Rule2025-14627
Revisions to the Regulations Regarding Intermittent Energy
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 1, 2025
Effective
August 1, 2025
Issuing agencies
Interior DepartmentLand Management Bureau
Abstract
The Department of the Interior (Department) is amending the BLM rules governing acreage rent rate and capacity fee for solar and wind energy generation on Public Lands to effectuate changes required by the "One Big Beautiful Bill Act" (OBBB) enacted on July 4, 2025.
Full Text
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<title>Federal Register, Volume 90 Issue 146 (Friday, August 1, 2025)</title>
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[Federal Register Volume 90, Number 146 (Friday, August 1, 2025)]
[Rules and Regulations]
[Pages 36111-36114]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-14627]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 2800
[Docket No. BLM-2025-0142; PO #4820000251; Order #02412-014-004-
047181.0]
RIN 1004-AF45
Revisions to the Regulations Regarding Intermittent Energy
AGENCY: Bureau of Land Management (BLM), Interior.
ACTION: Final rule.
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SUMMARY: The Department of the Interior (Department) is amending the
BLM rules governing acreage rent rate and capacity fee for solar and
wind energy generation on Public Lands to effectuate changes required
by the ``One Big Beautiful Bill Act'' (OBBB) enacted on July 4, 2025.
DATES: The final rule is effective on August 1, 2025.
ADDRESSES: The BLM has established a docket for this rulemaking in the
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the
Searchbox, enter ``RIN 1004-AF45'' and click the ``Search'' button.
Follow the instructions at this website.
FOR FURTHER INFORMATION CONTACT: Jayme Lopez, Interagency Coordination
Liaison, by phone at (520) 235-4581, or by email at <a href="/cdn-cgi/l/email-protection#b7d2d9d2c5d0cef7d5dbda99d0d8c1"><span class="__cf_email__" data-cfemail="680d060d1a0f11280a0405460f071e">[email protected]</span></a> for
information relating to the rule. Please use ``RIN 1004-AF45'' in the
subject line. Individuals in the United States who are deaf, deafblind,
hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION: Historically, the BLM has set rental rates
and capacity fees for solar and wind energy rights-of-way based on a
determination of fair market value consistent with the Federal Land
Policy and Management Act of 1976 (43 U.S.C.
[[Page 36112]]
1764(g)) (FLPMA). Congress, through Section 50302 of Public Law 119-21,
139 Stat. 71, enacted on July 4, 2025, (``OBBB'') established specific
rent and capacity fees for rights-of-way authorizing solar and wind
energy generation facilities on public lands. Section 50302's
provisions governing acreage rent rates and capacity fee supersede
those in the BLM's current right-of-way regulations governing solar and
wind energy. The Department is therefore revising the BLM right-of-way
regulations found at 43 CFR part 2800 to reflect the acreage rent rates
and capacity fee required by statute. Specifically, through this final
rule the Department is revising Sec. Sec. 2801.5, 2805.12, 2806.50,
2806.51, 2806.52, 2807.21, and 2809.16.
The Title 43 CFR part 2800 regulations were updated to
comprehensively address solar and wind energy generation by a final
rule published in the Federal Register on December 19, 2016, titled
``Competitive Processes, Terms, and Conditions for Leasing Public Lands
for Solar and Wind Energy Development and Technical Changes and
Corrections'' (81 FR 92122). That rule built upon existing right-of-way
regulations and policies to specifically address solar and wind energy
development by establishing a competitive leasing framework, a formula
that included an acreage rent along with a capacity fee, and incentives
to encourage project siting within designated leasing areas (DLAs). On
May 1, 2024, the Department issued a new rule entitled ``Rights-of-Way,
Leasing, and Operations for Renewable Energy.'' These revisions
included updates to the methodology for determining acreage rents and
capacity fees for solar and wind energy development projects that
significantly reduced revenue from these projects permitted on public
lands and the establishment of financial incentives in the form of
additional capacity fee reductions for projects utilizing American-made
components or constructed using project labor agreements.
Section 50302(b) of the OBBB established a new formula for
calculating the acreage rents for solar and wind generation facilities
located on public lands. The statutory formula in section
50302(b)(2)(A) is A X B X ((1 + C) [caret] D) where A is the per-acre
rate, defined as the average of the per-acre pastureland rental rates
published in the Cash Rents Survey by the National Agricultural
Statistics Service for the State in which the right-of-way is located
over the 5 calendar-year period preceding the issuance or renewal of
the right-of-way; B is the encumbrance factor, which is 100 percent for
a solar energy generation facilities and not less than 10 percent for a
wind energy generation facility, as determined by the Secretary; C is
the Annual Adjustment Factor, which is set at 3 percent; and D is the
year in the term of the right-of-way. Section 50302(b) also requires
the Secretary to collect the rent not later than January 1 of each
calendar year, consistent with section 504(g) of FLPMA.
