contracts between private entities that determine among themselves the
best way to allocate costs and responsibilities for shared-road
maintenance. The BLM is not involved in the contract negotiations
between the private parties but does provide information to ROW
applicants regarding other road users with whom the applicant will need
to work to establish the required road maintenance agreement.
Having considered these and other comments, the final rule makes no
changes to the version of this section that appeared in the proposed
rule.
Section 2805.12 With what terms and conditions must I comply?
Former paragraph (a)(4) of this section required holders to do
everything reasonable to prevent and suppress wildfires on or within
the immediate

[[Page 25933]]

vicinity of the ROW. The language has been changed from ``immediate
vicinity of the ROW'' to ``adjacent to the ROW'' to be consistent with
the rule's revision of the definition of ``substantial deviation.''
Paragraph 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. This rule expands
that provision to extend to any operating plan or agreement developed
under the new section 512 of FLPMA and these regulations.
Paragraphs 2805.12(c)(5) and (d)(3) are 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. If a holder's use is posing a health or
safety hazard to the public, per the rule, the BLM is empowered to
address it immediately.
One commenter recommended the BLM revise Sec. 2805.12(a)(4) to
clarify that utilities retain discretion to determine what fire
prevention actions they will carry out in, or adjacent to, the ROW.
Another commenter stated that the BLM should eliminate language in the
proposed rule that would tie fire suppression actions to ROW grants.
A utility's fire prevention actions will be provided in the
operating plan or agreement, as approved by the BLM. This final rule
does not eliminate language that ties fire suppression actions to the
ROW because they are important terms and conditions with which a
utility must comply to protect other public land resource values and
human health and safety.
The final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
Section 2805.14 What rights does a grant provide?
The rule revises 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 final rule revises Sec. 2805.14(b) for clarity. Paragraph (b)
already requires BLM authorization before a grant holder may ``allow
other parties'' to use a facility. As revised, the regulation will
refer to this practice explicitly as ``subleasing.'' The revision will
also align with the language in this section with that in new Sec.
2865.14(b) providing consistency between the regulations governing
communications uses and those governing all other uses. This change was
not included in the proposed rule.
The rule revises Sec. 2805.14(d) by removing the word ``minor''
from the description of permissible 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. These revisions provide the
necessary detail for the ROW holder to determine 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.
Several commenters suggested changes to Sec. 2805.14(d) to make it
broader or to make it narrower. One commenter suggested the BLM amend
Sec. 2805.14(d) to allow, in addition, for ``operations and
maintenance activities.'' One commenter stated that the BLM should
revise the proposed rule language to clarify that vegetation management
to maintain the ROW includes the right to cut or trim off-ROW
vegetation when the utility determines it is necessary as part of its
vegetation management program. One commenter expressed concern that
proposed revisions to Sec. 2805.14(d) could result in adverse impacts
to other land users and the environment and recommended the BLM modify
Sec. 2805.14(d) to add a caveat that permissible action would be
undertaken as defined in the projects' operating plans or agreements.
See the preamble discussion of Sec. 2801.5 for additional
discussion of comments regarding the appropriate scope of ``vegetation
management'' under these regulations. This final rule retains the
language in Sec. 2805.14(d) but revises the definition of hazard tree
to be consistent with the USFS definition. The USFS definition provides
more context for the type of vegetation and defines a hazard tree as:
[l]ikely to cause substantial damage to the powerline facility; disrupt
powerline facility service; come within 10 feet of the powerline
facility; or come within the minimum vegetation clearance distance as
determined in accordance with applicable reliability and safety
standards and as identified in the special use authorization for the
powerline facility and the associated approved operating plan or
agreement (36 CFR 251.51). This definition explains what work can be
done outside of the holder's ROW to maintain it. The final rule makes
no changes to the version of paragraph (d) that appeared in the
proposed rule.
Section 2805.14(e) is revised to allow the holder to use vegetation
removed during maintenance of the ROW. The use of existing vegetation
will reduce non-native species intrusion and expedite maintenance by
the holder. The paragraph is also 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 final
rule makes no changes to the version of paragraph (e) that appeared in
the proposed rule.
Section 2805.15 What rights does the United States retain?
This rule rephrases paragraph (a) of this section to address the
nature of the 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 rule retains the requirement to provide the BLM access to and
within the lands or facilities.
Section 2805.15(e) adds 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 will require the BLM to undergo a
new decision-making process. Any such new decision must comply with
applicable laws, including NEPA, and may require the BLM to complete a
new environmental analysis, use an existing environmental analysis, or
rely on a categorical exclusion.
Under paragraph (f) of this section, the BLM can terminate an
authorization for non-compliance. Section 2805.12 describes the terms
and conditions that a grant holder must comply with and provides that
the BLM can terminate a grant for non-compliance. This paragraph
reinforces this potential outcome.
Under paragraph (g) of this section, the BLM can require a holder
to submit financial documents related to a holder's authorization. This
addition is consistent with the requirements of existing Sec.
2805.12(a)(15).
The final rule makes no changes to the version of this section that
appeared in the proposed rule.

[[Page 25934]]

Section 2805.16 If I hold a grant, what cost recovery fees must I pay?
The rule amends Sec. 2805.16 by changing the word ``monitoring''
in the title to ``cost recovery'' such that the title reads, ``If I
hold a grant, what cost recovery fees must I pay?'' The section is also
amended by revising paragraph (a), adding a new paragraph (b), revising
current paragraph (b), and redesignating it as paragraph (c).
As previously discussed, the rule removes the monitoring cost
recovery fee table formerly located under Sec. 2805.16(a). The rule
also adds a sentence referring the reader to Sec. 2804.14(b), where
they can find the cost recovery table.
Under new Sec. 2805.16(b), the cost recovery fee schedule for
Categories 1 through 4 will be updated on an annual basis based on the
previous year's change in the IPD-GDP, and the fees for Category 5 will
be updated according to a given project's Master Agreement.
Section 2805.16(c), which contains the provisions of former Sec.
2805.16(b), explains where to obtain a copy of the current year's cost
recovery fee schedule. The rule provides updated contact information
for the holder to request the schedule from the BLM's Division of
Lands, Realty and Cadastral Survey.
One commenter stated that proposed revisions to the Category 1
processing fee that includes monitoring fees for work estimated to take
1 hour or less should be eliminated because the change is contrary to
both FLPMA and the MLA and would create a financial burden to industry.
This comment is similar to a comment on Sec. 2804.14. Please see the
response above in the discussion of Sec. 2804.14.
The final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
Section 2805.21 What is an operating plan or agreement for electric
transmission and distribution and other rights-of-way?
Section 2805.21 codifies many of the provisions of Section 512 of
FLPMA into the BLM's regulations. Section 512(c) of FLPMA describes the
requirements for facility inspection, operations and maintenance, and
vegetation management plans. Section 2805.21 describes the requirements
for operating plans or agreements, which are consistent with the
requirements of the plans described in Section 512 of FLPMA.
Under Sec. 2804.25(c)(2) of the rule, and as reflected in
paragraph (a)(1), operating plans or agreements are required for all
new, renewed, or amended electric transmission and distribution ROWs.
In addition, under paragraph (a)(2), such plans may be submitted to the
BLM on a voluntary basis by holders of existing electric transmission
and distribution ROWs. Operating plans or agreements may 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.
Paragraph (b) of this section refers to the Electric Reliability
Organization (ERO) standards and provides that those standards may be
incorporated into operating plans or agreements 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 apply only to holders who are part of a bulk power system,
and holders subject to these standards may incorporate them into their
operating plan or agreement. 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 operating plan or
agreement will help to provide consistency between NERC standards and
the plans submitted to the BLM and USFS.
Two commenters requested that the BLM revise Sec. 2805.21(b) to
recognize that: (1) utilities do not manage to the NERC-defined minimum
vegetation clearance distance; instead, their goal is to avoid any
possibility of encroachment; and (2) vegetation management strategies
must respond to all operating conditions. They recommended that, when
referring to reliability standards, the rule should indicate that the
statutory term ``disruption'' can include things such as arcing
potential and that compliance with the reliability standards requires
vegetation be cleared to a MVCD plus X feet safety zone (with X being
defined by the utility). Similarly, one commenter suggested the BLM
revise the proposed rule language to clarify that the utility, not the
BLM, is responsible for choosing the vegetation clearance distances and
the management strategies it will employ to assure vegetation will not
encroach on MVCD or violate reliability standards under any operating
conditions.
This final rule retains the proposed language in Sec. 2805.21(b)
but revises the definition of a hazard tree to be consistent with the
USFS's definition. The USFS definition extends to vegetation that is
dead or likely to die or fail and ``come[s] within the MVCD as
determined in accordance with applicable reliability and safety
standards and as identified in the special use authorization for the
powerline facility and the associated approved operating plan or
agreement.'' The BLM further incorporated the USFS definition of MVCD
which addresses the prevention of flashover. Approved operating plans
or agreements will address any safety zones needed by the ROW holder.
Paragraph (c) of this section describes the requirements for
operating plans or agreements, consistent with Section 512(c) of FLPMA
and with the USFS final rule implementing Section 512. Under paragraph
(c)(1) of this section, operating plans or agreements must identify the
applicable facilities to be maintained.
Two commenters requested the BLM integrate NERC standards and
definitions into BLM operating plans and agreements and powerline
authorizations and avoid implementing any standards or requirements
that could cause conflict with the NERC standards. One commenter
further requested the BLM provide regulatory guidance to assist agency
staff in understanding these reliability standards.
The BLM does not believe these changes are necessary. Operating
plans or agreements will be developed collaboratively with the ROW
applicant, which will allow the applicant to submit provisions that are
NERC compliant. Also, the BLM intends to incorporate reliability
standards and regulatory guidance into staff training, which is a more
appropriate venue for communicating industry standards.
Paragraph (c)(2) of this section requires an operating plan or
agreement to account for the holder's own operations and maintenance
plans for the applicable facilities. Many ROW holders have existing,
internal plans for

