43 CFR 2800 (Current Rules)

Bureau of Land Management, Interior

Pt. 2800

protection and enforcement that they
have reviewed all records, inspection
reports, studies, and other materials
produced or considered in the course of
the investigation and that based on
these documents, such agency or agencies agree with the authorized officer
that the contents of the leased disposal
site in question do not threaten human
health and the environment.
(b) The authorized officer shall not
convey lands identified in paragraph
(a) of this section if the investigation
concludes that the lands contain hazardous substances at concentrations
that threaten human health and the
environment.
(c) The authorized officer shall retain
as permanent records all environmental analyses and appropriate documentation, investigation reports, State
certifications, and other materials produced or considered in determining the
suitability of public lands for conveyance under this section.

sult in the disposal, placement, or release of any hazardous substance.
(b) If the patentee elects not to accept the renunciation of the reversionary interests, the provisions contained in §§ 2741.6 and 2741.9 shall continue to apply.

Group 2800—Use; Rights-of-Way
PART
2800—RIGHTS-OF-WAY
UNDER THE FEDERAL LAND POLICY AND MANAGEMENT ACT
Subpart 2801—General Information
Sec.
2801.2 What is the objective of BLM’s rightof-way program?
2801.5 What acronyms and terms are used in
the regulations in this part?
2801.6 Scope.
2801.8 Severability.
2801.9 When do I need a grant?
2801.10 How do I appeal a BLM decision
issued under the regulations in this part?

[57 FR 32733, July 23, 1992, as amended at 73
FR 50201, Aug. 26, 2008]

§ 2743.3–1 Patent provisions for leased
disposal sites.
Each patent for a leased disposal site
will provide that:
(a) The patentee shall comply with
all Federal and State laws applicable
to the disposal, placement, or release
of hazardous substances;
(b) The patentee shall indemnify and
hold harmless the United States
against any legal liability or future
costs that may arise out of any violation of such laws; and
(c) No portion of the land covered by
such patent shall under any circumstance revert to the United States.
§ 2743.4

Patented disposal sites.

(a) Upon request by or with the concurrence of the patentee, the authorized officer may renounce the reversionary interests of the United States
in land conveyed on or before November 9, 1988, and rescind any portion of
any patent or other instrument of conveyance inconsistent with the renunciation upon a determination that such
land has been used for solid waste disposal or for any other purpose that the
authorized officer determines may re-

Subpart 2802—Lands Available for FLPMA
Grants
2802.10 What lands are available for grants?
2802.11 How does the BLM designate rightof-way corridors and designated leasing
areas?

Subpart 2803—Qualifications for Holding
FLPMA Grants
2803.10 Who may hold a grant?
2803.11 Can another person act on my behalf?
2803.12 What happens to my application or
grant if I die?

Subpart 2804—Applying for FLPMA Grants
2804.10 What should I do before I file my application?
2804.11 Where do I file my grant application?
2804.12 What must I do when submitting my
application?
2804.13 Will BLM keep my information confidential?
2804.14 What is the processing fee for a
grant application?
2804.15 When does BLM reevaluate the processing and monitoring fees?
2804.16 Who is exempt from paying processing and monitoring fees?
2804.17 What is a Master Agreement (Processing Category 5) and what information
must I provide to BLM when I request
one?

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43 CFR Ch. II (10–1–20 Edition)

2804.18 What provisions do Master Agreements contain and what are their limitations?
2804.19 How will BLM process my Processing Category 6 application?
2804.20 How does BLM determine reasonable
costs for Processing Category 6 or Monitoring Category 6 applications?
2804.21 What other factors will BLM consider in determining processing and monitoring fees?
2804.22 How will the availability of funds affect the timing of BLM’s processing?
2804.23 When will the BLM use a competitive process?
2804.24 Do I always have to submit an application for a grant using Standard Form
299?
2804.25 How will BLM process my application?
2804.26 Under what circumstances may BLM
deny my application?
2804.27 What fees must I pay if BLM denies
my application or if I withdraw my application?
2804.28 What processing fees must I pay for
a BLM grant application associated with
Federal Energy Regulatory Commission
(FERC) licenses or re-license applications under part I of the Federal Power
Act (FPA)?
2804.29 What activities may I conduct on
the lands covered by the proposed rightof-way while BLM is processing my application?
2804.30 What is the competitive process for
solar or wind energy development for
lands outside of designated leasing areas?
2804.31 How will the BLM call for site testing for solar and wind energy?
2804.35 How will the BLM prioritize my
solar or wind energy application?
2804.40 Alternative requirements.

Subpart 2805—Terms and Conditions of
Grants
2805.10 How will I know whether the BLM
has approved or denied my application or
if my bid for a solar or wind energy development grant or lease is successful or
unsuccessful?
2805.11 What does a grant contain?
2805.12 What terms and conditions must I
comply with?
2805.13 When is a grant effective?
2805.14 What rights does a grant convey?
2805.15 What rights does the United States
retain?
2805.16 If I hold a grant, what monitoring
fees must I pay?
2805.17 When do I pay monitoring fees?
2805.20 Bonding requirements.

Subpart 2806—Annual Rents and Payments
GENERAL PROVISIONS
2806.10 What rent must I pay for my grant?
2806.11 How will BLM charge me rent?
2806.12 When and where do I pay rent?
2806.13 What happens if I do not pay rents
and fees or if I pay the rents or fees late?
2806.14 Under what circumstances am I exempt from paying rent?
2806.15 Under what circumstances may BLM
waive or reduce my rent?
2806.16 When must I make estimated rent
payments to BLM?
LINEAR RIGHTS-OF-WAY
2806.20 What is the rent for a linear rightof-way grant?
2806.21 When and how are counties or other
geographical areas assigned to a County
Zone Number and Per Acre Zone Value?
2806.22 When and how does the Per Acre
Rent Schedule change?
2806.23 How will the BLM calculate my rent
for linear rights-of-way the Per Acre
Rent Schedule covers?
2806.24 How must I make rental payments
for a linear grant?
2806.25 How may I make rental payments
when land encumbered by my perpetual
linear grant (other than an easement
issued under § 2807.15(b)) is being transferred out of Federal ownership?
2806.26 How may I make rental payments
when land encumbered by my perpetual
easement issued under § 2807.15(b) is being
transferred out of Federal ownership?
COMMUNICATION SITE RIGHTS-OF-WAY
2806.30 What are the rents for communication site rights-of-way?
2806.31 How will BLM calculate rent for a
right-of-way for communication uses in
the schedule?
2806.32 How does BLM determine the population strata served?
2806.33 How will BLM calculate the rent for
a grant or lease authorizing a single use
communication facility?
2806.34 How will BLM calculate the rent for
a grant or lease authorizing a multipleuse communication facility?
2806.35 How will BLM calculate rent for private mobile radio service (PMRS), internal microwave, and ’other’’ category
uses?
2806.36 If I am a tenant or customer in a facility, must I have my own grant or lease
and if so, how will this affect my rent?
2806.37 How will BLM calculate rent for a
grant or lease 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?

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2806.38 Can I combine multiple grants or
leases for facilities located on one site
into a single grant or lease?
2806.39 How will BLM calculate rent for a
lease for a facility manager’s use?
2806.40 How will BLM calculate rent for a
grant or lease for ancillary communication uses associated with communication
uses on the rent schedule?
2806.41 How will BLM calculate rent for
communication facilities ancillary to a
linear grant or other use authorization?
2806.42 How will BLM calculate rent for a
grant or lease authorizing a communication use within a federally-owned communication facility?
2806.43 How does BLM calculate rent for
passive reflectors and local exchange
networks?
2806.44 How will BLM calculate rent for a
facility owner’s or facility manager’s
grant or lease which authorizes communication uses?
SOLAR ENERGY RIGHTS-OF-WAY
2806.50 Rents and fees for solar energy
rights-of-way.
2806.51 Scheduled Rate Adjustment.
2806.52 Rents and fees for solar energy development grants.
2806.54 Rents and fees for solar energy development leases.
2806.56 Rent for support facilities authorized under separate grant(s).
2806.58 Rent for energy development testing
grants.
WIND ENERGY RIGHTS-OF-WAY
2806.60 Rents and fees for wind energy
rights-of-way.
2806.61 Scheduled Rate Adjustment.
2806.62 Rents and fees for wind energy development grants.
2806.64 Rents and fees for wind energy development leases.
2806.66 Rent for support facilities authorized under separate grant(s).
2806.68 Rent for energy development testing
grants.
OTHER RIGHTS-OF-WAY
2806.70 How will the BLM determine the
payment for a grant or lease when the
linear, communication use, solar energy,
or wind energy payment schedules do not
apply?

Subpart 2807—Grant Administration and
Operation
2807.10 When can I start activities under my
grant?
2807.11 When must I contact BLM during
operations?
2807.12 If I hold a grant, for what am I liable?

2807.13 As grant holders, what liabilities do
state, tribal, and local governments
have?
2807.14 How will BLM notify me if someone
else wants a grant for land subject to my
grant or near or adjacent to it?
2807.15 How is grant administration affected
if the land my grant encumbers is transferred to another Federal agency or out
of Federal ownership?
2807.16 Under what conditions may BLM
order an immediate temporary suspension of my activities?
2807.17 Under what conditions may BLM
suspend or terminate my grant?
2807.18 How will I know that BLM intends
to suspend or terminate my grant?
2807.19 When my grant terminates, what
happens to any facilities on it?
2807.20 When must I amend my application,
seek an amendment of my grant, or obtain a new grant?
2807.21 May I assign or make other changes
to my grant or lease?
2807.22 How do I renew my grant or lease?

Subpart 2808—Trespass
2808.10 What is trespass?
2808.11 What will BLM do if it determines
that I am in trespass?
2808.12 May I receive a grant if I am or have
been in trespass?

Subpart 2809—Competitive Process for
Leasing Public Lands for Solar and
Wind Energy Development Inside Designated Leasing Areas
2809.10 General.
2809.11 How will the BLM solicit nominations?
2809.12 How will the BLM select and prepare
parcels?
2809.13 How will the BLM conduct competitive offers?
2809.14 What types of bids are acceptable?
2809.15 How will the BLM select the successful bidder?
2809.16 When do variable offsets apply?
2809.17 Will the BLM ever reject bids or reconduct a competitive offer?
2809.18 What terms and conditions apply to
leases?
2809.19 Applications in designated leasing
areas or on lands that later become designated leasing areas.
AUTHORITY: 43 U.S.C. 1733, 1740, 1763, and
1764.
SOURCE: 70 FR 21058, Apr. 22, 2005, unless
otherwise noted.