Once a solar or wind generation facility is generating electricity,
section 50302(c)(2) sets the capacity fee for solar and wind energy to
be the greater of the acreage rent and 3.9 percent of the gross
proceeds from the sale of electricity produced by the renewable energy
project. Section 50302(c)(1) also allows the Secretary to collect the
capacity fee annually based on energy produced and sold, rather than
directing that it be collected not later than January 1 of each
calendar year. Section 50302(c)(3) also allows holders of wind energy
rights-of-way the opportunity to apply for a 10 percent reduction in
their capacity fee if ``not less than 25 percent of the land within the
area of the right-of-way is authorized for use, occupancy, or
development with respect to an activity other than the generation of
wind energy for the entirety of the year in which the capacity fee is
collected.'' See Public Law 119-21, section 50302(c)(3)(B), 139 Stat.
71 (2025).
The Department is revising certain provisions in 43 CFR part 2800
to reflect Congress's determination with regard to required acreage
rent rate and capacity fee for solar and wind facilities on public
lands. Because the rate and fee changes went into effect on July 4,
2025, the date that the OBBB was enacted, and these targeted revisions
merely effectuate those changes, the Department is issuing this final
rule revising the following provisions in 43 CFR part 2800: the
definitions in Sec. 2801.5(b), the rents and fees for solar and wind
energy development provisions at Sec. 2806.50, the grant and lease
rate adjustments in Sec. 2806.51, the acreage rent formula at Sec.
2806.52(a), and the capacity fee formula at Sec. 2806.52(b); as well
as making conforming changes to Sec. 2805.12(e)(2). Prompt issuance of
this final rule will avoid any confusion on the part of the regulated
community as to what the acreage rent rate and capacity fee will be due
during the next billing cycle.
The enactment of section 50302, independently and alone, justifies
these revisions to 43 CFR part 2800. The Department has no interest in
maintaining regulations in the Code of Federal Regulations that have
been superseded by, and are contrary to, a lawfully enacted statute.
This final rule simply aligns the BLM's regulations in part 2800 with
the specific statutory requirements established by Section 50302 that
went into effect on July 4, 2025.
The Department's authority for the rulemaking procedures followed
in this action is provided by the Administrative Procedure Act (APA, 5
U.S.C. 551 through 559). In general, the APA requires an agency issuing
a rule to provide prior notice and an opportunity for public comment.
The APA section 553(b)(B), however, provides an exemption from notice-
and-comment requirements ``when the agency for good cause finds (and
incorporates the finding and a brief statement of reasons therefor in
the rule issued) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.'' Id.
Sec. 553(b)(B). This action is being issued without prior notice or
opportunity for public comment because the Department finds that the
APA ``good cause'' exemption from notice-and-comment requirements
applies here because the statutory direction in Section 50302 involves
no agency discretion and issuing the rule will help reduce potential
public confusion regarding paying rents and capacity fees for solar and
wind energy generation facilities located on public lands.
Executive Order 12866--Regulatory Planning and Review and Executive
Order 13563--Improving Regulation and Regulatory Review
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB)
will review all significant rules. Congress has defined the acreage
rent rate and capacity fee that the BLM is required to collect for
solar and wind generation facilities on public lands in Section 50302.
This final rule simply updates the applicable BLM regulations to
reflect these statutory provisions; therefore, this is not a
significant rule.
Executive Order 13563 reaffirms the principles of Executive Order
12866, while calling for improvements in the Nation's regulatory system
to promote predictability, reduce uncertainty, and use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
Executive Order 13563 directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and
[[Page 36113]]
consistent with regulatory objectives. Executive Order 13563 emphasizes
further that agencies must base regulations on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. The Department developed
this rule in a manner consistent with these requirements.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 5
U.S.C. 601 et seq., generally, when a Federal agency undertakes a
notice and comment rulemaking process under the APA, it must prepare a
regulatory flexibility analysis that describes the reasons why the
action is being considered, a statement of the objectives and legal
basis for the final rule, and estimate of the number of small entities
the final rule will apply to, a description of reporting and
recordkeeping requirements, and an identification of overlapping rules
and laws. 5 U.S.C. 603(b). However, the Regulatory Flexibility Act
applies only to rules for which an agency is required to first publish
a proposed rule. See 5 U.S.C. 603(a) and 604(a). As the Department is
not required to publish a notice of proposed rulemaking for this direct
final rule, the RFA does not apply.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521)
generally provides that an agency may not conduct or sponsor and, not
withstanding any other provision of law, a person is not required to
respond to, a collection of information, unless it displays a currently
valid Office of Management and Budget (OMB) control number. Collections
of information include any request or requirement that persons obtain,
maintain, retain, or report information to an agency, or disclose
information to a third party or to the public (44 U.S.C. 3502(3) and 5
CFR 1320.3(c)).