[[Page 25935]]

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 requirements for operating
plans or agreements. A holder would not need to submit a new operating
plan or agreement if their existing plan or agreement meets the
requirements of this section.
Paragraph (c)(3) of this section requires that a plan describe how
a holder will operate and maintain a ROW and facility, including for
vegetation management. These operations, maintenance, and fire
prevention methods may 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
operating plan or agreement how they plan to meet those standards.
Under paragraph (c)(4) of this section, an operating plan or
agreement must include schedules for a 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 is further discussed in the preamble discussion of Sec.
2805.22.
Four commenters requested the BLM revise Sec. 2805.21(c)(4)(ii) to
clarify that routine maintenance activities do not require approval by
the BLM if they are part of an approved plan.
The scope of routine maintenance that will require subsequent
approval will be determined on a case-by-case basis and will be
described in each individual operating plan or agreement. The final
rule was not changed in response to these comments as the rule already
contains provisions to this effect.
Paragraph (c)(5) of this section requires that an operating plan or
agreement describe processes for identifying changes in conditions and
modifying the approved operating plan or agreement, if necessary.
Either the BLM or holder can determine that the conditions in the ROW,
which may include environmental or accessibility conditions, have
changed. The operating plan or agreement must describe how the BLM and
the ROW holder will communicate and initiate any necessary plan
modifications. Communications between BLM and the ROW holder are
discussed further in paragraph (e) of this section.
Paragraph (c)(6) of this section requires that the operating plan
or agreement provide for removal and disposal of cut trees and
branches, including plans for sale of forest products. One commenter
requested that the BLM modify Sec. 2805.21(c)(6) to replace the phrase
``removal and disposal'' with the word ``disposition'' to describe what
a holder must do with cut trees and branches. The BLM agrees with this
comment and the final rule includes the suggested change.
Several commenters stated that the BLM should further modify the
proposed rule language to clarify the requirements for operating plans
or agreements. In response, the BLM revised Sec. 2805.21(c)(3) to
clarify that an operating plan or agreement must include vegetation
management, inspection, operation and maintenance, and fire prevention
plans. Further revision of this section was not necessary as other
provisions provide sufficient clarity.
Under paragraph (d) of this section and consistent with Section
512(c)(4)(A) of FLPMA, the BLM will, to the extent practicable, review
and approve an operating plan or agreement within 120 days of receiving
the plan or agreement. Two commenters suggested that the BLM modify
proposed rule language to clarify: (1) that the 120-day review period
for an operating plan or agreement begins when the applicant submits a
completed application as defined in the Proposed Rule; (2) that
requests for additional information during the review process
(including response time from the applicant and the incorporation of
additional applicant responses) would not pause the 120-day review
timeframe; and (3) how compliance and consultation requirements under
applicable environmental laws, including the NEPA, Endangered Species
Act, and NHPA, will be handled, either within the 120-day review
timeframe or after plan approval but prior to commencement of on-the-
ground activities.
For a renewal application, the 120-day period will start upon
receipt and acknowledgement of a complete application with a compliant
operating plan or agreement. For a new application or amendment to an
existing ROW, the 120-day period will start upon granting the ROW.
Compliance and consultation requirements under applicable environmental
laws, including the NEPA, Endangered Species Act, and NHPA, will be
addressed prior to the BLM granting a new or amended ROW. For an
existing ROW with no Federal action needed, the 120-day period will
start upon the receipt of a compliant operating plan or agreement. Any
operating plan or agreement will be approved, to the maximum extent
practicable, within the statutory 120-day period with the understanding
that factors such as the time it takes an applicant to respond to a
request for additional information, the number of proposed operating
plans and agreements under review by an authorized officer, and the
number of powerline facilities covered under a single operating plan or
agreement may affect the practicability of approving a proposed
operating plan or agreement within 120 days.
Paragraph (e) of this section provides that, when an operating plan
or agreement requires modifications, the BLM will provide advance
reasonable notice to a holder that a modification is necessary,
following which the holder must submit the proposed modification to the
BLM. The BLM will, to the maximum extent practicable, review and
approve the proposed operating plan or agreement modification in the
same 120-day timeframe that applies to approval of new plans. This
timeframe is 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 operating
plan or agreement, 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.
Paragraph (f) of this section provides that certain holders may
enter into an agreement with the BLM in lieu of an operating plan. An
agreement must contain the same general requirements described in this
section. Agreements need to include schedules, as described in
paragraph (c)(4) of this section and are subject to the same
modification requirements of paragraph (e) of this section.
Paragraph (g) of this section describes the criteria that a holder
must meet to be eligible to enter into an agreement. A holder may 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 generally apply to rural electric cooperatives and other

[[Page 25936]]

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.''
One commenter stated that the BLM should cite Title XII, Section
215 of the Energy Policy Act as a related law in this section. The BLM
does not believe this change is necessary since Sec. 2801.9(b) refers
to the Federal Power Act of 1935, which would include any subsequent
amendments to the 1935 Act, such as Title XII of the Energy Policy Act.
Several commenters requested that the BLM establish a standardized
notice and approval process for ROW processing as the USFS has. The BLM
worked closely with the USFS as the USFS developed its policy
surrounding FLPMA Section 512. The BLM intends to provide further
clarification to ROW applicants through policy and to develop new
templates and review existing templates that can be used to expedite
processing of ROWs.
Two commenters also proposed a new NEPA categorical exclusion for
vegetation management as follows:
Approval of operating plan or agreements, and activities conducted
in accordance with an approved operating plan under a right-of-way
grant for an electric transmission and distribution facility.
Conversely, two commenters expressed concern that operating plans
or agreements could have extraordinary circumstances or impacts outside
the ROW and should not automatically be subject to a categorical
exclusion.
The BLM appreciates the suggestion of new categorical exclusions
and may pursue this avenue. The BLM must work with the Council on
Environmental Quality and possibly others to establish a new
categorical exclusion, and doing so is beyond the scope of this
rulemaking. The BLM will consider using a categorical exclusion when
appropriate. The BLM must review for the presence of extraordinary
circumstances on every project that may be categorically excluded.
One commenter indicated that the proposed rule should cover only
``green'' energy projects. The BLM has the responsibility to process
all applications and manage all grants consistently. For consistent
land management, the BLM will not change the rule to cover only
``green'' projects.
Three commenters requested the BLM modify the proposed rule to
include Master Agreement language or templates to establish a master
permit and agreement process for operating plans or agreements at the
state office level that can be implemented by operators and BLM field
offices.
The BLM did not revise the language in the proposed rule in
response to these comments as the agency is addressing these requests
through a pilot master operations and maintenance and consolidation
program in the BLM California State Office. The BLM hopes to duplicate
this program in other states. The BLM anticipates developing policies
at the national level that would then be adopted at the BLM state level
and adjusted as needed for each state.
In all, the final rule includes only minor, nonsubstantive changes
to the version of this section that appeared in the proposed rule.
Section 2805.22 Special Provisions for Vegetation Management for
Electric Transmission and Distribution Rights-of-Way
Section 2805.22 provides that ROW holders can conduct vegetation
management related activities and distinguishes between emergency and
non-emergency conditions. This section implements the requirements of
Section 512(c) and (e) of FLPMA.
Paragraph (a) of this section identifies the conditions that are
considered Emergency Conditions and what the holder is allowed to do
during Emergency Conditions without immediate notification to the BLM.
An Emergency Condition exists when one or more hazard trees have
contacted, or present an imminent danger of contacting, an electric
transmission or distribution line. The rule specifies that this threat
can arise from a hazard tree within or adjacent to a transmission line
ROW. Under paragraph (a)(1) of this section, holders may prune or
remove the hazard tree to avoid the disruption of electric service and
to eliminate immediate fire and safety hazards. Paragraph (a)(2)
requires the holder to notify the BLM within one calendar day after
taking any such action.
One commenter recommended the BLM revise Sec. 2805.22(a) to
clarify that the grant holder has discretion as to what vegetation
poses an imminent danger of contacting a transmission line or is an
immediate fire and safety hazard. This commenter noted that emergencies
may involve issues other than just vegetation in imminent threat to
contact a line. They also requested that the one-day emergency
notification requirement be clarified to mean within 1 business day of
the action.
The BLM understands that there are emergencies other than
vegetation issues, and this rule does not preclude holders from
addressing those emergencies. This rule implements Section 512 of
FLPMA, which addresses vegetation management. Therefore, the
emergencies anticipated under this rule should only apply to vegetation
management. The BLM believes that the grant holder has discretion as to
what vegetation must be trimmed or pruned under Section 512 of FLPMA
and these implementing regulations. The BLM will maintain a one-day
emergency notification requirement, regardless of whether that one day
is a business day, because emergencies require immediate resolution.
Paragraph (b) of this section identifies Non-Emergency Conditions
for which the holder of a powerline ROW can conduct vegetation
management activities. The holder must conduct activities in accordance
with the terms and conditions of the ROW grant, Sec. Sec.
2805.12(a)(4) and 2805.14(d), and any BLM-approved operating plan or
agreement.
Paragraph (b)(1) of this section provides when a holder needs to
request approval to conduct vegetation management activities. Under
paragraph (b)(1)(i), a holder must seek approval from the BLM if the
operating plan or agreement specifically requires prior approval. Prior
approval for an activity may be required in an operating plan or
agreement if the activity could have cultural or environmental impacts.
Prior approval is required under paragraph (b)(1)(ii) of this
section if the activity is not described in an approved operating plan
or agreement. Paragraph (b)(2) of this section provides that if the BLM
does not respond to a request within the timeframe described in an
approved operating plan or amendment, and the vegetation management
activity is consistent with the holder's approved operating plan or
amendment, a holder may proceed with the vegetation treatment
activities. This provision will help ensure that holders can undertake
necessary vegetation management activities to further support the goals
of reducing fire risk.
Holders who do not have a BLM-approved operating plan or agreement
will not be affected by paragraphs (b)(1) or (b)(2) of this section.
Holders of ROWs in effect as of the effective date of this final rule
will not have an operating plan or agreement until they amend or renew
their ROW grant, or until they voluntarily submit an operating plan or
agreement for approval.