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§ 2801.2

43 CFR Ch. II (10–1–20 Edition)

Subpart 2801—General
information
§ 2801.2 What is the objective of BLM’s
right-of-way program?
It is BLM’s objective to grant rightsof-way under the regulations in this
part to any qualified individual, business, or government entity and to direct and control the use of rights-ofway on public lands in a manner that:
(a) Protects the natural resources associated with public lands and adjacent
lands, whether private or administered
by a government entity;
(b) Prevents unnecessary or undue
degradation to public lands;
(c) Promotes the use of rights-of-way
in common considering engineering
and technological compatibility, national security, and land use plans; and
(d) Coordinates, to the fullest extent
possible, all BLM actions under the
regulations in this part with state and
local governments, interested individuals, and appropriate quasi-public entities.
§ 2801.5 What acronyms and terms are
used in the regulations in this part?
(a) Acronyms. As used in this part:
ALJ means Administrative Law
Judge.
BLM means the Bureau of Land Management.
CERCLA means the Comprehensive
Environmental Response Compensation
and Liability Act (42 U.S.C. 9601 et
seq.).
EA means environmental assessment.
EIS means environmental impact
statement.
IBLA means the Department of the
Interior, Board of Land Appeals.
IPD-GDP means the Implicit Price
Deflator, Gross Domestic Product, as
published in the most recent edition of
the Survey of Current Business of the
Department of Commerce, Bureau of
Economic Analysis.
NEPA means the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.).
RMA means the Ranally Metro Area
Population Ranking as published in the
most recent edition of the Rand
McNally Commercial Atlas and Marketing Guide.

(b) Terms. As used in this part, the
term:
Acreage rent means rent assessed for
solar and wind energy development
grants and leases that is determined by
the number of acres authorized for the
grant or lease.
Act means the Federal Land Policy
and Management Act of 1976 (43 U.S.C.
1701 et seq.).
Actual costs means the financial
measure of resources the Federal government expends or uses in processing
a right-of-way application or in monitoring the construction, operation, and
termination of a facility authorized by
a grant or permit. Actual costs includes both direct and indirect costs,
exclusive of management overhead
costs.
Application filing fee means a filing
fee specific to solar and wind energy
applications. This fee is an initial payment for the reasonable costs for processing, inspecting, and monitoring a
right-of-way.
Assignment means the transfer, in
whole or in part, of any right or interest in a right-of-way grant or lease
from the holder (assignor) to a subsequent party (assignee) with the BLM’s
written approval. A change in ownership of the grant or lease, or other related change-in-control transaction involving the holder, including a merger
or acquisition, also constitutes an assignment for purposes of these regulations requiring the BLM’s written approval, unless applicable statutory authority provides otherwise.
Base rent means the dollar amount
required from a grant or lease holder
on BLM managed lands based on the
communication use with the highest
value in the associated facility or facilities, as calculated according to the
communication use rent schedule. If a
facility manager’s or facility owner’s
scheduled rent is equal to the highest
rent charged a tenant in the facility or
facilities, then the facility manager’s
or facility owner’s use determines the
dollar amount of the base rent. Otherwise, the facility owner’s, facility manager’s, customer’s, or tenant’s use with
the highest value, and which is not
otherwise excluded from rent, determines the base rent.

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§ 2801.5

Casual use means activities ordinarily resulting in no or negligible disturbance of the public lands, resources,
or improvements. Examples of casual
use include: Surveying, marking routes,
and collecting data to use to prepare
grant applications.
Commercial purpose or activity refers
to the circumstance where a holder attempts to produce a profit by allowing
the use of its facilities by an additional
party. BLM may assess an appropriate
rent for such commercial activities.
The holder’s use may not otherwise be
subject to rent charges under BLM’s
rental provisions.
Communication use rent schedule is a
schedule of rents for the following
types of communication uses, including
related technologies, located in a facility associated with a particular grant
or lease. All use categories include ancillary communications equipment,
such as internal microwave or internal
one-or two-way radio, that are directly
related to operating, maintaining, and
monitoring the primary uses listed
below. The Federal Communications
Commission (FCC) may or may not license the primary uses. The type of use
and community served, identified on an
FCC license, if one has been issued, do
not supersede either the definitions in
this subpart or the procedures in
§ 2806.30 of this part for calculating rent
for communication facilities and uses
located on public land:
(1) Television broadcast means a use
that broadcasts UHF and VHF audio
and video signals for general public reception. This category does not include
low-power television (LPTV) or rebroadcast devices, such as translators,
or transmitting devices, such as microwave relays serving broadcast translators;
(2) AM and FM radio broadcast means
a use that broadcasts amplitude modulation (AM) or frequency modulation
(FM) audio signals for general public
reception. This category does not include low-power FM radio; rebroadcast
devices, such as translators; or boosters or microwave relays serving broadcast translators;
(3) Cable television means a use that
transmits video programming to multiple subscribers in a community over
a wired or wireless network. This cat-

egory does not include rebroadcast devices that retransmit television signals
of one or more television broadcast stations, or personal or internal antenna
systems, such as private systems serving hotels and residences;
(4) Broadcast translator, low-power television, and low-power FM radio means a
use of translators, LPTV, or low-power
FM radio (LPFM). Translators receive
a television or FM radio broadcast signal and rebroadcast it on a different
channel or frequency for local reception. In some cases the translator relays the true signal to an amplifier or
another translator. LPTV and LPFM
are broadcast translators that originate programming. This category also
includes translators associated with
public telecommunication services;
(5) Commercial mobile radio service
(CMRS)/facility manager means commercial mobile radio uses that provide mobile communication service to individual customers. Examples of CMRS include: Community repeaters, trunked
radio (specialized mobile radio), twoway radio voice dispatch, public
switched
network
(telephone/data)
interconnect service, microwave communications link equipment, and other
two-way voice and paging services.
‘‘Facility Managers’’ are grant or lease
holders that lease building, tower, and
related facility space to a variety of
tenants and customers as part of the
holder’s business enterprise, but do not
own or operate communication equipment in the facility for their own uses;
(6) Cellular telephone means a system
of mobile or fixed communication devices that use a combination of radio
and telephone switching technology
and provide public switched network
services to fixed or mobile users, or
both, within a defined geographic area.
The system consists of one or more cell
sites containing transmitting and receiving antennas, cellular base station
radio, telephone equipment, or microwave communications link equipment.
Examples of cellular telephone include:
Personal Communication Service, Enhanced Specialized Mobile Radio, Improved Mobile Telephone Service, Airto-Ground, Offshore Radio Telephone
Service, Cell Site Extenders, and Local
Multipoint Distribution Service;

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§ 2801.5

43 CFR Ch. II (10–1–20 Edition)

(7) Private mobile radio service (PMRS)
means uses supporting private mobile
radio systems primarily for a single entity for mobile internal communications. PMRS service is not sold and is
exclusively limited to the user in support of business, community activities,
or other organizational communication
needs. Examples of PMRS include: Private local radio dispatch, private paging services, and ancillary microwave
communications equipment for controlling mobile facilities;
(8) Microwave means communication
uses that:
(i) Provide long-line intrastate and
interstate public telephone, television,
and data transmissions; or
(ii) Support the primary business of
pipeline and power companies, railroads, land resource management companies, or wireless internet service provider (ISP) companies; and
(9) Other communication uses means
private communication uses, such as
amateur radio, personal/private receive-only antennas, natural resource
and environmental monitoring equipment, and other small, low-power devices used to monitor or control remote activities;
Customer means an occupant who is
paying a facility manager, facility
owner, or tenant for using all or any
part of the space in the facility, or for
communication services, and is not
selling communication services or
broadcasting to others. We consider
persons or entities benefitting from
private or internal communication
uses located in a holder’s facility as
customers for purposes of calculating
rent. Customer uses are not included in
calculating the amount of rent owed by
a facility owner, facility manager, or
tenant,
except
as
noted
in
§§ 2806.34(b)(4) and 2806.42 of this part.
Examples of customers include: Users of
PMRS, users in the microwave category when the microwave use is limited to internal communications, and
all users in the category of ‘‘Other
communication uses’’ (see paragraph
(a) of the definition of Communication
Use Rent Schedule in this section).
Designated leasing area means a parcel
of land with specific boundaries identified by the BLM land use planning
process as being a preferred location

for solar or wind energy development
that may be offered competitively.
Designated right-of-way corridor means
a parcel of land with specific boundaries identified by law, Secretarial
order, the land use planning process, or
other management decision, as being a
preferred location for existing and future linear rights-of-way and facilities.
The corridor may be suitable to accommodate more than one right-of-way use
or facility, provided that they are compatible with one another and the corridor designation.
Discharge has the meaning found at
33 U.S.C. 1321(a)(2) of the Clean Water
Act.
Facility means an improvement or
structure, whether existing or planned,
that is or would be owned and controlled by the grant or lease holder
within a right-of-way. For purposes of
communication site rights-of-way or
uses, facility means the building,
tower, and related incidental structures or improvements authorized
under the terms of the grant or lease.
Facility manager means a person or
entity that leases space in a facility to
communication users and:
(1) Holds a communication use grant
or lease;
(2) Owns a communications facility
on lands covered by that grant or lease;
and
(3) Does not own or operate communications equipment in the facility for
personal or commercial purposes.
Facility owner means a person or entity that may or may not lease space in
a facility to communication users and:
(1) Holds a communication use grant
or lease;
(2) Owns a communications facility
on lands covered by that grant or lease;
and
(3) Owns and operates his or her own
communications equipment in the facility for personal or commercial purposes.
Grant means any authorization or instrument (e.g., easement, lease, license, or permit) BLM issues under
Title V of the Federal Land Policy and
Management Act, 43 U.S.C. 1761 et seq.,
and those authorizations and instruments BLM and its predecessors issued
for like purposes before October 21,

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Bureau of Land Management, Interior

§ 2801.5

1976, under then existing statutory authority. It does not include authorizations issued under the Mineral Leasing
Act (30 U.S.C. 185).
Hazardous material means:
(1) Any substance or material defined
as hazardous, a pollutant, or a contaminant under CERCLA at 42 U.S.C.
9601(14) and (33);
(2) Any regulated substance contained in or released from underground
storage tanks, as defined by the Resource Conservation and Recovery Act
at 42 U.S.C. 6991;
(3) Oil, as defined by the Clean Water
Act at 33 U.S.C. 1321(a) and the Oil Pollution Act at 33 U.S.C. 2701(23); or
(4) Other substances applicable Federal, state, tribal, or local law define
and regulate as ‘‘hazardous.’’
Holder means any entity with a BLM
right-of-way authorization.
Management overhead costs means
Federal expenditures associated with a
particular Federal agency’s directorate. The BLM’s directorate includes
all State Directors and the entire
Washington Office staff, except where a
State Director or Washington Office
staff member is required to perform
work on a specific right-of-way case.
Megawatt (MW) capacity fee means
the fee paid in addition to the acreage
rent for solar and wind energy development grants and leases. The MW capacity fee is the approved MW capacity of
the solar or wind energy grant or lease
multiplied by the appropriate MW rate.
A grant or lease may provide for stages
of development, and the grantee or lessee will be charged a fee for each stage
by multiplying the MW rate by the approved MW capacity for the stage of
the project.
Megawatt rate means the price of
each MW of capacity for various solar
and wind energy technologies as determined by the MW rate formula. Current MW rates are found on the BLM’s
MW rate schedule, which can be obtained at any BLM office or at http://
www.blm.gov. The MW rate is calculated by multiplying the total hours
per year by the net capacity factor, by
the MW hour (MWh) price, and by the
rate of return, where:
(1) Net capacity factor means the average operational time divided by the average potential operational time of a

solar or wind energy development, multiplied by the current technology efficiency rates. The BLM establishes net
capacity factors for different technology types but may determine another net capacity factor to be more
appropriate, on a case-by-case or regional basis, to reflect changes in technology, such as a solar or wind project
that employs energy storage technologies, or if a grant or lease holder or
applicant is able to demonstrate that
another net capacity factor is appropriate for a particular project or region. The net capacity factor for each
technology type is:
(i) Photovoltaic (PV)—20 percent;
(ii) Concentrated photovoltaic (CPV)
and concentrated solar power (CSP)—25
percent;
(iii) CSP with storage capacity of 3
hours or more—30 percent; and
(iv) Wind energy—35 percent;
(2) Megawatt hour (MWh) price means
the 5 calendar-year average of the annual weighted average wholesale prices
per MWh for the major trading hubs
serving the 11 western States of the
continental United States (U.S.);
(3) Rate of return means the relationship of income (to the property owner)
to revenue generated from authorized
solar and wind energy development facilities based on the 10-year average of
the 20-year U.S. Treasury bond yield
rounded to the nearest one-tenth percent; and
(4) Hours per year means the total
number of hours in a year, which, for
purposes of this part, means 8,760
hours.
Monetary value of the rights and privileges you seek means the objective value
of the right-of-way or what the rightof-way grant is worth in financial
terms to the applicant.
Monitoring means those actions the
Federal government performs to ensure
compliance with the terms, conditions,
and stipulations of a grant.
(1) For Monitoring Categories 1
through 4, the actions include inspecting construction, operation, maintenance, and termination of permanent
or temporary facilities and protection
and rehabilitation activities until the
holder completes rehabilitation of the
right-of-way and BLM approves it;