OMB has generally approved the existing information-collection
requirements contained in 43 CFR part 2800 associated with solar and
wind rights-of-way grants or leases under OMB control number 1004-0206
(expiration date: June 30, 2026). Additionally, the BLM's regulations
at 43 CFR part 2800 require the use of Standard Form 299 (SF-299),
``Application for Transportation and Utility Systems and Facilities on
Federal Lands,'' for right-of-way applications and the regulations at
43 CFR part 2800. OMB has approved the requirements associated with SF-
299 and has assigned control number 0596-0249. This rule would not
result in changes to the Form SF-299.
The total annual burdens under this OMB Control Number are
currently estimated as follows: 3,116 annual responses; 47,338, annual
burden hours; and $2,182,302 annual cost burden. The rule removes the
annual certification requirement that was in the rescinded Sec.
2806.52(b)(5). The removal of this requirement will result in a
reduction of 75 annual responses and 150 annual burden hours.
The resulting new estimated total burdens for OMB Control Number
1004-0206 are provided below.
Title of Collection: Competitive Processes, Terms, and Conditions
for Leasing Public Lands for Intermittent Energy Development.
OMB Control Number: 1004-0206.
Form Number: SF-299 (Burden approved by OMB in Request for Common
Form under OMB Control No. 0596-0249).
Type of Review: Revision of a currently approved collection of
information.
Respondents/Affected Public: Private sector (applicants for and
holders of wind and solar rights -of-way grants or leases on Federal
public lands.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion and every ten years for Plan
of Development ten-year update.
Number of Respondents: 75.
Annual Responses: 3,041.
Annual Burden Hours: 47,238.
Annual Burden Cost: $2,182,302.
The complete information collection request that has been submitted
to OMB for this rule is available at <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>.
Find this information collection by selecting ``Currently under
Review--Open for Public Comments'' or by using the search function.
Written comments and recommendations for the information collection
requirements should be sent within 30 days of publication of this
notice to <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this particular
information collection by selecting ``Currently under Review--Open for
Public Comments'' or by using the search function.
Congressional Review Act
This rule is not a major rule under the Congressional Review Act, 5
U.S.C. 804(2). Specifically, the final rule: (a) will not have an
annual effect on the economy of $100 million or more; (b) will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) will not have significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector, of more than $100 million
per year. The rule does not have a significant or unique effect on
State, local, or Tribal governments, or the private sector. The rule
merely revises the Federal regulations to remove an obsolete provision
that is no longer used. Therefore, a statement containing the
information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
et seq.) is not required.
Authority: This action is issued under Section 50302(c)(2) of Pub.
L. 119-21, 139 Stat. 71 (2025) and Title V of the Federal Land Policy
and Management Act (FLPMA), 43 U.S.C. 1761-1772.
List of Subjects in 43 CFR Part 2800
Communications, Electric power, Highways and roads, Penalties,
Pipelines, Public lands--rights-of-way, Reporting and recordkeeping
requirements.
Adam G. Suess
Acting Assistant Secretary, Land and Minerals Management.
Accordingly, for the reasons stated in the preamble, the BLM amends
43 CFR part 2800 as set forth below:
PART 2800--RIGHTS-OF-WAY UNDER THE FEDERAL LAND POLICY AND
MANAGEMENT ACT
0
1. The authority citation for part 2800 continues to read as follows:
Authority: 43 U.S.C. 1733, 1740, 1763, 1764, and 3003.
Subpart 2801--General information
0
2. Amend Sec. 2801.5 in paragraph (b) by:
0
a. Revising the definition ``Capacity fee''; and
0
b. Removing the definitions for ``Domestic content reduction'' and
``Megawatt hour (MWh) rate''.
The revision reads as follows:
Sec. 2801.5 What acronyms and terms are used in the regulations in
this part?
* * * * *
(b) * * *
[[Page 36114]]
Capacity fee means the fee charged to right-of-way holders once
energy production commences that is equal to the greater of an acreage
rent and 3.9 percent of the gross proceeds from the sale of electricity
produced by the renewable energy project.
* * * * *
Subpart 2805--Terms and Conditions of Grants
0
3. Amend Sec. 2805.12 by revising paragraph (e)(2) to read as follows:
Sec. 2805.12 What terms and conditions must I comply with?