[[Page 25937]]

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 operating plan or agreement,
holders will 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, holders will be encouraged to submit operating plans or
agreements for existing ROWs to the BLM to improve coordination
regarding vegetation management and wildfire risk reduction.
Paragraph (c) of this section mirrors Sec. 2805.12(a)(4) but adds
specific examples of reasonable actions that can be taken by the
holder, including pruning or removal of vegetation and cooperating with
the BLM to investigate fires.
One commenter asked the BLM to update ePlanning pages to disclose
maintenance activities or public land closures associated with
vegetation management. The BLM believes that ePlanning is not the
appropriate venue for tracking vegetation management requests but is
exploring alternative options for consolidation and disclosure of
vegetation management requests consistent with FLPMA Section 512(h).
The final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
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 Sec. 2806.13(e), the rule eliminates limiting conditions on the
BLM's ability to collect uncollected or undercollected rent, which
under the existing regulation only extends to cases in which there is a
clerical error, an adjustment to rental schedules, or an omission or
error in complying with terms and conditions. The BLM can now collect
any rents and fees due to the United States.
New Sec. 2806.13(h), explicitly provides that rent is due
regardless of whether a courtesy bill has been sent or received. This
addition clarifies current BLM practice to the public.
The final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
Section 2806.14 Under what circumstances am I exempt from paying rent?
In Sec. 2806.14(a)(4), the provisions governing communications
sites are deleted. The exemptions described in Sec. 2866.14(b)
encapsulate the language that has been removed from Sec. 2806.14.
The final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
Section 2806.15 Under what circumstances may BLM waive or reduce my
rent?
The BLM has received feedback from customers about inconsistencies
in how BLM approves waivers or reductions in rent. Therefore, Sec.
2806.15(b) clarifies that a BLM State Director is the authorizing
official with respect to rental reductions and waivers.
Under former paragraph (b)(3) of this section, the BLM could not
reduce or waive rent if a holder has a ROW in connection with the grant
at issue for which the United States receives compensation. The final
rule rewrites that 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 revisions are consistent
with Sec. 2805.11(b), which requires a grant to include and identify
new and/or existing routes that would be used for ingress and egress.
The BLM will 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 will charge appropriate rent for
roads to ROWs on public lands newly constructed by a holder. See the
preamble discussion of Sec. 2805.11 for more information.
Existing Sec. 2806.15(c) has been 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 paragraph (b) of this section, it is appropriate to redesignate
existing paragraph (c) as paragraph (b)(5). Waiving or reducing rent
under paragraphs (b)(1) through (b)(5), as revised by this rule, will
be at the discretion of the BLM State Director. This revision is
consistent with existing BLM practice.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
Section 2806.20 What is the rent for a linear right-of-way grant?
Paragraph (c) of this section is revised to update the contact
address of the BLM and highlight availability of the Per Acre Rent
Schedule on the BLM website.
The final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
Sections 2806.30 Through 2806.44
The rule removes Sec. Sec. 2806.30 through 2806.44, including the
header ``COMMUNICATION SITE RIGHTS-OF-WAY'' that had preceded Sec.
2806.30. Many of the requirements of these sections are now set out in
new part 2860, which consolidates 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 rule.

Table 2--Former Subpart 2806 vs. New Subpart 2866
--------------------------------------------------------------------------------------------------------------------------------------------------------
New section 2866 based on or moved from former section 2806
---------------------------------------------------------------------------------------------------------------------------------------------------------
Former section Former title New section New title
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subpart 2806 Annual rents and payments Subpart 2866 Annual rents and payments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Moved from Sec. 2806.30................ What are the rents for communication site Sec. 2866.30 What are the rents for Communications Uses?
rights-of-way?
Moved from Sec. 2806.31................ How will BLM calculate rent for a right-of-way Sec. 2866.31 How will the BLM calculate rent for
for communication uses in the schedule? Communications Uses in the schedule?
Moved from Sec. 2806.32................ How does BLM determine the population strata Sec. 2866.32 How does the BLM determine the population
served? strata served for your facility?

[[Page 25938]]

Moved from Sec. 2806.33................ How will BLM calculate the rent for a grant or Sec. 2866.33 How will the BLM 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 the rent for a grant or Sec. 2866.34 How will the BLM calculate the rent for a
lease authorizing a multiple-use multiple-use communication facility grant?
communication facility?
Moved from Sec. 2806.35................ How will BLM calculate rent for private mobile Sec. 2866.35 How will the BLM calculate rent for private
radio service (PMRS), internal microwave, and mobile radio service (PMRS), internal
``other'' category users. microwave, and ``other'' category uses?
Moved from Sec. 2806.36................ If I am a tenant or customer in a facility, Sec. 2866.36 If I am a tenant or customer in a facility,
must I have my own grant or lease and if so, must I have my own grant and if so, how will
how will this affect my rent? this affect my rent?
Moved from Sec. 2806.37................ How will BLM calculate rent for a grant or Sec. 2866.37 How will the BLM calculate rent for a grant
lease involving an entity with a single use involving an entity with a single use
(holder or tenant) having equipment or (holder or tenant) having equipment or
occupying space in multiple BLM-authorized occupying space in multiple BLM-authorized
facilities to support that single use? facilities to support that single use?
Moved from Sec. 2806.38................ Can I combine multiple grants or leases for Sec. 2866.38 Can I combine multiple grants for facilities
facilities located on one site into a single located at one site into a single grant?
grant or lease?
Moved from Sec. 2806.39................ How will BLM calculate rent for a lease for a Sec. 2866.39 How will the BLM calculate rent for a grant
facility manager's use? for a facility manager's use?
Moved from Sec. 2806.40................ How will BLM calculate rent for a grant or Sec. 2866.40 How will the BLM calculate rent for an
lease for ancillary communication uses authorization for ancillary Communications
associated with communication uses on the Uses associated with Communications Uses on
rent schedule? the rent schedule?
Moved from Sec. 2806.41................ How will BLM calculate rent for communication Sec. 2866.41 How will the BLM calculate rent for
facilities ancillary to a linear grant or communications facilities ancillary to a
other use authorization? linear grant or other use authorization?
Moved from Sec. 2806.42................ How will BLM calculate rent for a grant or Sec. 2866.42 How will the BLM calculate rent for
lease authorizing a communication use within Communications Uses within a federally owned
a federally-owned communication facility? communications facility?
Moved from Sec. 2806.43, but the terms How does BLM calculate rent for passive Sec. 2866.43 How does the BLM calculate rent for passive
would be moved to Sec. 2861.5. reflectors and local exchange networks? reflectors and local exchange networks?
Moved from Sec. 2806.44................ How will BLM calculate rent for a facility Sec. 2866.44 How will the BLM calculate rent for a
owner's or facility manager's grant or lease facility owner's or facility manager's grant
which authorizes communication uses? which authorizes Communications Uses?
--------------------------------------------------------------------------------------------------------------------------------------------------------

Section 2806.52 Rents and Fees for Solar Energy Development Grants
This section revises 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.
The final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
Section 2806.62 Rents and Fees for Wind Energy Development Grants
The proposed rule proposed revisions to 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. However, the BLM intends to address this in a separate
rulemaking. Therefore, this portion of the proposed rulemaking is not
carried forward in this final rule.
Subpart 2807--Grant Administration and Operation
Section 2807.10 When can I start activities under my grant?
One commenter stated that the BLM should modify Sec. 2807.10 in
the rule to clarify when a grantee may start activities under a grant.
More specifically, they stated that this provision should be revised to
clarify that it only applies to activities requiring a Notice to
Proceed in approved operating plans. This discussion is outside the
scope of the proposed rule and would require a full rulemaking process
to address it. Therefore, the BLM will not address this comment in this
final rule, and the final rule makes no changes to Sec. 2807.10.
Section 2807.12 If I hold a grant, for what am I liable?
The rule redesignates existing paragraph (g) of this section as
paragraph (h) and adds a new paragraph (g). New paragraph (g) codifies
the liability provisions at Section 512(g) of FLPMA and provides that
the BLM may not impose strict liability in certain circumstances.
The final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.