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§ 2801.5

43 CFR Ch. II (10–1–20 Edition)

(2) For Monitoring Category 5 (Master Agreements), those actions agreed
to in the Master Agreement; and
(3) For Monitoring Category 6, those
actions agreed to between BLM and the
applicant before BLM issues the grant.
Performance and reclamation bond
means the document provided by the
holder of a right-of-way grant or lease
that provides the appropriate financial
guarantees, including cash, to cover
potential liabilities or specific requirements identified by the BLM for the
construction, operation, decommissioning, and reclamation of an authorized right-of-way on public lands.
(1) Acceptable bond instruments. The
BLM will accept cash, cashier’s or certified check, certificate or book entry
deposits, negotiable U.S. Treasury securities, and surety bonds from the approved list of sureties (U.S. Treasury
Circular 570) payable to the BLM. Irrevocable letters of credit payable to
the BLM and issued by banks or financial institutions organized or authorized to transact business in the United
States are also acceptable bond instruments. An insurance policy can also
qualify as an acceptable bond instrument, provided that the BLM is a
named beneficiary of the policy, and
the BLM determines that the insurance
policy will guarantee performance of
financial obligations and was issued by
an insurance carrier that has the authority to issue policies in the applicable jurisdiction and whose insurance
operations are organized or authorized
to transact business in the United
States.
(2) Unacceptable bond instruments. The
BLM will not accept a corporate guarantee as an acceptable form of bond instrument.
Public lands means any land and interest in land owned by the United
States within the several states and
administered by the Secretary of the
Interior through BLM without regard
to how the United States acquired ownership, except lands:
(1) Located on the Outer Continental
Shelf; and
(2) Held for the benefit of Indians,
Aleuts, and Eskimos.
Reasonable costs has the meaning
found at section 304(b) of the Act.

Reclamation cost estimate (RCE) means
the estimate of costs to restore the
land to a condition that will support
pre-disturbance land uses. This includes the cost to remove all improvements made under the right-of-way authorization, return the land to approximate original contour, and establish a
sustainable vegetative community, as
required by the BLM. The RCE will be
used to establish the appropriate
amount for financial guarantees of
land uses on the public lands, including
those uses authorized by right-of-way
grants or leases issued under this part.
Release has the meaning found at 42
U.S.C. 9601(22) of CERCLA.
Right-of-way means the public lands
that the BLM authorizes a holder to
use or occupy under a particular grant
or lease.
Screening criteria for solar and wind
energy development refers to the policies
and procedures that the BLM uses to
prioritize how it processes solar and
wind energy development right-of-way
applications to facilitate the environmentally responsible development of
such facilities through the consideration of resource conflicts, land use
plans, and applicable statutory and
regulatory requirements. Applications
for projects with lesser resource conflicts are anticipated to be less costly
and time-consuming for the BLM to
process and will be prioritized over
those with greater resource conflicts.
Short-term right-of-way grant means
any grant issued for a term of 3 years
or less for such uses as storage sites,
construction areas, and site testing
and monitoring activities, including
site characterization studies and environmental monitoring.
Site means an area, such as a mountaintop, where a holder locates one or
more communication or other right-ofway facilities.
Substantial deviation means a change
in the authorized location or use which
requires:
(1) Construction or use outside the
boundaries of the right-of-way; or
(2) Any change from, or modification
of, the authorized use. Examples of substantial deviation include: Adding equipment, overhead or underground lines,
pipelines, structures, or other facilities
not included in the original grant.

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§ 2801.6

Tenant means an occupant who is
paying a facility manager, facility
owner, or other entity for occupying
and using all or any part of a facility.
A tenant operates communication
equipment in the facility for profit by
broadcasting to others or selling communication services. For purposes of
calculating the amount of rent that
BLM charges, a tenant’s use does not
include:
(1) Private mobile radio or internal
microwave use that is not being sold;
or
(2) A use in the category of ‘‘Other
Communication Uses’’ (see paragraph
(a) of the definition of Communication
Use Rent Schedule in this section).
Third party means any person or entity other than BLM, the applicant, or
the holder of a right-of-way authorization.
Tramway means a system for carrying passengers, logs, or other material using traveling carriages or cars
suspended from an overhead cable or
cables supported by a series of towers,
hangers, tailhold anchors, guyline
trees, etc.
Transportation and utility corridor
means a parcel of land, without fixed
limits or boundaries, that holders use
as the location for one or more transportation or utility rights-of-way.
Zone means one of eight geographic
groupings necessary for linear right-ofway rent assessment purposes, covering all lands in the contiguous
United States.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92205, Dec. 19, 2016]

§ 2801.6 Scope.
(a) What do these regulations apply to?
The regulations in this part apply to:
(1) Grants for necessary transportation or other systems and facilities
which are in the public interest and
which require the use of public lands
for the purposes identified in 43 U.S.C.
1761, and administering, amending, assigning, renewing, and terminating
them;
(2) Grants to Federal departments or
agencies for all systems and facilities
identified in§ 2801.9(a), including grants
for transporting by pipeline and related
facilities, commodities such as oil, natural gas, synthetic liquid or gaseous

fuels, and any refined products produced from them; and
(3) Grants issued on or before October
21, 1976, under then existing statutory
authority, unless application of these
regulations would diminish or reduce
any rights conferred by the original
grant or the statute under which it was
issued. Where there would be a diminishment or reduction in any right, the
grant or statute applies.
(b) What don’t these regulations apply
to? The regulations in this part do not
apply to:
(1) Federal Aid Highways, for which
Federal Highway Administration procedures apply;
(2) Roads constructed or used according to reciprocal and cost share road
use agreement under subpart 2812 of
this chapter;
(3) Lands within designated wilderness areas, although BLM may authorize some uses under parts 2920 and 6300
of this chapter;
(4) Grants to holders other than Federal departments or agencies for transporting by pipeline and related facilities oil, natural gas, synthetic liquid or
gaseous fuels, or any refined product
produced from them (see part 2880 of
this chapter);
(5) Public highways constructed
under the authority of Revised Statute
(R.S.) 2477 (43 U.S.C. 932, repealed October 21, 1976);
(6) Reservoirs, canals, and ditches
constructed under the authority of
R.S. 2339 and R.S. 2340 (43 U.S.C. 661, repealed in part, October 21, 1976); or
(7)(i) Any project or portion of a
project that, prior to October 24, 1992,
was licensed under, or granted an exemption from, part I of the Federal
Power Act (FPA) (16 U.S.C. 791a et seq.)
which:
(A) Is located on lands subject to a
reservation under section 24 (16 U.S.C.
818) of the FPA;
(B) Did not receive a grant under
Title V of the Federal Land Policy and
Management Act (FLPMA) before October 24, 1992; and
(C) Includes continued operation of
such project (license renewal) under
section 15 (16 U.S.C. 808) of the FPA;
(ii) Paragraph (b)(7)(i) of this section
does not apply to any additional public

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43 CFR Ch. II (10–1–20 Edition)

lands the project uses that are not subject to the reservation in paragraph
(b)(7)(i)(A) of this section.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92207, Dec. 19, 2016]

§ 2801.8 Severability.
If a court holds any provisions of the
regulations 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 will not
be affected.
§ 2801.9 When do I need a grant?
(a) You must have a grant under this
part when you plan to use public lands
for systems or facilities over, under,
on, or through public lands. These include, but are not limited to:
(1)
Reservoirs,
canals,
ditches,
flumes, laterals, pipelines, tunnels, and
other systems which impound, store,
transport, or distribute water;
(2) Pipelines and other systems for
transporting or distributing liquids and
gases, other than water and other than
oil, natural gas, synthetic liquid or
gaseous fuels, or any refined products
from them, or for storage and terminal
facilities used in connection with
them;
(3) Pipelines, slurry and emulsion
systems, and conveyor belts for transporting and distributing solid materials and facilities for storing such materials in connection with them;
(4) Systems for generating, transmitting, and distributing electricity, including solar and wind energy development facilities and associated shortterm actions, such as site and
geotechnical testing for solar and wind
energy projects;
(5) Systems for transmitting or receiving electronic signals and other
means of communication;
(6) Transportation systems, such as
roads, trails, highways, railroads, canals, tunnels, tramways, airways, and
livestock driveways; and
(7) Such other necessary transportation or other systems or facilities,
including any temporary or short-term
surface disturbing activities associated
with approved systems or facilities,
which are in the public interest and
which require rights-of-way.

(b) If you apply for a right-of-way
grant for generating, transmitting, and
distributing electricity, you must also
comply with the applicable requirements of the Federal Energy Regulatory Commission under the Federal
Power Act of 1935, 16 U.S.C. 791a et seq.,
and 18 CFR chapter I.
(c) See part 2880 of this chapter for
information about authorizations BLM
issues under the Mineral Leasing Act
for transporting oil and gas resources.
(d) All systems, facilities, and related
activities for solar and wind energy
projects are specifically authorized as
follows:
(1) Energy site-specific testing activities, including those with individual
meteorological towers and instrumentation facilities, are authorized with a
short-term right-of-way grant issued
for 3 years or less;
(2) Energy project-area testing activities are authorized with a shortterm right-of-way grant for an initial
term of 3 years or less with the option
to renew for one additional 3-year period under § 2805.14(h) when the renewal
application is accompanied by an energy development application;
(3) Solar and wind energy development facilities located outside designated leasing areas, and those facilities located inside designated leasing
areas under § 2809.17(d)(2), are authorized with a right-of-way grant issued
for up to 30 years (plus the initial partial year of issuance). An application
for renewal of the grant may be submitted under § 2805.14(g);
(4) Solar and wind energy development facilities located inside designated leasing areas are authorized
with a solar or wind energy development lease when issued competitively
under subpart 2809. The term is fixed
for 30 years (plus the initial partial
year of issuance). An application for renewal of the lease may be submitted
under § 2805.14(g); and
(5) Other associated actions not specifically
included
in
§ 2801.9(d)(1)
through (4), such as geotechnical testing and other temporary land disturbing activities, are authorized with
a short-term right-of-way grant issued
for 3 years or less.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92207, Dec. 19, 2016]

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§ 2802.11

§ 2801.10 How do I appeal a BLM decision issued under the regulations in
this part?