* * * * *
(e) * * *
(2) You may also request that the BLM consider alternative
stipulations, terms, or conditions, other than rents or fees. Any
proposed alternative stipulation, term, or condition must comply with
applicable law in order to be considered. Any proposed alternative to
applicable bonding requirements must provide the United States with
adequate financial assurance for potential liabilities associated with
your right-of-way grant or lease. Any such request is not approved
until you receive BLM approval in writing.
Subpart 2806--Annual Rents and Payments
0
4. Revise Sec. 2806.50 to read as follows:
Sec. 2806.50 Rents and fees for solar energy rights-of-way.
If you hold a right-of-way for solar or wind energy development,
you must pay an annual rent and fee in accordance with this section and
subpart. The annual rent and fee is the greater of the acreage rent or
the capacity fee that would be due in a given year. The acreage rent
will be calculated consistent with Sec. 2806.11 and prorated
consistent with Sec. 2806.12(a). The capacity fee will vary depending
on the project's gross proceeds from the sale of electricity produced
by the renewable energy project and will be calculated consistent with
Sec. 2806.52(b).
0
5. Revise Sec. 2806.51 to read as follows:
Sec. 2806.51 Grant and lease rate adjustments.
The holder of a right-of-way for a wind energy generation project
may request from the BLM to apply a multiple-use reduction factor of
10-percent to the amount of a capacity fee determined under Sec.
2806.52. Such a request may be approved if the holder demonstrates that
not less than 25 percent of the land within the right-of-way is
authorized for use, occupancy, or development with respect to an
activity other than the generation of wind energy for the entirety of
the year in which the capacity fee is collected.
0
6. Amend Sec. 2806.52 by:
0
a. Revising paragraphs (a)(1)(i) through (iv) and (b); and
0
b. Removing paragraph (c).
The revisions read as follows:
Sec. 2806.52 Annual rents and fees for solar and wind energy
development.
* * * * *
(a) * * *
(1) * * *
(i) A is the state per-acre value from the solar or wind energy
acreage rent schedule published by the BLM for the year on which your
right-of-way grant or lease is issued and is based on the average of
the per-acre pastureland rental rates published in the Cash Rents
Survey by the National Agricultural Statistics Service (NASS) for the
State in which the right-of-way is located over the 5 calendar-year
period preceding the issuance or renewal of the right-of-way. The BLM
will calculate the average using only those years for which rent is
reported by NASS.
(ii) B is the encumbrance factor, which is 100 percent for solar
energy and for wind energy an amount determined by the Secretary, but
not less than 10 percent;
(iii) C is the annual adjustment factor, which is 3 percent; and,
(iv) D is the year in the term of the right-of-way.
* * * * *
(b) Capacity fee. (1) The capacity fee is calculated as 3.9 percent
of the project's annual gross proceeds from the sale of electricity
produced by the renewable energy project. The capacity fee is due
annually in the calendar year following the year in which the
electricity was produced.
(2) For projects that include generation on public and non-public
lands, the holder will be prorated the total energy generation by the
percentage of the right-of-way footprint on public lands relative to
the total development area footprint.
Subpart 2807--Grant Administration and Operation
0
7. Amend Sec. 2807.21 by revising paragraph (e) to read as follows:
Sec. 2807.21 May I assign or make other changes to my grant or lease?
* * * * *
(e) Your assignment is not recognized until the BLM approves it in
writing. We will approve the assignment if doing so is in the public
interest. We may modify the grant or lease or add bonding and other
requirements, including additional terms and conditions, to the grant
or lease when approving the assignment except that we may only modify
wind energy leases where modification is warranted under Sec.
2806.51(a). We may decrease rents if the new holder qualifies for an
exemption (see Sec. 2806.14) or waiver or reduction (see Sec.
2806.15) and the previous holder did not. Similarly, we may increase
rents if the previous holder qualified for an exemption or waiver or
reduction and the new holder does not. If we approve the assignment,
the benefits and liabilities of the grant or lease apply to the new
grant or leaseholder.
* * * * *
Subpart 2809--Competitive Process for Solar and Wind Energy
Development Applications or Leases
Sec. 2809.16 [Amended]
0
8. Amend Sec. 2809.16 by:
0
a. Adding the word ``and'' at the end of paragraph (c)(10);
0
b. Removing paragraphs (c)(11) and (12); and
0
c. Redesignating paragraph (c)(13) as paragraph (c)(11).
[FR Doc. 2025-14627 Filed 7-31-25; 8:45 am]
BILLING CODE 4331-27-P
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