[[Page 25939]]

Section 2807.17 Under what conditions may the BLM suspend or terminate
my grant?
The rule amends Sec. 2807.17(b)(2) by changing the word
``terminate'' to ``relinquish.'' This change aligns with changes made
to Sec. 2886.17 and with the nomenclature that the BLM uses when
processing ROWs. The rule also adds 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 rule redesignates paragraph (b)(3) as
paragraph (b)(4).
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
Section 2807.20 When must I amend my application, seek an amendment of
my grant, or obtain a new grant?
The rule amends paragraph (b) of this section by replacing
``processing and monitoring fees'' with ``cost recovery fees'' for
consistency with other revisions in this rule.
Section 2807.20(d) explains that pre-FLPMA grants (i.e., those
issued before October 21, 1976) cannot be amended, renewed, or
reinstated. Section 706 of 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 rule combines existing language from different parts of
paragraph (d), including paragraph (d)(2), as paragraph (d)(1) and
revises the text to clarify that, when a holder seeks to amend a pre-
FLPMA grant, the BLM will 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 holder agrees to accept a wholly new and
comprehensive grant of the ROW under FLPMA.
Paragraph (d)(2) of this section requires a new application and
grant for expiring authorizations. Paragraph (d)(3) requires a new
application and grant if a pre-FLPMA authorization is terminated due to
non-compliance. Finally, existing paragraph (d)(1) is redesignated as
paragraph (d)(4) and notes that the BLM will issue any new
authorization under the authority of FLPMA and explains that the new
authorization may have the same terms and conditions and annual rents
as the original grant.
One commenter requested the BLM modify Sec. 2807.20 to clarify
that when the grant holder is a Federal agency, the decision to
terminate the existing grant and issue a new grant must be a mutual
decision pursuant to Sec. 2807.17(d). The BLM has not made the
proposed change as it believes that Sec. 2807.17(d) is sufficiently
clear on this point. Nor does the final rule make any other changes to
the version of this section that appeared in the proposed rule.
Section 2807.22 How do I renew my grant?
The rule establishes new customer service standards for the BLM for
renewal applications. The rule modifies 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 will confirm that, until the BLM issues a decision on
the renewal application, the holder's existing grant will remain valid,
provided that the holder of the authorization remains in compliance,
including with rent and bonding obligations.
The rule adds a new paragraph (h) to this section that establishes
when renewal applications will 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 will not be held to the customer service standards for
processing the application. This paragraph is not a substantive change
from existing practice.
One commenter stated that decisions whether to renew grants should
consider the multiple use mission of the BLM and whether closure would
be beneficial to wildlife and the public. This commenter also requested
that the 60-day time limit in Sec. 2807.22(f) be eliminated to allow
for adequate time for public input.
The BLM complies with NEPA on each renewal, as well as the
Endangered Species Act and the NHPA. The new Sec. 2807.22(f) allows
the holder to continue to pay rent and maintain a valid authorization
until the BLM has properly processed the ROW renewal, including
completing appropriate NEPA analysis and land use plan consistency
review. Upon renewal, the BLM would issue a new grant likely with new,
updated stipulations. The 60-day time limit is for determination of
timeliness and sufficiency of an application, not completing NEPA
analysis, surveys or public comment. This final rule does not make any
changes to this paragraph as it appeared in the proposed rule.
One commenter noted that allowing ROW holders to continue to
operate under an existing grant while the BLM and the ROW holder go
through the grant renewal process helped ROW holders. The BLM
appreciates the support and acknowledgement of the value of maintaining
operations during the renewal process.
The final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
Subpart 2808--Trespass
Section 2808.10 What is a trespass?
The BLM revised this paragraph in the final rule to make explicit
that ``subleasing'' without BLM authorization is a trespass. The
regulations already prohibited this practice, so the addition of the
term ``subleasing'' merely clarifies the scope of the trespass
provision. This change also makes the language of this section
consistent with the communications uses trespass provision at new Sec.
2868.10. This provision did not appear in the proposed rule.
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
This final rule does not carry forward a proposed revision to this
section in the proposed rule because the BLM plans to address the
distinction between designated and undesignated leasing areas in a
separate rulemaking.

43 CFR Part 2860 Communications Uses

The rule establishes part 2860, Communications Uses. This new part
explains the requirements for communications uses grants and
consolidates all communications use-specific provisions into one
location. The requirements of part 2800 will continue to apply to
communications uses grants, unless inconsistent with any provision of
this new part. Some sections in part 2860 contain provisions that were
removed from part 2800. Some sections in part 2860 have a direct
parallel to sections in part 2800 but contain additional requirements
that apply specifically to communications uses. This preamble describes
how the rule differs from existing requirements. Subparts 2861 through
2865 and 2868

[[Page 25940]]

are generally based on the provisions of existing subparts 2801 through
2805 and 2808, respectively, but contain additional communications use
requirements. Table 3 shows the relationship between subparts 2861
through 2865 and 2868 and subparts 2801 through 2805 and 2808. Most of
the requirements pertaining to communications uses in existing subpart
2806 were moved to subpart 2866. Table 4 shows the relationship between
subpart 2866 and subpart 2806. This preamble describes new or revised
provisions. Provisions not discussed are substantially similar to their
existing counterpart.

Table 3--Sections of the Former Rule Supplementing the 2860 Regulations
for Communications Uses
------------------------------------------------------------------------
Former section Former title New section New title
------------------------------------------------------------------------
General General
Subpart 2801 information Subpart 2861 information
------------------------------------------------------------------------
N/A................. N/A. Sec. 2861.1 What
requirements of
part 2800 apply
to my grant?
Sec. 2801.2....... What is the Sec. 2861.2 What is the
objective of objective of
BLM's right-of- the BLM's
way program? Communications
Uses program?
Sec. 2801.5(b).... What acronyms 2861.5(b) What acronyms
and terms are and terms are
used in the used in the
regulations in regulations in
this part? this part?
Sec. 2801.8....... Severability. Sec. 2861.8 Severability.
Sec. 2801.9(a)(5). When do I need a Sec. 2861.9 When do I need a
grant? grant?
------------------------------------------------------------------------
Subpart 2802 Lands Available Subpart 2862 Lands Available
for FLPMA for Grants
Grants
------------------------------------------------------------------------
Sec. 2802.11...... How does the BLM Sec. 2862.11 How does the BLM
designate right- designate
of-way communications
corridors and sites and
designated establish
leasing areas? communications
site management
plans?
------------------------------------------------------------------------
Subpart 2804 Applying for Subpart 2864 Applying for
FLPMA Grants Grants
------------------------------------------------------------------------
Sec. 2804.10...... Who may hold a Sec. 2864.10 What should I do
grant? before I file
my application?
Sec. 2804.12...... What must I do Sec. 2864.12 What must I do
when submitting when submitting
my application? my application?
Sec. 2804.24...... Do I always have Sec. 2864.24 Do I always have
to submit an to use Standard
application for Form 299 when
a grant using submitting my
Standard Form application for
299? a
Communications
Uses
authorization?
Sec. 2804.25...... How will BLM Sec. 2864.25 How will the BLM
process my process my
application? Communications
Uses
application?
Sec. 2804.26...... Under what Sec. 2864.26 Under what
circumstances circumstances
may BLM deny my may the BLM
application? deny my
application?
Sec. 2804.35...... How will the BLM Sec. 2864.35 How will the BLM
prioritize my prioritize my
solar or wind Communications
energy Uses
application? application?
------------------------------------------------------------------------
Subpart 2805 Terms and Subpart 2865 Terms and
Conditions Of Conditions Of
Grants Grants
------------------------------------------------------------------------
Sec. 2805.14...... What rights does Sec. 2865.14 What rights does
a grant a grant
provide? provide?
------------------------------------------------------------------------
Subpart 2808 Trespass Subpart 2868 Communications
Uses Trespass
------------------------------------------------------------------------
Sec. 2808.10...... What is a Sec. 2868.10 What is a
trespass? Communications
Uses trespass?
------------------------------------------------------------------------