§ 2802.11 How does the BLM designate
right-of-way corridors and designated leasing areas?

(a) You may appeal a BLM decision
issued under the regulations in this
part in accordance with part 4 of this
title.
(b) All BLM decisions under this part
remain in effect pending appeal unless
the Secretary of the Interior rules otherwise, or as noted in this part. You
may petition for a stay of a BLM decision under this part with the Office of
Hearings and Appeals, Department of
the Interior. Unless otherwise noted in
this part, BLM will take no action on
your application while your appeal is
pending.

(a) The BLM may determine the locations and boundaries of right-of-way
corridors or designated leasing areas
during the land use planning process
described in part 1600 of this chapter.
During this process, the BLM coordinates with other Federal agencies,
State, local, and tribal governments,
and the public to identify resource-related issues, concerns, and needs. The
process results in a resource management plan or plan amendment, which
addresses the extent to which you may
use public lands and resources for specific purposes.
(b) When determining which lands
may be suitable for right-of-way corridors or designated leasing areas, the
factors the BLM considers include, but
are not limited to, the following:
(1) Federal, state, and local land use
plans, and applicable Federal, state,
local, and tribal laws;
(2) Environmental impacts on cultural resources and natural resources,
including air, water, soil, fish, wildlife,
and vegetation;
(3) Physical effects and constraints
on corridor placement or leasing areas
due to geology, hydrology, meteorology, soil, or land forms;
(4) Costs of construction, operation,
and maintenance and costs of modifying or relocating existing facilities in
a proposed right-of-way corridor or designated leasing area (i.e., the economic
efficiency of placing a right-of-way
within a proposed corridor or providing
a lease inside a designated leasing
area);
(5) Risks to national security;
(6) Potential health and safety hazards imposed on the public by facilities
or activities located within the proposed right-of-way corridor or designated leasing area;
(7) Social and economic impacts of
the right-of-way corridor or designated
leasing area on public land users, adjacent landowners, and other groups or
individuals;
(8) Transportation and utility corridor studies previously developed by
user groups; and

Subpart 2802—Lands Available for
FLPMA Grants
§ 2802.10 What lands are available for
grants?
(a) In its discretion, BLM may grant
rights-of-way on any lands under its jurisdiction except when:
(1) A statute, regulation, or public
land order specifically excludes rightsof-way;
(2) The lands are specifically segregated or withdrawn from right-ofway uses; or
(3) BLM identifies areas in its land
use plans or in the analysis of an application as inappropriate for right-ofway uses.
(b) BLM may require common use of
a right-of-way and may require, to the
extent practical, location of new
rights-of-way within existing or designated right-of-way corridors (see
§ 2802.11 of this subpart). Safety and
other considerations may limit the extent to which you may share a right-ofway. BLM will designate right-of-way
corridors through land use plan decisions.
(c) You should contact the BLM office nearest the lands you seek to use
to:
(1) Determine whether or not the
land you want to use is available for
that use; and
(2) Begin discussions about any application you may need to file.

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43 CFR Ch. II (10–1–20 Edition)

(9) Engineering and technological
compatibility of proposed and existing
facilities.
(c) BLM may designate any transportation and utility corridor existing
prior to October 21, 1976, as a transportation and utility corridor without further review.
(d) The resource management plan or
plan amendment may also identify
areas where the BLM will not allow
right-of-way corridors or designated
leasing areas for environmental, safety, or other reasons.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92207, Dec. 20, 2016]

Subpart 2803—Qualifications for
Holding FLPMA Grants
§ 2803.10

Who may hold a grant?

To hold a grant under these regulations, you must be:
(a) An individual, association, corporation, partnership, or similar business entity, or a Federal agency or
state, tribal, or local government;
(b) Technically and financially able
to construct, operate, maintain, and
terminate the use of the public lands
you are applying for; and
(c) Of legal age and authorized to do
business in the state where the rightof-way you seek is located.

Subpart 2804—Applying for FLPMA
Grants
§ 2804.10 What should I do before I file
my application?
(a) Before filing an application with
BLM, we encourage you to make an appointment for a preapplication meeting
with the appropriate personnel in the
BLM field office having jurisdiction
over the lands you seek to use. During
the preapplication meeting, BLM can:
(1) Identify potential routing and
other constraints;
(2) Determine whether the lands are
located inside a designated or existing
right-of-way corridor or a designated
leasing area;
(3) Tentatively schedule the processing of your proposed application;
and
(4) Inform you of your financial obligations, such as processing and monitoring costs and rents.
(b) Subject to § 2804.13 of this subpart,
BLM may share any information you
provide under paragraph (a) of this section with Federal, state, tribal, and
local government agencies to ensure
that:
(1) These agencies are aware of any
authorizations you may need from
them; and
(2) We initiate effective coordinated
planning as soon as possible.

§ 2803.11 Can another person act on
my behalf?

[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92207, Dec. 19, 2016]

Another person may act on your behalf if you have authorized the person
to do so under the laws of the state
where the right-of-way is or will be located.

§ 2804.11 Where do I file my grant application?
(a) You must file the grant application in the BLM field office having jurisdiction over the lands affected by
your application.
(b) If your application affects more
than one BLM administrative unit, you
may file at any BLM office having jurisdiction over any part of the project.
BLM will notify you where to direct
subsequent communications.

§ 2803.12 What happens to my application or grant if I die?
(a) If an applicant or grant holder
dies, any inheritable interest in an application or grant will be distributed
under state law.
(b) If the distributee of a grant is not
qualified to hold a grant under § 2803.10
of this subpart, BLM will recognize the
distributee as grant holder and allow
the distributee to hold its interest in
the grant for up to two years. During
that period, the distributee must either
become qualified or divest itself of the
interest.

§ 2804.12 What must I do when submitting my application?
(a) File your application on Standard
Form 299, available from any BLM office or at http://www.blm.gov, and fill in
the required information as completely
as possible. Your completed application must include the following:

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§ 2804.12

(1) A description of the project and
the scope of the facilities;
(2) The estimated schedule for constructing, operating, maintaining, and
terminating the project;
(3) The estimated life of the project
and the proposed construction and reclamation techniques;
(4) A map of the project, showing its
proposed location and existing facilities adjacent to the proposal;
(5) A statement of your financial and
technical capability to construct, operate, maintain, and terminate the
project;
(6) Any plans, contracts, agreements,
or other information concerning your
use of the right-of-way and its effect on
competition;
(7) A statement certifying that you
are of legal age and authorized to do
business in the State(s) where the
right-of-way would be located and that
you have submitted correct information to the best of your knowledge; and
(8) A schedule for the submission of a
plan of development (POD) conforming
to the POD template at http://
www.blm.gov, should the BLM require
you to submit a POD under § 2804.25(c).
(b) When submitting an application
for a solar or wind energy development
project or for a transmission line
project with a capacity of 100 kV or
more, in addition to the information
required in paragraph (a) of this section, you must:
(1) Include a general description of
the proposed project and a schedule for
the submission of a POD conforming to
the
POD
template
at
http://
www.blm.gov;
(2) Address all known potential resource conflicts with sensitive resources and values, including special
designations or protections, and include applicant-proposed measures to
avoid, minimize, and compensate for
such resource conflicts, if any;
(3) Initiate early discussions with
any grazing permittees that may be affected by the proposed project in accordance with 43 CFR 4110.4–2(b); and
(4) Within 6 months from the time
the BLM receives the cost recovery fee
under § 2804.14, schedule and hold two
preliminary application review meetings as follows:

(i) The first meeting will be with the
BLM to discuss the general project proposal, the status of BLM land use planning for the lands involved, potential
siting issues or concerns, potential environmental issues or concerns, potential alternative site locations and the
right-of-way application process;
(ii) The second meeting will be with
appropriate Federal and State agencies
and tribal and local governments to facilitate coordination of potential environmental and siting issues and concerns; and
(iii) You and the BLM may agree to
hold additional preliminary application review meetings.
(c) When submitting an application
for a solar or wind energy project
under this subpart rather than subpart
2809, you must:
(1) Propose a project sited on lands
outside a designated leasing area, except as provided for by § 2809.19; and
(2) Pay an application filing fee of $15
per acre for solar or wind energy development applications and $2 per acre for
energy project-area testing applications. The BLM will refund your fee,
except for the reasonable costs incurred on your behalf, if you are the
unsuccessful bidder in a competitive
offer held under § 2804.30 or subpart
2809. The BLM will adjust the application filing fee at least once every 10
years using the change in the Implicit
Price Deflator, Gross Domestic Product (IPD–GDP) for the preceding 10year period and round it to the nearest
one-half dollar. This 10-year average
will be adjusted at the same time as
the Per Acre Rent Schedule for linear
rights-of-way under § 2806.22.
(d) If you are unable to meet a requirement of the application outlined
in this section, you may submit a request for an alternative requirement
under § 2804.40.
(e) If you are a business entity, you
must also submit the following information:
(1) Copies of the formal documents
creating the entity, such as articles of
incorporation, and including the corporate bylaws;
(2) Evidence that the party signing
the application has the authority to
bind the applicant;

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43 CFR Ch. II (10–1–20 Edition)

(3) The name and address of each participant in the business;
(4) The name and address of each
shareholder owning 3 percent or more
of the shares and the number and percentage of any class of voting shares of
the entity which such shareholder is
authorized to vote;
(5) The name and address of each affiliate of the business;
(6) The number of shares and the percentage of any class of voting stock
owned by the business, directly or indirectly, in any affiliate controlled by
the business;
(7) The number of shares and the percentage of any class of voting stock
owned by an affiliate, directly or indirectly, in the business controlled by
the affiliate; and
(8) If you have already provided the
information
in
paragraphs
(b)(1)
through (7) of this section to the BLM
and the information remains accurate,
you need only reference the BLM serial
number under which you previously
filed it.
(f) The BLM may require you to submit additional information at any time
while processing your application. See
§ 2884.11(c) of this chapter for the type
of information we may require.
(g) If you are a Federal oil and gas
lessee or operator and you need a rightof-way for access to your production
facilities or oil and gas lease, you may
include your right-of-way requirements
with your Application for Permit to
Drill or Sundry Notice required under
parts 3160 through 3190 of this chapter.
(h) If you are filing with another Federal agency for a license, certificate of
public convenience and necessity, or
other authorization for a project involving a right-of-way on public lands,
simultaneously file an application with
the BLM for a grant. Include a copy of
the materials, or reference all the information, you filed with the other
Federal agency.
(i) Inter-agency coordination. You may
request, in writing, an exemption from
the requirements of this section if you
can demonstrate to the BLM that you
have satisfied similar requirements by
participating in an inter-agency coordination process with another Fed-

eral, State, local, or Tribal authority.
No exemption is approved until you receive BLM approval in writing.
[81 FR 92207, Dec. 19, 2016]