One commenter expressed support for consolidating all the BLM
communications use rules into a new part 2860 to help streamline
application development and processing. Two other commenters also
expressed general support for the BLM's efforts to streamline
regulations and to remove barriers to wireless infrastructure
deployment.
The BLM agrees that moving regulations pertaining to communications
uses to its own part will help streamline the regulations.
Some commenters expressed concern that this proposed rule could
result in undesirable economic growth and development for some local
communities. The BLM agrees there may be some growth in rural areas due
to additional broadband deployment. The ROW authorization process
includes compliance with NEPA, which would include analysis of the
impacts of communication facilities on development and allow for public
input.
Commenters argued that use of a categorical exclusion to comply
with NEPA would not be appropriate for all decisions to approve
communication uses and that streamlining should only be permitted if
there are no visual or environmental impacts; the project is not within
5 miles of a residentially zoned neighborhood; tower placement and
specifications comply with the United States Fish and Wildlife
Service's (USFWS) Recommended Best Practices for Communication Tower
Design, Siting, Construction, Operation, Maintenance, and
Decommissioning; and the community meets FCC criteria for being
underserved and no other options for achieving high speed (broadband)
internet connection are available.
The BLM agrees that it should comply with NEPA for proposed
actions, which includes using categorical exclusions when they apply,
and the BLM uses the USFWS's Recommended Best Practices.
Subpart 2861--General Information
One commenter requested that the BLM modify the proposed rule to
clarify that minor modifications that do not substantially change the
physical dimensions of a tower or base station do not trigger the need
for a new authorization.
The BLM believes that the final rule adequately addresses the
commenter's concern. As written, amended authorizations are required
when additional areas are needed for the existing facility such as the
addition of a generator or expansion of a building or tower. A new
authorization is required when an applicant does not co-

[[Page 25941]]

locate within or on an existing authorized facility. Minor actions such
as the replacement or addition of antennas and in-kind facility
maintenance are considered maintenance actions unless the action
deviates from what has already been authorized. (See the definition of
substantial deviation in Sec. 2801.5(b) and related discussion above
in this preamble).
One commenter recommended that the BLM modify the proposed rule to
include language specifying that installation and use of fiber for
Federal communication purposes is authorized and no amendment to the
ROW is necessary.
The BLM did not make changes to the rule in response to this
comment. All actions taken on Federal lands require an authorization,
supported by appropriate NEPA analysis, including communications uses
by Federal agencies. The exception is when a use is ancillary to the
primary use and held by the same company (e.g., fiber optic for a
powerline used solely by that power company holding the ROW). In such
cases, an amendment to the existing ROW may be sufficient.
One commenter encouraged the BLM to clarify that appurtenant uses,
such as installation of fiber and related operations, upgrades, and
maintenance of the fiber system, may be included in the authorization
for a transmission line under part 2800 and addressed in the operations
and maintenance plan for the transmission system without requiring a
separate communications site authorization. The BLM agrees with this
comment as fiber optic directly supporting a powerline or other
facility, when not resold as a commercial use, is considered ancillary
to the powerline. The BLM recommends, but does not require, a separate
authorization for fiber optic uses which are ancillary, with the
possibility of rent waiver for ancillary uses so long as the use is
solely internal to the holder's needs and the service is not resold.
The BLM would not require a separate communications site management
plan for an ancillary facility but may incorporate it into an existing
communications site management plan.
Section 2861.1 What requirements of part 2800 apply to my grant?
Grants issued under this part must comply with the requirements of
part 2800, except as otherwise described in this part. The final rule
makes no changes to the version of this section that appeared in the
proposed rule.
Section 2861.2 What is the objective of the BLM's Communications Uses
program?
The BLM's objective in this section is to authorize and administer
communications uses under Title V of the Federal Land Policy and
Management Act of 1976 and the regulations in this part to qualified
individual, business, or governmental entities. The final rule makes no
changes to the version of this section that appeared in the proposed
rule.
Section 2861.5 What acronyms and terms are used in the regulations in
this part?
Section 2861.5 defines terms that are specific to communications
uses. This section includes terms that had been defined in existing
Sec. 2801.5. New definitions are added to provide clarity for the
public as to how the BLM administers authorizations for communications
uses under part 2860.
The definitions for ``RMA,'' ``Base Rent,'' ``Customer,''
``Facility Manager,'' ``Facility Owner,'' ``Site,'' and ``Tenant'' have
been moved from Sec. 2801.5; the definitions of ``Facility'' and
``Grant'' were copied from Sec. 2801.5, and those terms are now
defined in both sections, with the definitions here revised slightly to
reflect their specific application in the context of communications
uses.
The rule adds 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 Sec. 2866.31(c)). The final rule
makes no changes to the version of this definition that appeared in the
proposed rule.
The term ``collocation'' was defined in Sec. 2861.5 of the
proposed rule as ``[A]nother use, other than the holder's use, added to
a communications use facility. Collocation may occur inside the
building or on a tower.'' The BLM removed the definition of the term
from this final rule because the term is not used in the regulatory
text. A commenter noted this discrepancy as well as a related error in
the paperwork collection requirements in the supplemental information
published with the proposed rule. The paperwork collection requirements
stated that Sec. 2866.41 will add a regulation requiring holders of
ancillary facilities to request collocation, and if the BLM does not
respond to a request for collocation within 60 days, the collocation
will be deemed approved. Section 2866.41 in the proposed rule did not
include a provision requiring holders of ancillary facilities to
request collocation nor a provision that such a request would be deemed
automatically approved in 60 days if not denied by BLM. The statement
in the paperwork collection requirements was in error and has been
removed from the preamble of the final rule. As ``collocation'' is not
used in the text of the final rule, the definition of the term is
unnecessary and has been removed from the final rule.
The final rule adds a definition of ``communications facility,''
which was requested by a commenter. The definition of ``communication
facility'' is the same as the definition of ``facility'' in Sec.
2861.5 and Sec. 2801.5(b).
The rule adds 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 has 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 final rule makes no changes to the version of this definition that
appeared in the proposed rule.
The rule adds the term and a definition of ``communications site
management plans'' to clarify that these plans guide development and
operations at communications sites. These plans are implementation
level plans, meaning that they take action consistent with the relevant
land use plan (generally a Resource Management Plan (RMP)).
Communication site management plans provide direction to the users for
the day-to-day operations of the communications site and provide
holders and future proponents with the development conditions for a
particular site. The final rule makes no changes to the version of this
definition that appeared in the proposed rule.
The rule adds 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 applies. The
final rule makes no changes to the version of this definition that
appeared in the proposed rule.
The definition for the term ``Communications uses rent schedule''
was moved here from Sec. 2801.5. The change is necessary to maintain
consistency in terminology throughout new part 2860. The term
``communications uses rent schedule'' continues to apply to all types
of communications uses identified in the previous definition of the
term at Sec. 2801.5 for purposes of identifying and collecting rent,
and it also applies to the

[[Page 25942]]