§ 2804.13 Will BLM keep my information confidential?
BLM will keep confidential any information in your application that you
mark as ‘‘confidential’’ or ‘‘proprietary’’ to the extent allowed by law.
§ 2804.14 What is the processing fee for
a grant application?
(a) Unless you are exempt under
§ 2804.16, you must pay a fee to the BLM
for the reasonable costs of processing
your application. Subject to applicable
laws and regulations, if processing
your application involves Federal
agencies other than the BLM, your fee
may also include the reasonable costs
estimated to be incurred by those Federal agencies. Instead of paying the
BLM a fee for the reasonable costs incurred by other Federal agencies in
processing your application, you may
pay other Federal agencies directly for
such costs. Reasonable costs are those
costs as defined in Section 304(b) of
FLPMA (43 U.S.C. 1734(b)). The fees for
Processing Categories 1 through 4 (see
paragraph (b) of this section) are onetime fees and are not refundable. The
fees are categorized based on an estimate of the amount of time that the
Federal Government will expend to
process your application and issue a decision granting or denying the application.
(b) There is no processing fee if the
Federal Government’s work is estimated to take 1 hour or less. Processing fees are based on categories. The
BLM will update the processing fees for
Categories 1 through 4 in the schedule
each calendar year, based on the previous year’s change in the IPD–GDP, as
measured second quarter to second
quarter, rounded to the nearest dollar.
The BLM will update Category 5 processing fees as specified in the Master
Agreement. These categories and the
estimated range of Federal work hours
for each category are:

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§ 2804.16

PROCESSING CATEGORIES
Processing category

Federal work hours involved

(1) Applications for new grants, assignments, renewals, and amendments to existing grants ....
(2) Applications for new grants, assignments, renewals, and amendments to existing grants ....
(3) Applications for new grants, assignments, renewals, and amendments to existing grants ....
(4) Applications for new grants, assignments, renewals, and amendments to existing grants ....
(5) Master agreements ...................................................................................................................
(6) Applications for new grants, assignments, renewals, and amendments to existing grants ....

(c) You may obtain a copy of the current year’s processing fee schedule
from any BLM State, district, or field
office or by writing: U.S. Department
of the Interior, Bureau of Land Management, 20 M Street SE., Room
2134LM, Washington, DC 20003. The
BLM also posts the current processing
fee schedule at http://www.blm.gov.
(d) After an initial review of your application, BLM will notify you of the
processing category into which your
application fits. You must then submit
the appropriate payment for that category before BLM begins processing
your application. Your signature on a
cost recovery Master Agreement constitutes your agreement with the processing category decision. If you disagree with the category that BLM has
determined for your application, you
may appeal the decision under § 2801.10
of this part. For Processing Categories
5 and 6 applications, see §§ 2804.17,
2804.18, and 2804.19 of this subpart. If
you paid the processing fee and you appeal a Processing Category 1 through 4
or a Processing Category 6 determination, BLM will process your application while the appeal is pending. If
IBLA finds in your favor, you will receive a refund or adjustment of your
processing fee.
(e) In processing your application,
BLM may determine at any time that
the application requires preparing an
EIS. If this occurs, BLM will send you
a decision changing your processing
category to Processing Category 6. You
may appeal this decision under § 2801.10
of this part.
(f) To expedite processing of your application, you may notify BLM in writing that you are waiving paying reasonable costs and are electing to pay

Estimated Federal
are >1 ≤ 8
Estimated Federal
are >8 ≤ 24
Estimated Federal
are >24 ≤ 36
Estimated Federal
are >36 ≤ 50
Varies
Estimated Federal
are >50

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work hours
work hours

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the full actual costs incurred by BLM
in processing your application and
monitoring your grant.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92208, Dec. 19, 2016]

§ 2804.15 When does BLM reevaluate
the processing and monitoring fees?
BLM reevaluates the processing and
monitoring fees (see § 2805.16 of this
part) for each category and the categories themselves within 5 years after
they go into effect and at 10-year intervals after that. When reevaluating
processing and monitoring fees, BLM
considers all factors that affect the
fees, including, but not limited to, any
changes in:
(a) Technology;
(b) The procedures for processing applications and monitoring grants;
(c) Statutes and regulations relating
to the right-of-way program; or
(d) The IPD-GDP.
§ 2804.16 Who is exempt from paying
processing and monitoring fees?
You are exempt from paying processing and monitoring fees if:
(a) You are a state or local government, or an agency of such a government, and BLM issues the grant for
governmental purposes benefitting the
general public. If your principal source
of revenue results from charges you
levy on customers for services similar
to those of a profit-making corporation
or business, you are not exempt; or
(b) Your application under this subpart is associated with a cost-share
road or reciprocal right-of-way agreement.

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§ 2804.17

43 CFR Ch. II (10–1–20 Edition)

§ 2804.17 What is a Master Agreement
(Processing Category 5) and what
information must I provide to BLM
when I request one?
(a) A Master Agreement (Processing
Category 5) is a written agreement covering processing and monitoring fees
(see § 2805.16 of this part) negotiated between BLM and you that involves multiple BLM grant approvals for projects
within a defined geographic area.
(b) Your request for a Master Agreement must:
(1) Describe the geographic area covered by the Agreement and the scope of
the activity you plan;
(2) Include a preliminary work plan.
This plan must state what work you
must do and what work BLM must do
to process your application. Both parties must periodically update the work
plan, as specified in the Agreement,
and mutually agree to the changes;
(3) Contain a preliminary cost estimate and a timetable for processing
the application and completing the
projects;
(4) State whether you want the
Agreement to apply to future applications in the same geographic area that
are not part of the same projects; and
(5) Contain any other relevant information that BLM needs to process the
application.
§ 2804.18 What provisions do Master
Agreements contain and what are
their limitations?
(a) A Master Agreement:
(1) Specifies that you must comply
with all applicable laws and regulations;
(2) Describes the work you will do
and the work BLM will do to process
the application;
(3) Describes the method of periodic
billing, payment, and auditing;
(4) Describes the processes, studies,
or evaluations you will pay for;
(5) Explains how BLM will monitor
the grant and how BLM will recover
monitoring costs;
(6) Describes existing agreements between the BLM and other Federal
agencies for cost reimbursement;
(7) Contains provisions allowing for
periodic review and updating, if required;

(8) Contains specific conditions for
terminating the Agreement; and
(9) Contains any other provisions
BLM considers necessary.
(b) BLM will not enter into any
Agreement that is not in the public interest.
(c) If you sign a Master Agreement,
you waive your right to request a reduction of processing and monitoring
fees.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92209, Dec. 19, 2016]

§ 2804.19 How will BLM process my
Processing Category 6 application?
(a) For Processing Category 6 applications, you and the BLM must enter
into a written agreement that describes how the BLM will process your
application. The final agreement consists of a work plan, a financial plan,
and a description of any existing agreements you have with other Federal
agencies for cost reimbursement associated with your application.
(b) In processing your application,
BLM will:
(1) Determine the issues subject to
analysis under NEPA;
(2) Prepare a preliminary work plan;
(3) Develop a preliminary financial
plan, which estimates the reasonable
costs of processing your application
and monitoring your project;
(4) Discuss with you:
(i) The preliminary plans and data;
(ii) The availability of funds and personnel;
(iii) Your options for the timing of
processing and monitoring fee payments; and
(iv) Financial information you must
submit; and
(5) Complete final scoping and develop final work and financial plans
which reflect any work you have
agreed to do. BLM will also present
you with the final estimate of the reasonable costs you must reimburse
BLM, including the cost for monitoring
the project, using the factors in
§§ 2804.20 and 2804.21 of this subpart.
(c) BLM retains the option to prepare
any environmental documents related
to your application. If BLM allows you
to prepare any environmental documents and conduct any studies that
BLM needs to process your application,

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§ 2804.21

you must do the work following BLM
standards. For this purpose, you and
BLM may enter into a written agreement. BLM will make the final determinations and conclusions arising from
such work.
(d) BLM will periodically, as stated
in the agreement, estimate processing
costs for a specific work period and notify you of the amount due. You must
pay the amount due before BLM will
continue working on your application.
If your payment exceeds the reasonable
costs that BLM incurred for the work,
BLM will either adjust the next billing
to reflect the excess, or refund you the
excess under 43 U.S.C. 1734. You may
not deduct any amount from a payment without BLM’s prior written approval.
(e) We may collect reimbursement
for reasonable costs to the United
States for processing applications and
other documents under this part relating to the public lands.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92209, Dec. 19, 2016]

§ 2804.20 How does BLM determine
reasonable costs for Processing Category 6 or Monitoring Category 6
applications?
BLM will consider the factors in
paragraph (a) of this section and
§ 2804.21 of this subpart to determine
reasonable costs. Submit to the BLM
field office having jurisdiction over the
lands covered by your application a
written analysis of those factors applicable to your project, unless you agree
in writing to waive consideration of
reasonable costs and elect to pay full
actual costs (see § 2804.14(f) of this subpart). Submitting your analysis with
the application will expedite its handling. BLM may require you to submit
additional information in support of
your position. While we consider your
written analysis, BLM will not process
your Category 6 application.
(a) FLPMA factors. If your application is for a Processing Category 6, or
a Monitoring Category 6 project, the
BLM State Director having jurisdiction over the lands you are applying to
use will apply the following factors set
forth at section 304(b) of FLPMA, 43
U.S.C. 1734(b), to determine the amount
you owe. With your application, submit

your analysis of how each of the following factors applies to your application:
(1) Actual costs to the Federal Government (exclusive of management
overhead costs) of processing your application and of monitoring construction, operation, maintenance, and termination of a facility authorized by
the right-of-way grant;
(2) Monetary value of the rights or
privileges you seek;
(3) BLM’s ability to process an application with maximum efficiency and
minimum expense, waste, and effort;
(4) Costs incurred for the benefit of
the general public interest rather than
for the exclusive benefit of the applicant. That is, the costs for studies and
data collection that have value to the
Federal Government or the general
public apart from processing the application;
(5) Any tangible improvements, such
as roads, trails, and recreation facilities, which provide significant public
service and are expected in connection
with constructing and operating the facility;
(6) Existing agreements between the
BLM and other Federal agencies for
cost reimbursement associated with
such application; and
(7) Other factors relevant to the reasonableness of the costs (see § 2804.21 of
this subpart).
(b) Fee determination. After considering your analysis and other information, BLM will notify you in writing of
what you owe. If you disagree with
BLM’s determination, you may appeal
it under § 2801.10 of this part.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92209, Dec. 19, 2016]

§ 2804.21 What other factors will BLM
consider in determining processing
and monitoring fees?
(a) Other factors. If you include this
information in your application, in arriving at your processing or monitoring fee in any category, the BLM
State Director will consider whether:
(1) Payment of actual costs would:
(i) Result in undue financial hardship
to your small business, and you would
receive little monetary value from
your grant as compared to the costs of
processing and monitoring; or

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§ 2804.22

43 CFR Ch. II (10–1–20 Edition)

(ii) Create such undue financial hardship as to prevent your use and enjoyment of your right-of-way for a noncommercial purpose.
(2) The costs of processing the application and monitoring the issued grant
grossly exceed the costs of constructing the project;
(3) You are a non-profit organization,
corporation, or association which is
not controlled by or a subsidiary of a
profit-making enterprise; and
(i) The studies undertaken in connection with processing the application or
monitoring the grant have a public
benefit; or
(ii) The facility or project will provide a benefit or special service to the
general public or to a program of the
Secretary;
(4) You need a grant to prevent or
mitigate damages to any lands or property or to mitigate hazards or danger
to public health and safety resulting
from an act of God, an act of war, or
negligence of the United States;
(5) You have a grant and need to secure a new or amended grant in order
to relocate an authorized facility to
comply with public health and safety
and environmental protection laws,
regulations, and standards which were
not in effect at the time BLM issued
your original grant;
(6) You have a grant and need to secure a new grant to relocate facilities
which you have to move because a Federal agency or federally-funded project
needs the lands and the United States
does not pay the costs associated with
your relocation; or
(7) For whatever other reason, such
as public benefits or public services
provided, collecting processing and
monitoring fees would be inconsistent
with prudent and appropriate management of public lands and with your equitable interests or the equitable interests of the United States.
(b) Fee determination. With your written application, submit your analysis
of how each of the factors, as applicable, in paragraph (a) of this section pertain to your application. BLM will notify you in writing of the BLM State
Director’s fee determination. You may
appeal this decision under § 2801.10 of
this part.