following additional uses added to this definition: ``facility
manager,'' ``internet service provider (ISP),'' ``passive reflector,''
and ``local exchange network.'' The final rule includes only minor,
nonsubstantive changes to the version of this definition that appeared
in the proposed rule.
The rule adds the term and definition of ``duly filed application''
to explain that it is an application that includes all the elements
required by Sec. 2864.25. One commenter asked that the BLM change the
definition for the term ``duly filed application'' to include a
reference to Sec. 2864.25, not Sec. 2804.25 as it was written in the
proposed rule. In response to this comment, the citation in the rule
changed to Sec. 2864.25.
The rule adds 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. The final rule makes no changes to the
version of this definition that appeared in the proposed rule.
A commenter stated that the BLM should revise the proposed rule
language to clarify that before the BLM will issue a grant to allow
placement of equipment on Federal property (or property owned by others
who presumably have similar concerns), permission must be attained from
the agency.
The authorization for communications uses provides for subleasing
of uses so the agency does not need to be involved in every change
within a communications facility so long as the subleased collocated
use is within the existing facility or on the existing tower. The final
rule is not revised in response to this comment.
Section 2861.8 Severability
This section of the rule, which is based on existing Sec. 2801.8
and parallels Sec. 2881.8 in the final rule, states that if a court
holds any provisions of the rules in this part or their applicability
to any person or circumstances invalid, the remainder of these rules
and their applicability to other people or circumstances should not be
affected. If any portion of this final rule were to be stayed or
invalidated by a reviewing court, the remaining elements would continue
to provide BLM with important and independently effective tools
relating to the administration of its ROW program. For example, the
cost recovery provisions in this final rule may function independently
of the provisions concerning communications uses and FLPMA Section 512.
Similarly, the provisions implementing FLPMA Section 512 and the
provisions governing communications uses may function independently.
Individual sections of the rule may function independently as well. The
final rule makes no changes to the version of this section that
appeared in the proposed rule.
Section 2861.9 When do I need a grant?
This section explains the communications-related activities that
require an authorization. The final rule makes no changes to the
version of this section that appeared in the proposed rule.
Subpart 2862--Lands Available for Grants
Section 2862.11 How does the BLM designate communications sites and
establish communications site management plans?
Section 2862.11 describes how the BLM designates communications
sites and when communications site management plans are prepared. This
section is based on existing Sec. 2802.11, which describes how the BLM
designates ROW corridors and designated leasing areas.
Under Sec. 2862.11(a), the BLM will 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).
Paragraph (b) identifies factors the BLM considers when determining
land suitability for communications uses, in addition to the factors
described in existing Sec. 2802.11(b). One commenter recommended
adding ``proximity to private and residential property'' to the list of
factors that the BLM considers under paragraph (b). The BLM will not
revise Sec. 2802.11(b) because the suggested addition is already
covered by Sec. 2802.11(b)(7).
Paragraph (c) provides for communications site management plans,
which 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 may take the form of an applicable
categorical exclusion or determination that a prior NEPA analysis is
adequate.
A commenter noted that RMP revisions may be necessary if existing
RMPs do not address communication sites. Communication site management
plans are site specific plans regarding the current and future
communication site uses at a specific location and are a technical
report to supplement an RMP, since the site can change over time
throughout the life of the RMP. This comment does not make any
suggestions for changes to the rule and thus is outside the scope of
this rulemaking effort.
Ultimately, the final rule makes no changes to the version of this
section that appeared in the proposed rule.
Subpart 2864--Applying for Grants
Section 2864.10 What should I do before I file my application?
Section 2864.10 is based on existing Sec. 2804.10. Section
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 may 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.
Paragraph (b) prompts applicants to ask the BLM for a copy of any
applicable communications site management plan for the site of the
proposed project. By using an existing communications site management
plan as a reference, applicants can better develop an application that
is consistent with the site management plan, which will help streamline
the BLM's application processing.
Paragraph (c) specifies what an applicant should acquire before
submitting an application to the BLM. A complete communications uses
application almost always requires proof of a Federal Communications
Commission (FCC) license. If an applicant has already 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.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
Section 2864.12 What must I do when submitting my application?
Section 2864.12 describes the supplemental information needed to
accompany the SF-299, which is required for all communications uses
applications. Section 2864.12 is based

[[Page 25943]]

on existing Sec. 2804.12 but includes 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 section
standardizes the requirements specific to communications uses to
streamline the application process for these types of authorizations.
Paragraph (a) of this section clarifies 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 revision allows applicants to
file their applications electronically. These changes streamline
application submissions and allow for more flexibility in how
applications are submitted.
Paragraph (a)(1) of this section refers to Sec. 2804.12 for a list
of attachments that should be included in all applications.
Paragraph (a)(2) requires an applicant to provide proof of their
FCC license. This requirement is consistent with current BLM practice,
and the BLM is incorporating this requirement into the regulations to
notify applicants of what to expect. There is no expectation that this
new language will create any additional burden for communications uses
applicants.
Paragraph (a)(3) of this section requires an applicant to submit
GIS shapefiles for a map of the proposed project. This requirement is
consistent with changes that the final rule makes to Sec.
2804.12(a)(4), which already requires an applicant to submit a map of
the proposed project and now further requires an applicant to submit
GIS shapefiles or equivalent format, upon request. This new requirement
is 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.
One commenter expressed support for the requirement in Sec.
2864.12(a)(3) for applicants to submit GIS shapefiles with an
application for a ROW. However, the commenter also noted that data
shared may exclude attributes that could be considered critical
infrastructure and may require a nondisclosure agreement prior to
submittal. Conversely, another commenter requested the BLM modify
language to: (1) retain flexibility in the geographic information
required rather than requiring a specific file format (i.e.,
shapefiles); and (2) limit data collection to what is necessary for the
purposes of site management. The BLM agrees with both comments.
However, the data shared need to be in a format acceptable to the BLM
so that the agency can use them in the analysis of the proposed action.
The final rule reflects a compromise position that requires data to be
submitted in GIS shapefiles or an equivalent format. The BLM collects
potential siting information such as facilities, ROW boundaries,
surface disturbance, and access roads from applicants for
interdisciplinary analysis. Per 43 CFR 2804.13, the BLM will keep
confidential any information marked as such to the extent allowed by
law.
Paragraph (a)(4) of this section requires an application to include
draft engineering or construction drawings. By including these
drawings, applicants should 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 will
streamline application processing times.
Paragraph (a)(5) of this section requires that a communications
uses application include technical data related to communication
equipment used in and on the proposed facility. This rule specifies the
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) requires 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 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.
Since BLM policy already requires a POD to be submitted with all
applications, this rule should not create an additional burden on the
applicant.
Paragraph (b) states 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).
These changes explain that the BLM will not process an application
until the additional information has been submitted. The BLM
anticipates this change will help expedite application review and
processing. This paragraph is based on existing Sec. 2804.12(f).
The final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
Section 2864.24 Do I always have to use Standard Form 299 when
submitting my application for a Communications Uses authorization?
This section requires applicants to use Standard Form 299 to file
applications for communications uses. The final rule makes no changes
to the version of this section that appeared in the proposed rule.
Section 2864.25 How will the BLM process my Communications Uses
application?
Section 2864.25 provides that the BLM will process communications
uses applications consistent with existing Sec. 2804.25. In addition,
this section requires 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 believes this new
regulation will shorten application processing times and establish
consistency among BLM offices.
Two commenters expressed support for the 270-day timeline to help
expedite application review times and decisions. One commenter
requested that the BLM clarify whether the 270-day timeline outlined in
proposed Sec. 2864.25 would affect public involvement opportunities,
including scoping and comment period durations.
The 270-day processing time limit is not discretionary. It is a
legislatively mandated requirement of the MOBILE NOW Act. The MOBILE
NOW Act requires agencies to approve or deny applications within 270
days of a duly filed application. (See definitions at 43 CFR 2861.5 for
the definition of a duly filed application.) For the large majority of
applications, the 270-day processing time limit is sufficient for BLM
to complete the NEPA process, including the public comment period. All
public comments on proposed actions subject to the 270-day processing
time limit will

[[Page 25944]]

need to be delivered to the agency within the timeframes given for
public comments to ensure the BLM has time to review and, where
appropriate, incorporate comments into the NEPA analysis. The BLM does
not anticipate shortening public comment periods, but for proposed
actions subject to the 270-day processing time limit, the agency will
have less ability to review and incorporate comments received after the
timeframes given for public comment.
While the BLM normally meets the 270-day time frame, sometimes the
BLM is not able to complete its application review process in that
time. Any work conducted beyond the 270 days should be with the
applicant's agreement.
One commenter recommended the BLM further modify this language to
indicate that an application will be deemed complete after BLM
notification of completeness or the passage of 60 days from submission
of a duly filed application, whichever is earlier. Because the BLM
cannot process an incomplete application, the BLM cannot adopt the
commenter's suggestion that an application be deemed complete 60 days
after it is filed, regardless of the completeness of the application.
If an application is incomplete, the BLM will notify the applicant
within 60 days of receiving the application as to what is needed to
complete the application.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
Section 2864.26 Under what circumstances may the BLM deny my
application?
Section 2864.26 is based on existing Sec. 2804.26 and identifies
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.
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 will be given the opportunity during the
application process to provide evidence of potential interference with
their use. The BLM will 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 paragraphs (b) and (c) of this section, an application can 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.
One commenter requested the BLM modify the proposed rule language
to provide the criteria the BLM will use when deciding whether an
application is denied for failure to comply with BLM requests for
additional information.
The BLM declines to change the rule in response to this comment.
The BLM may require additional information above what is specifically
required in the regulations in order to make an informed decision on an
application. Additional information could be site specific information,
such as detailed visual resource management analysis, that is difficult
to anticipate and categorize in advance. Failure to receive the
information from an applicant prevents the BLM from making a fully
informed decision. The BLM also uses the seven criteria defined in
Sec. 2804.26 for denying an application. The BLM will send a
deficiency notice, usually with a deadline, before denying an
application. If an application is denied, the applicant has an
opportunity to appeal the decision.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
Section 2864.35 How will the BLM prioritize my Communications Uses
application?
Section 2864.35 describes how the BLM will 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 section, the BLM will prioritize processing applications for
grants that meet the needs of underserved, rural, and Tribal
communities and first responders. This section was added in response to
E.O. 13821, discussed earlier in this preamble.
A commenter expressed support for prioritizing applications for
grants that meet the needs of underserved, rural, and Tribal
communities and first responders. The commenter requested the BLM
provide additional information regarding how the categories are further
defined and how they might be prioritized amongst each other in the
event a given site is proposed on property that overlaps multiple
categories.
The BLM did not address the portion of the comment requesting the
BLM further define and prioritize the categories of ``underserved,''
``rural,'' ``Tribal,'' and ``first responder.'' The BLM will address
each application on a case-by-case basis and will provide further
guidance on this issue as necessary. The final rule makes no changes to
the version of this section that appeared in the proposed rule.
Subpart 2865--Terms and Conditions of Grants
Section 2865.14 What rights does a grant provide?
Section 2865.14 describes the rights provided by a grant, in
addition to the rights described in existing Sec. 2805.14.
Paragraph (a) of this section is based on existing Sec. 2805.14(a)
but has been revised to clarify that only facilities explicitly allowed
by an authorization are acceptable. The final rule makes no changes to
the version of this paragraph that appeared in the proposed rule.
Paragraph (b) of this section is based on existing Sec. 2805.14(b)
and revises the language so that subleasing provisions are consistent
between communications uses and all other ROWs. In response to a
commenter's request to clarify the term ``subleasing'' as it relates to
the rights granted under an authorization and whether subleasing refers
only to collocations within or on authorized facilities, this final
rule revises the proposed rule to include definitions of ``ancillary''
and ``subleasing'' in Sec. 2801.5 to help clarify each term.
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. Section 2805.14(c) describes access to lands, but this section
instead refers to ``lands or facilities.'' This change is consistent
with other changes to the regulations moved to new part 2860 from part
2800, which acknowledge that an authorization may be either a grant to
use a facility or a grant for the use of public lands. The final rule
makes no changes to the version of this paragraph that appeared in the
proposed rule.
Paragraph (d) of this section sets 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 is being carried forward for grants under this new part.
The BLM may determine in a given case that a shorter term is
appropriate for an

[[Page 25945]]

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. One commenter
expressed support for the 30-year term for communications use grants
included in the proposed rule, as consistent with FLPMA, because it
will provide increased investment certainty for applicants. The final
rule makes no changes to the version of this paragraph that appeared in
the proposed rule.
One commenter requested the BLM modify proposed rule language to
address when and how owners can attain rights to keep beam paths that
require clear line-of-sight communication free of obstructions on BLM-
managed land.
The BLM is not modifying the proposed rule in response to this
comment. It is the holder's responsibility to propose communications
use locations on public lands that meet the needs of the applicant. The
applicant is responsible for including issues such as the beam path
reliability in their POD. The POD should contain clear direction as to
how the holder would need to operate and maintain their beam path in
the future to achieve a clear path for operations. The agency would
subsequently analyze the proposal under NEPA. The final approved POD
would then set the course for future maintenance actions by the holder.
Subpart 2866--Annual Rents and Payments
Subpart 2866 contains the rental requirements for grants. Many of
the sections have been moved from existing subpart 2806 with no
substantive changes from existing requirements. The 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 are moved into subpart 2866.

Table 4--New Subpart 2866 vs Former Subpart 2806
--------------------------------------------------------------------------------------------------------------------------------------------------------
New section 2866 based on or moved from former section 2806
---------------------------------------------------------------------------------------------------------------------------------------------------------
Former section Former title New section New title
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subpart 2806 Annual rents and payments Subpart 2866 Annual rents and payments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Based on Sec. 2806.14.................. Under what circumstances am I exempt from Sec. 2866.14 Under what circumstances am I exempt from
paying rent? paying rent?
Based on Sec. 2806.15.................. Under what circumstances may BLM waive or Sec. 2866.15 Under what circumstances may the BLM waive or
reduce my rent? reduce my rent?
Based on Sec. 2806.23.................. How will the BLM calculate my rent for linear Sec. 2866.23 How will the BLM calculate my rent for linear
rights-of-way the Per Acre Rent Schedule rights-of-way for Communications Uses?
covers?
Moved from............................... What are the rents for communication site Sec. 2866.30 What are the rents for Communications Uses?
Sec. 2806.30........................... rights-of-way?
Moved from............................... How will BLM calculate rent for a right-of-way Sec. 2866.31 How will the BLM calculate rent for
Sec. 2806.31........................... for communication uses in the schedule? Communications Uses in the schedule?
Moved from............................... How does BLM determine the population strata Sec. 2866.32 How does the BLM determine the population
Sec. 2806.32........................... served? strata served for your facility?
Moved from............................... How will BLM calculate the rent for a grant or Sec. 2866.33 How will the BLM calculate the rent for a
Sec. 2806.33........................... lease authorizing a single use communication single use communication facility grant?
facility?
Moved from............................... How will BLM calculate the rent for a grant or Sec. 2866.34 How will the BLM calculate the rent for a
Sec. 2806.34........................... lease authorizing a multiple-use multiple-use communication facility grant?
communication facility?
Moved from............................... How will BLM calculate rent for private mobile Sec. 2866.35 How will the BLM calculate rent for private
Sec. 2806.35........................... radio service (PMRS), internal microwave, and mobile radio service (PMRS), internal
``other'' category uses? microwave, and ``other'' category uses?
Moved from............................... If I am a tenant or customer in a facility, Sec. 2866.36 If I am a tenant or customer in a facility,
Sec. 2806.36........................... must I have my own grant or lease and if so, must I have my own grant and if so, how will
how will this affect my rent? this affect my rent?
Moved from............................... How will BLM calculate rent for a grant or Sec. 2866.37 How will the BLM calculate rent for a grant
Sec. 2806.37........................... lease involving an entity with a single use involving an entity with a single use
(holder or tenant) having equipment or (holder or tenant) having equipment or
occupying space in multiple BLM-authorized occupying space in multiple BLM-authorized
facilities to support that single use? facilities to support that single use?
Moved from............................... Can I combine multiple grants or leases for Sec. 2866.38 Can I combine multiple grants for facilities
Sec. 2806.38........................... facilities located on one site into a single located at one site into a single grant?
grant or lease?
Moved from............................... How will BLM calculate rent for a lease for a Sec. 2866.39 How will the BLM calculate rent for a grant
Sec. 2806.39........................... facility manager's use? for a facility manager's use?
Moved from............................... How will BLM calculate rent for a grant or Sec. 2866.40 How will the BLM calculate rent for an
Sec. 2806.40........................... lease for ancillary communication uses authorization for ancillary Communications
associated with communication uses on the Uses associated with Communications Uses on
rent schedule? the rent schedule?
Moved from............................... How will BLM calculate rent for communication Sec. 2866.41 How will the BLM calculate rent for
Sec. 2806.41........................... facilities ancillary to a linear grant or communication facilities ancillary to a
other use authorization? linear grant or other use authorization?
Moved from............................... How will BLM calculate rent for a grant or Sec. 2866.42 How will the BLM calculate rent for
Sec. 2806.42........................... lease authorizing a communication use within Communications Uses within a federally owned
a federally-owned communication facility? communications facility?

[[Page 25946]]

Moved from Sec. 2806.43, but the terms How does BLM calculate rent for passive Sec. 2866.43 How does the BLM calculate rent for passive
would be moved to Sec. 2861.5. reflectors and local exchange networks? reflectors and local exchange networks?
Moved from............................... How will BLM calculate rent for a facility Sec. 2866.44 How will the BLM calculate rent for a
Sec. 2806.44........................... owner's or facility manager's grant or lease facility owner's or facility manager's grant
which authorizes communication uses? which authorizes Communications Uses?
--------------------------------------------------------------------------------------------------------------------------------------------------------

For a discussion of the sections in subpart 2806 that were removed
by this rule, see the preamble discussion of subpart 2806.
Section 2866.14 Under what circumstances am I exempt from paying rent?
Section 2866.14 identifies when a holder is exempt from paying
rent. Paragraph (a)(1) of this section states that Federal, State, and
local governments, along with their instrumentalities, are exempt from
paying rent. Paragraphs (a)(2) and (a)(3) are based on paragraphs
(a)(3) and (a)(4) of Sec. 2806.14. Paragraph (b) describes the
exceptions to these exemptions. Under paragraph (b)(1) of this section,
a holder will not be exempt from paying rent if the holder is in
trespass. This is not a change from existing requirements but has been
added to the regulations to provide clarity to holders.
Paragraphs (b)(2)(i) and (b)(2)(ii) explain that a State or local
government entity is not 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 added paragraph (b)(2)(iii), a State or local government
entity is not exempt from rent if it charges rent to the United States
Government for occupancy within an exempt facility (above routine
operation and maintenance costs). The BLM and other Federal agencies
are often charged rent to occupy space in another governmental (State
or local government) facility when their authorization to occupy the
public lands is exempt from rent. The BLM is making this change to
encourage reciprocal 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.
The final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
Section 2866.15 Under what circumstances may the BLM waive or reduce my
rent?
Section 2866.15 includes rental reduction or waiver provisions that
apply specifically to the communications uses program.
Under paragraph (a) of this section, the BLM can waive or reduce
rent for holders that are licensed by the FCC as non-commercial and
educational broadcasters.
Under paragraph (b) of this section, and consistent with existing
Section 2806.15, the BLM can 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.
Paragraph (c) of this section identifies when the BLM may 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 to an occupant
whose rent would normally be exempt or waived by the BLM. This
provision is consistent with Sec. 2866.14(b)(2).
Paragraph (d) of this section describes when the BLM can revoke a
holder's waiver of rent. Under paragraph (d) of this section, the BLM
will revoke a holder's waiver if it determines that the authorization
holder no longer meets the criteria for a waiver.
This section provides 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 section will streamline our
processes by demonstrating to the public when rent can be waived or
reduced and by reducing the need for the BLM to further analyze a
request.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
Section 2866.23 How will the BLM calculate my rent for linear rights-
of-way for Communications Uses?
Section 2866.23 is based on existing Sec. 2806.23 and provides
some additional clarification that linear communications uses, such as
for fiber optic and telephone cable, will 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.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
Section 2866.30 What are the rents for Communications Uses?
While much of part 2860 is based on sections of part 2800, which
would remain as part of the rule, the communications site rent
provisions (Sec. Sec. 2866.30 through 2866.44) have been moved from
subpart 2806 to new subpart 2866. Changes from existing provisions are
discussed in this and the following sections of this preamble.
Section 2866.30 is substantively the same as existing Sec.
2806.30. This section describes how the BLM will assess annual rent for
communications uses. The final rule updates the address for the BLM and
makes other minor, nonsubstantive changes to the version of this
section that appeared in the proposed rule.