§ 2804.22 How will the availability of
funds affect the timing of BLM’s
processing?
If BLM has insufficient funds to process your application, we will not process it until funds become available or
you elect to pay full actual costs under
§ 2804.14(f) of this part.
§ 2804.23 When will the BLM use a
competitive process?
(a) If there are two or more competing applications for the same facility or system and your application is
in:
(1) Processing Category 1 through 4.
You must reimburse the Federal Government for processing costs as if the
other application or applications had
not been filed.
(2) Processing Category 6. You are responsible for processing costs identified in your application. If BLM cannot
readily separate costs, such as costs associated with preparing environmental
analyses, you and any competing applicants must pay an equal share or a proportion agreed to in writing among all
applicants and BLM. If you agree to
share costs that are common to your
application and that of a competing applicant, and the competitor does not
pay the agreed upon amount, you are
liable for the entire amount due. The
applicants must pay the entire processing fee in advance. BLM will not
process your application until we receive the advance payments.
(b) Who determines whether competition
exists? BLM determines whether the applications are compatible in a single
right-of-way system or are competing
applications for the same system.
(c) If we determine that competition
exists, we will describe the procedures
for a competitive bid through a bid announcement in the FEDERAL REGISTER.
We may also provide notice by other
methods, such as a newspaper of general circulation in the area affected by
the potential right-of-way, or the
Internet. We may offer lands through a
competitive process on our own initiative. The BLM will not competitively
offer lands for which the BLM has accepted an application and received a
plan of development and cost recovery
agreement.

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Bureau of Land Management, Interior

§ 2804.25

(d) Competitive process for solar and
wind energy development outside designated leasing areas. Lands outside designated leasing areas may be made
available for solar and wind energy applications through a competitive application process established by the BLM
under § 2804.30.
(e) Competitive process for solar and
wind energy development inside designated leasing areas. Lands inside designated leasing areas may be offered
competitively under subpart 2809.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92209, Dec. 19, 2016]

§ 2804.24 Do I always have to submit
an application for a grant using
Standard Form 299?
You do not have to file an application using Standard Form 299 if:
(a) The BLM offers lands competitively under § 2804.23(c) and you have
already submitted an application for
the facility or system;
(b) The BLM offers lands for competitive lease under subpart 2809 of this
part; or
(c) You are an oil and gas operator.
You may include your right-of-way requirements for a FLPMA grant as part
of your Application for Permit to Drill
or Sundry Notice under the regulations
in parts 3160 through 3190 of this chapter.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92209, Dec. 19, 2016]

§ 2804.25 How will BLM process my application?
(a) The BLM will notify you in writing when it receives your application.
This notification will also:
(1) Identify your processing fee described at § 2804.14; and
(2) Inform you of any other grant applications which involve all or part of
the lands for which you applied.

(b) The BLM will not process your
application if you have any:
(1) Outstanding unpaid debts owed to
the Federal Government. Outstanding
debts are those currently unpaid debts
owed to the Federal Government after
all administrative collection actions
have occurred, including any appeal
proceedings under applicable Federal
regulations and the Administrative
Procedure Act; or
(2) Trespass action pending against
you for any activity on BLM-administered lands (see § 2808.12), except those
to resolve the trespass with a right-ofway as authorized in this part, or a
lease or permit under the regulations
found at 43 CFR part 2920, but only
after outstanding unpaid debts are
paid.
(c) The BLM may require you to submit additional information necessary
to process the application. This information may include a detailed construction, operation, rehabilitation,
and environmental protection plan
(i.e., a POD), and any needed cultural
resource surveys or inventories for
threatened or endangered species. If
the BLM needs more information, the
BLM will identify this information in a
written deficiency notice asking you to
provide the additional information
within a specified period of time.
(1) For solar or wind energy development projects, and transmission lines
with a capacity of 100 kV or more, you
must commence any required resource
surveys or inventories within one year
of the request date, unless otherwise
specified by the BLM; or
(2) If you are unable to meet any of
the requirements of this section, you
must show good cause and submit a request for an alternative under § 2804.40.
(d) Customer service standard. The
BLM will process your completed application as follows:

Processing
category

Processing time

Conditions

1–4 ................

60 calendar days ..............................

5 ....................

As specified in the Master Agreement.
Over 60 calendar days .....................

If processing your application will take longer than 60 calendar days, the
BLM will notify you in writing of this fact prior to the 30th calendar day
and inform you of when you can expect a final decision on your application.
The BLM will process applications as specified in the Agreement.

6 ....................

The BLM will notify you in writing within the initial 60-day processing period of the estimated processing time.

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§ 2804.25

43 CFR Ch. II (10–1–20 Edition)

(e) In processing an application, the
BLM will:
(1) Hold public meetings if sufficient
public interest exists to warrant their
time and expense. The BLM will publish a notice in the FEDERAL REGISTER
and may use other notification methods, such as a newspaper of general circulation in the vicinity of the lands involved in the area affected by the potential right-of-way or the Internet, to
announce in advance any public hearings or meetings;
(2) If your application is for solar or
wind energy development:
(i) Hold a public meeting in the area
affected by the potential right-of-way;
(ii) Apply screening criteria to
prioritize processing applications with
lesser resource conflicts over applications with greater resource conflicts
and categorize screened applications
according to the criteria listed in
§ 2804.35; and
(iii) Evaluate the application based
on the information provided by the applicant and input from other parties,
such as Federal, State, and local government agencies, and tribes, as well as
comments received in preliminary application review meetings held under
§ 2804.12(b)(4) and the public meeting
held under paragraph (e)(2)(i) of this
section. The BLM will also evaluate
your application based on whether you
propose to site the development appropriately (e.g. outside of a designated
leasing area or exclusion area) and
whether you address known resource
values discussed in the preliminary application review meetings. Based on
these evaluations, the BLM will either
deny your application or continue
processing it.
(3) Determine whether a POD schedule submitted with your application
meets the development schedule or
other requirements described by the
BLM, such as in § 2804.12(b);
(4) Complete appropriate National
Environmental Policy Act (NEPA)
compliance for the application, as required by 43 CFR part 46 and 40 CFR
parts 1500 through 1508;
(5) Determine whether your proposed
use complies with applicable Federal
and State laws;
(6) If your application is for a road,
determine whether it is in the public

interest to require you to grant the
United States an equivalent authorization across lands that you own;
(7) Consult, as necessary, on a government-to-government
basis
with
tribes and other governmental entities;
and
(8) Take any other action necessary
to fully evaluate and decide whether to
approve or deny your application.
(f)(1) The BLM may segregate, if it
finds it necessary for the orderly administration of the public lands, lands
included in a right-of-way application
under this subpart for the generation
of electrical energy from wind or solar
sources. In addition, the BLM may also
segregate lands that it identifies for
potential rights-of-way for electricity
generation from wind or solar sources
when initiating a competitive process
for solar or wind development on particular lands. Upon segregation, such
lands would not be subject to appropriation under the public land laws, including location under the Mining Law
of 1872 (30 U.S.C. 22 et seq.), but would
remain open under the Mineral Leasing
Act of 1920 (30 U.S.C. 181 et seq.) or the
Materials Act of 1947 (30 U.S.C. 601 et
seq.). The BLM would effect a segregation by publishing a FEDERAL REGISTER
notice that includes a description of
the lands being segregated. The BLM
may effect segregation in this way for
both pending and new right-of-way applications.
(2) The effective date of segregation
is the date of publication of the notice
in the FEDERAL REGISTER. Consistent
with 43 CFR 2091–3.2, the segregation
terminates and the lands automatically open on the date that is the earliest of the following:
(i) When the BLM issues a decision
granting, granting with modifications,
or denying the application for a rightof-way;
(ii) Automatically at the end of the
segregation period stated in the FEDERAL REGISTER notice initiating the
segregation; or
(iii) Upon publication of a FEDERAL
REGISTER notice terminating the segregation and opening the lands.
(3) The segregation period may not
exceed 2 years from the date of publication in the FEDERAL REGISTER of the

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§ 2804.27

notice initiating the segregation, unless the State Director determines and
documents in writing, prior to the expiration of the segregation period, that
an extension is necessary for the orderly administration of the public
lands. If the State Director determines
an extension is necessary, the BLM
will extend the segregation for up to 2
years by publishing a notice in the
FEDERAL REGISTER, prior to the expiration of the initial segregation period.
Segregations under this part may only
be extended once and the total segregation period may not exceed 4 years.
[81 FR 92209, Dec. 19, 2016]

§ 2804.26 Under what circumstances
may BLM deny my application?
(a) BLM may deny your application
if:
(1) The proposed use is inconsistent
with the purpose for which BLM manages the public lands described in your
application;
(2) The proposed use would not be in
the public interest;
(3) You are not qualified to hold a
grant;
(4) Issuing the grant would be inconsistent with the Act, other laws, or
these or other regulations;
(5) You do not have or cannot demonstrate the technical or financial capability to construct the project or operate facilities within the right-of-way.
(i) Applicants must have or be able to
demonstrate technical and financial
capability to construct, operate, maintain, and terminate a project throughout the application process and authorization period. You can demonstrate
your financial and technical capability
to construct, operate, maintain, and
terminate a project by:
(A) Documenting any previous successful experience in construction, operation, and maintenance of similar facilities on either public or non-public
lands;
(B) Providing information on the
availability of sufficient capitalization
to carry out development, including
the preliminary study stage of the
project and the environmental review
and clearance process; or
(C) Providing written copies of conditional commitments of Federal and
other loan guarantees; confirmed

power purchase agreements; engineering, procurement, and construction
contracts; and supply contracts with
credible third-party vendors for the
manufacture or supply of key components for the project facilities.
(ii) Failure to demonstrate and sustain technical and financial capability
is grounds for denying an application
or terminating an authorization;
(6)
The
PODs
required
by
§§ 2804.25(e)(3) and 2804.12(a)(8) and (c)(1)
do not meet the development schedule
or other requirements in the POD template and the applicant is unable to
demonstrate why the POD should be
approved;
(7) Failure to commence necessary
surveys and studies, or plans for permit
processing as required by § 2804.25(c); or
(8) The BLM’s evaluation of your
solar or wind application made under
§ 2804.25(e)(2)(iii) provides a basis for a
denial.
(b) If BLM denies your application,
you may appeal this decision under
§ 2801.10 of this part.
(c) If you are unable to meet any of
the requirements in this section you
may request an alternative from the
BLM (see § 2804.40).
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92211, Dec. 19, 2016]

§ 2804.27 What fees must I pay if BLM
denies my application or if I withdraw my application?
If the BLM denies your application or
you withdraw it, you must still pay
any application filing fees under
§ 2804.12(b)(2), and any processing fee
set forth at § 2804.14, unless you have a
Processing Category 5 or 6 application.
Then, the following conditions apply:
(a) If BLM denies your Processing
Category 5 or 6 application, you are liable for all reasonable costs that the
United States incurred in processing it.
The money you have not paid is due
within 30 calendar days after receiving
a bill for the amount due.
(b) You may withdraw your application in writing before BLM issues a
grant. If you do so, you are liable for
all reasonable processing costs the
United States has incurred up to the
time you withdraw the application and
for the reasonable costs of terminating
your application. Any money you have

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§ 2804.28

43 CFR Ch. II (10–1–20 Edition)

not paid is due within 30 calendar days
after receiving a bill for the amount
due. Any money you paid that is not
used to cover costs the United States
incurred as a result of your application
will be refunded to you.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92211, Dec. 19, 2016]

§ 2804.28 What processing fees must I
pay for a BLM grant application associated with Federal Energy Regulatory Commission (FERC) licenses
or re-license applications under
part I of the Federal Power Act
(FPA)?
(a) You must reimburse BLM for the
costs which the United States incurs in
processing your grant application associated with a FERC project, other than
those described at § 2801.6(b)(7) of this
part. BLM also requires reimbursement
for processing a grant application associated with a FERC project licensed before October 24, 1992, that involves the
use of additional public lands outside
the original area reserved under section 24 of the FPA.
(b) BLM will determine the amount
you must pay by using the processing
fee categories described at § 2804.14 of
this subpart and bill you for the costs.
FERC will address other costs associated with processing a FERC license or
relicense (see 18 CFR chapter I).
§ 2804.29 What activities may I conduct on the lands covered by the
proposed right-of-way while BLM is
processing my application?
(a) You may conduct casual use activities on the BLM lands covered by
the application, as may any other
member of the public. BLM does not require a grant for casual use on BLM
lands.
(b) For any activities on BLM lands
that are not casual use, you must obtain prior BLM approval.
§ 2804.30 What is the competitive process for solar or wind energy development for lands outside of designated leasing areas?
(a) Available land. The BLM may offer
through a competitive process any land
not inside a designated leasing area
and open to right-of-way applications
under § 2802.10.

(b) Variety of competitive procedures
available. The BLM may use any type
of competitive process or procedure to
conduct its competitive offer and any
method, including the use of the Internet, to conduct the actual auction or
competitive bid procedure. Possible bid
procedures could include, but are not
limited to: Sealed bidding, oral auctions, modified competitive bidding,
electronic bidding, and any combination thereof.
(c) Competitive offer. The BLM may
identify a parcel for competitive offer
if competition exists or may include
land in a competitive offer on its own
initiative.
(d) Notice of competitive offer. The
BLM will publish a notice in the FEDERAL REGISTER at least 30 days prior to
the competitive offer and may use
other notification methods, such as a
newspaper of general circulation in the
area affected by the potential right-ofway or the Internet. The notice would
explain that the successful bidder
would become the preferred applicant
(see paragraph (g) of this section) and
may then apply for a grant. The FEDERAL REGISTER and other notices must
also include:
(1) The date, time, and location, if
any, of the competitive offer;
(2) The legal land description of the
parcel to be offered;
(3) The bidding methodology and procedures to be used in conducting the
competitive offer, which may include
any of the competitive procedures
identified in § 2804.30(b);
(4) The minimum bid required (see
§ 2804.30(e)(2));
(5) The qualification requirements
for potential bidders (see § 2803.10); and
(6) The requirements for the successful bidder to submit a schedule for the
submission of a POD for the lands involved in the competitive offer (see
§ 2804.12(c)(1)).
(e) Bidding—(1) Bid submissions. The
BLM will accept your bid only if it includes payment for the minimum bid
and at least 20 percent of the bonus bid.
(2) Minimum bid. The minimum bid is
not prorated among all bidders, but
paid entirely by the successful bidder.
The minimum bid consists of:
(i) The administrative costs incurred
by the BLM and other Federal agencies

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§ 2804.31

in preparing for and conducting the
competitive offer, including required
environmental reviews; and
(ii) An amount determined by the authorizing officer and disclosed in the
notice of competitive offer. This
amount will be based on known or potential values of the parcel. In setting
this amount, the BLM will consider
factors that include, but are not limited to, the acreage rent and megawatt
capacity fee.
(3) Bonus bid. The bonus bid consists
of any dollar amount that a bidder
wishes to bid in addition to the minimum bid.
(4) If you are not the successful bidder, as defined in paragraph (f) of this
section, the BLM will refund your bid
and any application filing fees, less the
reasonable costs incurred by the
United States in connection with your
application, under § 2804.12(c)(2).
(f) Successful bidder. The successful
bidder is determined by the highest
total bid. If you are the successful bidder, you become the preferred applicant only if, within 15 calendar days
after the day of the offer, you submit
the balance of the bonus bid to the
BLM office conducting the competitive
offer. You must make payments by personal check, cashier’s check, certified
check, bank draft, money order, or by
other means deemed acceptable by the
BLM, payable to the ‘‘Department of
the Interior—Bureau of Land Management.’’
(g) Preferred applicant. The preferred
applicant may apply for an energy
project-area testing grant, an energy
site-specific testing grant, or a solar or
wind energy development grant for the
parcel identified in the offer. Grant approval is not guaranteed by winning
the subject bid and is solely at the
BLM’s discretion. The BLM will not accept applications on lands where a preferred applicant has been identified,
unless allowed by the preferred applicant.
(h) Reservations. (1) The BLM may reject bids regardless of the amount offered. If the BLM rejects your bid
under this provision, you will be notified in writing and such notice will include the reasons for the rejection and
any refunds to which you are entitled.

(2) The BLM may make the next
highest bidder the preferred applicant
if the first successful bidder fails to
satisfy the requirements under paragraph (f) of this section.
(3) If the BLM is unable to determine
the successful bidder, such as in the
case of a tie, the BLM may re-offer the
lands competitively to the tied bidders,
or to all bidders.
(4) If lands offered under this section
receive no bids the BLM may:
(i) Re-offer the lands through the
competitive process under this section;
or
(ii) Make the lands available through
the non-competitive application process found in subparts 2803, 2804, and 2805
of this part, if the BLM determines
that doing so is in the public interest.
[81 FR 92211, Dec. 19, 2016]

§ 2804.31 How will the BLM call for
site testing for solar and wind energy?
(a) Call for site testing. The BLM may,
at its own discretion, initiate a call for
site testing. The BLM will publish this
call for site testing in the FEDERAL
REGISTER and may also use other notification methods, such as a newspaper
of general circulation in the area affected by the potential right-of-way, or
the Internet. The FEDERAL REGISTER
and any other notices will include:
(1) The date, time, and location that
site testing applications identified
under § 2801.9(d)(1) of this part may be
submitted;
(2) The date by which applicants will
be notified of the BLM’s decision on
timely submitted site testing applications;
(3) The legal land description of the
area for which site testing applications
are being requested; and
(4) The qualification requirements
for applicants (see § 2803.10).
(b) You may request that the BLM
hold a call for site testing for certain
public lands. The BLM may proceed
with a call for site testing at its own
discretion.
(c) The BLM may identify lands surrounding the site testing as designated
leasing areas under § 2802.11. If a designated leasing area is established, a
competitive offer for a development

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§ 2804.35

43 CFR Ch. II (10–1–20 Edition)

lease under subpart 2809 may be held at
the discretion of the BLM.
[81 FR 92212, Dec. 19, 2016]

§ 2804.35 How will the BLM prioritize
my solar or wind energy application?
The BLM will prioritize your application by placing it into one of three categories and may re-categorize your application based on new information received through surveys, public meetings, or other data collection, or after
any changes to the application. The
BLM will generally prioritize the processing of leases awarded under subpart
2809 before applications submitted
under subpart 2804. For applications
submitted under subpart 2804, the BLM
will categorize your application based
on the following screening criteria.
(a) High-priority applications are
given processing priority over mediumand low-priority applications and may
include lands that meet the following
criteria:
(1) Lands specifically identified as
appropriate for solar or wind energy
development, other than designated
leasing areas;
(2) Previously disturbed sites or areas
adjacent to previously disturbed or developed sites;
(3) Lands currently designated as
Visual Resource Management Class IV;
or
(4) Lands identified as suitable for
disposal in BLM land use plans.
(b) Medium-priority applications are
given priority over low-priority applications and may include lands that
meet the following criteria:
(1) BLM special management areas
that provide for limited development,
including recreation sites and facilities;
(2) Areas where a project may adversely affect conservation lands, including lands with wilderness characteristics that have been identified in an
updated wilderness characteristics inventory;
(3) Right-of-way avoidance areas;
(4) Areas where project development
may adversely affect resources and
properties listed nationally such as the
National Register of Historic Places,
National Natural Landmarks, or National Historic Landmarks;

(5) Sensitive habitat areas, including
important species use areas, riparian
areas, or areas of importance for Federal or State sensitive species;
(6) Lands currently designated as
Visual Resource Management Class III;
(7) Department of Defense operating
areas with land use or operational mission conflicts; or
(8) Projects with proposed groundwater uses within groundwater basins
that have been allocated by State
water resource agencies.
(c) Low-priority applications may
not be feasible to authorize. These applications may include lands that meet
the following criteria:
(1) Lands near or adjacent to lands
designated by Congress, the President,
or the Secretary for the protection of
sensitive viewsheds, resources, and values (e.g., units of the National Park
System, Fish and Wildlife Service Refuge System, some National Forest System units, and the BLM National
Landscape
Conservation
System),
which may be adversely affected by development;
(2) Lands near or adjacent to Wild,
Scenic, and Recreational Rivers and
river segments determined suitable for
Wild or Scenic River status, if project
development may have significant adverse effects on sensitive viewsheds, resources, and values;
(3) Designated critical habitat for
federally threatened or endangered species, if project development may result
in the destruction or adverse modification of that critical habitat;
(4) Lands currently designated as
Visual Resource Management Class I or
Class II;
(5) Right-of-way exclusion areas; or
(6) Lands currently designated as no
surface occupancy for oil and gas development in BLM land use plans.
[81 FR 92212, Dec. 19, 2016]

§ 2804.40 Alternative requirements.
If you are unable to meet any of the
requirements in this subpart you may
request approval for an alternative requirement from the BLM. Any such request is not approved until you receive
BLM approval in writing. Your request
to the BLM must:
(a) Show good cause for your inability to meet a requirement;

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Bureau of Land Management, Interior

§ 2805.11

(b) Suggest an alternative requirement and explain why that requirement is appropriate; and
(c) Be received in writing by the BLM
in a timely manner, before the deadline
to meet a particular requirement has
passed.
[81 FR 92212, Dec. 19, 2016]

Subpart 2805—Terms and
Conditions of Grants
§ 2805.10 How will I know whether the
BLM has approved or denied my
application or if my bid for a solar
or wind energy development grant
or lease is successful or unsuccessful?
(a) The BLM will send you a written
response when it has made a decision
on your application or if you are the
successful bidder for a solar or wind energy development grant or lease. If we
approve your application, we will send
you an unsigned grant for your review
and signature. If you are the successful
bidder for a solar or wind energy lease
inside a designated leasing area under
§ 2809.15, we may send you an unsigned
lease for your review and signature. If
your bid is unsuccessful, it will be refunded under § 2804.30(e)(4) or § 2809.14(d)
and you will receive written notice
from us.
(b) Your unsigned grant or lease document:
(1) Will include any terms, conditions, and stipulations that we determine to be in the public interest, such
as modifying your proposed use or
changing the route or location of the
facilities;
(2) May include terms that prevent
your use of the right-of-way until you
have an approved Plan of Development
(POD) and BLM has issued a Notice to
Proceed; and
(3) Will impose a specific term for the
grant or lease. Each grant or lease that
we issue for 20 or more years will contain a provision requiring periodic review at the end of the twentieth year
and subsequently at 10-year intervals.
We may change the terms and conditions of the grant or lease, including
leases issued under subpart 2809, as a
result of these reviews in accordance
with § 2805.15(e).