[[Page 25947]]

Section 2866.31 How will the BLM calculate rent for Communications Uses
in the schedule?
Section 2866.31 is substantively the same as existing Sec.
2806.31. There are no substantive changes from existing requirements,
and the final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
Section 2866.32 How does the BLM determine the population strata served
for your facility?
Section 2866.32 is substantively the same as existing Sec.
2806.32, and there are no substantive changes from existing
requirements.
Section 2866.33 How will the BLM calculate the rent for a single use
communication facility grant?
Section 2866.33 is substantively the same as existing Sec.
2806.33, and there are no substantive changes from existing
requirements.
Section 2866.34 How will the BLM calculate the rent for a multiple-use
communication facility grant?
Section 2866.34 is substantively the same as existing Sec.
2806.34. There are no substantive changes from existing requirements,
and the final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
Section 2866.35 How will the BLM calculate rent for private mobile
radio service (PMRS), internal microwave, and ``other'' category uses?
Section 2866.35 is substantively the same as existing Sec.
2806.35. There are no substantive changes from existing requirements,
and the final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
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?
Section 2866.36 is substantively the same as existing Sec.
2806.36, and there are no substantive changes from existing
requirements.
One commenter requested the BLM revise proposed Sec. 2866.36(c) to
permit the BLM to collect the full annual rent from either the grant
holder or the tenant. This comment is outside the scope of this rule.
The BLM is not addressing payment collection requirements in this
rulemaking.
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?
Section 2866.37 is substantively the same as existing Sec.
2806.37, and there are no substantive changes from existing
requirements.
Section 2866.38 Can I combine multiple grants for facilities located at
one site into a single grant?
Section 2866.38 is substantively the same as existing Sec. 2806.38
and is revised to require submittal of an SF 299 for BLM authorization
to combine facilities into a single grant.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.
Section 2866.39 How will the BLM calculate rent for a grant for a
facility manager's use?
Section 2866.39 is substantively the same as existing Sec.
2806.39. There are no substantive changes from existing requirements,
and the final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
Section 2866.40 How will the BLM calculate rent for an authorization
for ancillary Communications Uses associated with Communications Uses
on the rent schedule?
Section 2866.40 is substantively the same as existing Sec.
2806.40, and there are no substantive changes from existing
requirements. The BLM considers ``ancillary'' communication facilities
to be those used solely for the purpose of internal communications.
For the final rule, the BLM added a reference to the new definition
of ``ancillary'' found in Sec. 2801.5 to provide clarity to the
reader.
Section 2866.41 How will the BLM calculate rent for communications
facilities ancillary to a linear grant or other use authorization?
Section 2866.41 is substantively the same as existing Sec.
2806.41, and there are no substantive changes from existing
requirements.
One commenter requested that the BLM modify the proposed rule
language to acknowledge the rent exemption clause (Sec. 2866.14), so
it is clear that the Federal rent exemption applies in circumstances
where the communications use facility is authorized as ancillary to a
grant but is not used for the sole purpose of internal communications.
The final rule is not modified in response to this comment. If the
communications use is not for the sole purpose of internal
communications, then the service is implied to be a commercial
communications use. If that is the case, then the agency is allowed to
charge for that use, and therefore, the use would not be rent exempt.
One commenter recommended that the proposed rule allow BLM to
permit fiber optic cable on linear high voltage transmission lines as
ancillary or appurtenant communication facilities and equipment that
support the electric transmission grid.
The BLM believes that the final rule accounts for this comment.
Fiber optic and microwave directly supporting a powerline or other
facility, when not resold as a commercial use, is considered an
ancillary facility, and will continue to be rent exempt. Therefore, the
final rule is not modified in response to this comment.
Section 2866.42 How will the BLM calculate rent for Communications Uses
within a federally-owned communications facility?
Section 2866.42 is substantively the same as existing Sec.
2806.42, and there are no substantive changes from existing
requirements.
One commenter requested the BLM modify Sec. 2866.42(b) to clarify
(1) how the term Facility Owner (as defined in Sec. 2861.5) applies to
Federal agencies that do not operate for personal or commercial
purposes, and (2) that Federal agencies are exempt from paying rent
even if the BLM considers them to be a facility owner.
The final rule is not modified in response to this comment. By
definition, a Federal agency is a facility owner because it owns and
operates equipment on public lands. The use by a Federal agency is
generally exempt from rent. Occupants who occupy space within a Federal
facility will hold their own authorization for which they must
generally pay rent to the BLM for their communications uses of the
public lands. The final rule revises the definition of a ``facility
owner'' to provide clarification that a Federal purpose is one purpose
for which a facility owner may operate communications equipment in the
facility. The final rule makes no changes to the version of this
section that appeared in the proposed rule.
Section 2866.43 How does the BLM calculate rent for passive reflectors
and local exchange networks?
Section 2866.43 is substantively the same as existing Sec.
2806.43, except that

[[Page 25948]]

the definitions for ``passive reflector'' and ``local exchange
network'' have been added to Sec. 2861.5 instead. The final rule
includes only minor, nonsubstantive changes to the version of this
section that appeared in the proposed rule.
Section 2866.44 How will the BLM calculate rent for a facility owner's
or facility manager's grant which authorizes Communications Uses?
Section 2866.44 is substantively the same as existing Sec.
2806.44. There are no substantive changes from existing requirements,
and the final rule includes only minor, nonsubstantive changes to the
version of this section that appeared in the proposed rule.
Subpart 2868--Communications Uses Trespass
Section 2868.10 What is a Communications Uses trespass?
Section 2868.10 is based on Sec. 2808.10 but provides 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) states that adding to or altering from the
communications facilities described in the authorization without
approval from the BLM is a trespass.
Paragraph (b) of this section states that facility owners who
permit communications uses of other users by allowing them to sublease
any portion of their facilities without approval will be considered to
be in trespass.
Paragraph (c) provides 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 to house or support equipment 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 many years, but it became clear that users were confused about what
the BLM considers trespass. The BLM believes that publishing these
provisions as regulations offers additional clarity to the public and
will lead to a reduction in unauthorized use.
One commenter stated that the BLM should modify the proposed
trespass language in section 2868.10 to address concerns that: (1)
language regarding placement of any type of facilities is too broad;
and (2) if the regulations require authorization and, if necessary,
rent to be paid to the BLM for entities that want to locate equipment
on structures, the holder will retain the right to determine if the
proposed use is compatible with the holder's pre-existing use.
The BLM is not modifying the rule as suggested by the comment. If a
use of the public lands is not provided for in an authorization it is
considered an unauthorized use and therefore a trespass. An application
for a ROW should accurately describe the facilities it seeks an
authorization for, and the BLM will include a description of the
authorized facilities within the ROW grant. Collocated equipment should
be disclosed to the BLM at the time of applications and prior to
installation. If undisclosed equipment is discovered later by the BLM,
it will be considered unauthorized.
The final rule makes no changes to the version of this section that
appeared in the proposed rule.

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 a ROW
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.
The MLA does not limit or qualify the actual cost requirement, nor
does it list any factors that the BLM may or should consider when
determining reimbursable costs. The BLM bases actual cost information
on Federal accounting and reporting systems. The BLM is making changes
to part 2880 to provide consistency with the FLPMA ROW regulations at
part 2800.
Part 2881--General Information
Section 2881.2 What is the objective of the BLM's right-of-way program?
This rule adds the words ``wherever practical'' to the objective
described in Sec. 2881.2(c). This change is consistent with Sec.
2801.2(c). For a more detailed discussion, please see the preamble
discussion for Sec. 2801.2(c).
The final rule makes no changes to the version of this section that
appeared in t

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