(c) If you agree with the terms and
conditions of the unsigned grant, you
should sign and return it to BLM with
any payment required under § 2805.16 of
this subpart. BLM will sign the grant
and return it to you with a final decision issuing the grant if the regulations in this part, including § 2804.26,
remain satisfied. You may appeal this
decision under § 2801.10 of this part.
(d) If BLM denies your application,
we will send you a written decision
that will:
(1) State the reasons for the denial
(see § 2804.26 of this part);
(2) Identify any processing costs you
must pay (see § 2804.14 of this part); and
(3) Notify you of your right to appeal
this decision under § 2801.10 of this part.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92212, Dec. 19, 2016]

§ 2805.11

What does a grant contain?

The grant states what your rights are
on the lands subject to the grant and
contains information about:
(a) What lands you can use or occupy.
The lands may or may not correspond
to those for which you applied. BLM
will limit the grant to those lands
which BLM determines:
(1) You will occupy with authorized
facilities;
(2) Are necessary for constructing,
operating, maintaining, and terminating the authorized facilities;
(3) Are necessary to protect the public health and safety;
(4) Will not unnecessarily damage the
environment; and
(5) Will not result in unnecessary or
undue degradation.
(b) How long you can use the right-ofway. Each grant will state the length
of time that you are authorized to use
the right-of-way.
(1) BLM will consider the following
factors in establishing a reasonable
term:
(i) The public purpose served;
(ii) Cost and useful life of the facility;
(iii) Time limitations imposed by licenses or permits required by other
Federal agencies and state, tribal, or
local governments; and
(iv) The time necessary to accomplish the purpose of the grant.

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§ 2805.12

43 CFR Ch. II (10–1–20 Edition)

(2) Specific terms for solar and wind
energy grants and leases are as follows:
(i) For an energy site-specific testing
grant, the term is 3 years or less, without the option of renewal;
(ii) For an energy project-area testing grant, the initial term is 3 years or
less, with the option to renew for one
additional 3-year period when the renewal application is also accompanied
by a solar or wind energy development
application and a POD as required by
§ 2804.25(e)(3);
(iii) For a short-term grant for all
other associated actions not specifically included in paragraphs (b)(2)(i)
and (ii) of this section, such as
geotechnical testing and other temporary land disturbing activities, the
term is 3 years or less;
(iv) For solar and wind energy development grants, the term is up to 30
years (plus the initial partial year of
issuance) with adjustable terms and
conditions. The grantee may submit an
application
for
renewal
under
§ 2805.14(g); and
(v) For solar and wind energy development leases located inside designated leasing areas, the term is fixed
for 30 years (plus the initial partial
year of issuance). The lessee may submit an application for renewal under
§ 2805.14(g).
(3) All grants and leases, except those
issued for a term of 3 years or less and
those issued in perpetuity, will expire
on December 31 of the final year of the
grant or lease. For grants and leases
with terms greater than 3 years, the
actual term includes the number of full
years specified, plus the initial partial
year, if any.
(c) How you can use the right-of-way.
You may only use the right-of-way for
the specific use the grant authorizes.
[70 FR 21058, Apr. 22, 2005, as amended at 73
FR 65071, Oct. 31, 2008; 81 FR 92213, Dec. 19,
2016]

§ 2805.12 What terms and conditions
must I comply with?
(a) By accepting a grant or lease, you
agree to comply with and be bound by
the following terms and conditions.
During construction, operation, maintenance, and termination of the project
you must:

(1) To the extent practicable, comply
with all existing and subsequently enacted, issued, or amended Federal laws
and regulations and State laws and
regulations applicable to the authorized use;
(2) Rebuild and repair roads, fences,
and established trails destroyed or
damaged by the project;
(3) Build and maintain suitable crossings for existing roads and significant
trails that intersect the project;
(4) Do everything reasonable to prevent and suppress wildfires on or in the
immediate vicinity of the right-of-way
area;
(5) Not discriminate against any employee or applicant for employment
during any stage of the project because
of race, creed, color, sex, sexual orientation, or national origin. You must
also require subcontractors to not discriminate;
(6) Pay monitoring fees and rent described in § 2805.16 and subpart 2806;
(7) Assume full liability if third parties are injured or damages occur to
property on or near the right-of-way
(see § 2807.12);
(8) Comply with project-specific
terms, conditions, and stipulations, including requirements to:
(i) Restore, revegetate, and curtail
erosion or conduct any other rehabilitation measure the BLM determines
necessary;
(ii) Ensure that activities in connection with the grant comply with air
and water quality standards or related
facility siting standards contained in
applicable Federal or State law or regulations;
(iii) Control or prevent damage to:
(A) Scenic, aesthetic, cultural, and
environmental values, including fish
and wildlife habitat;
(B) Public and private property; and
(C) Public health and safety;
(iv) Provide for compensatory mitigation for residual impacts associated
with the right-of-way;
(v) Protect the interests of individuals living in the general area who rely
on the area for subsistence uses as that
term is used in Title VIII of Alaska National Interest Lands Conservation Act
(ANILCA) (16 U.S.C. 3111 et seq.);

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§ 2805.12

(vi) Ensure that you construct, operate, maintain, and terminate the facilities on the lands in the right-of-way in
a manner consistent with the grant or
lease, including the approved POD, if
one was required;
(vii) When the State standards are
more stringent than Federal standards,
comply with State standards for public
health and safety, environmental protection, and siting, constructing, operating, and maintaining any facilities
and improvements on the right-of-way;
and
(viii) Grant the BLM an equivalent
authorization for an access road across
your land if the BLM determines that a
reciprocal authorization is needed in
the public interest and the authorization the BLM issues to you is also for
road access;
(9) Immediately notify all Federal,
State, tribal, and local agencies of any
release or discharge of hazardous material reportable to such entity under applicable law. You must also notify the
BLM at the same time and send the
BLM a copy of any written notification
you prepared;
(10) Not dispose of or store hazardous
material on your right-of-way, except
as provided by the terms, conditions,
and stipulations of your grant;
(11) Certify your compliance with all
requirements of the Emergency Planning and Community Right-to-Know
Act of 1986, (42 U.S.C. 11001 et seq.),
when you receive, assign, renew,
amend, or terminate your grant;
(12) Control and remove any release
or discharge of hazardous material on
or near the right-of-way arising in connection with your use and occupancy of
the right-of-way, whether or not the
release or discharge is authorized
under the grant. You must also remediate and restore lands and resources
affected by the release or discharge to
the BLM’s satisfaction and to the satisfaction of any other Federal, State,
tribal, or local agency having jurisdiction over the land, resource, or hazardous material;
(13) Comply with all liability and indemnification provisions and stipulations in the grant;
(14) As the BLM directs, provide diagrams or maps showing the location of
any constructed facility;

(15) As the BLM directs, provide, or
give access to, any pertinent environmental,
technical,
and
financial
records, reports, and other information, such as Power Purchase and
Interconnection Agreements or the
production and sale data for electricity
generated from the approved facilities
on public lands. Failure to comply with
such requirements may, at the discretion of the BLM, result in suspension
or termination of the right-of-way authorization. The BLM may use this and
similar information for the purpose of
monitoring your authorization and for
periodic evaluation of financial obligations under the authorization, as appropriate. Any records the BLM obtains will be made available to the public subject to all applicable legal requirements and limitations for inspection and duplication under the Freedom of Information Act. Any information marked confidential or proprietary will be kept confidential to the
extent allowed by law; and
(16) Comply with all other stipulations that the BLM may require.
(b) You must comply with the bonding requirements under § 2805.20. The
BLM will not issue a Notice to Proceed
or give written approval to proceed
with ground disturbing activities until
you comply with this requirement.
(c) By accepting a grant or lease for
solar or wind energy development, you
also agree to comply with and be bound
by the following terms and conditions.
You must:
(1) Not begin any ground disturbing
activities until the BLM issues a Notice to Proceed (see § 2807.10) or written
approval to proceed with ground disturbing activities;
(2) Complete construction within the
timeframes in the approved POD, but
no later than 24 months after the start
of construction, unless the project has
been approved for staged development,
or as otherwise authorized by the BLM;
(3) If an approved POD provides for
staged development, unless otherwise
approved by the BLM:
(i) Begin construction of the initial
phase of development within 12 months
after issuance of the Notice to Proceed,
but no later than 24 months after the
effective date of the right-of-way authorization;

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§ 2805.12

43 CFR Ch. II (10–1–20 Edition)

(ii) Begin construction of each stage
of development (following the first)
within 3 years of the start of construction of the previous stage of development, and complete construction of
that stage no later than 24 months
after the start of construction of that
stage, unless otherwise authorized by
the BLM; and
(iii) Have no more than 3 development stages, unless otherwise authorized by the BLM;
(4) Maintain all onsite electrical generation equipment and facilities in accordance with the design standards in
the approved POD;
(5) Repair and place into service, or
remove from the site, damaged or
abandoned facilities that have been inoperative for any continuous period of
3 months and that present an unnecessary hazard to the public lands. You
must take appropriate remedial action
within 30 days after receipt of a written noncompliance notice, unless you
have been provided an extension of
time by the BLM. Alternatively, you
must show good cause for any delays in
repairs, use, or removal; estimate when
corrective action will be completed;
provide evidence of diligent operation
of the facilities; and submit a written
request for an extension of the 30-day
deadline. If you do not comply with
this provision, the BLM may suspend
or terminate the authorization under
§§ 2807.17 through 2807.19; and
(6) Comply with the diligent development provisions of the authorization or
the BLM may suspend or terminate
your grant or lease under §§ 2807.17
through 2807.19. Before suspending or
terminating the authorization, the
BLM will send you a notice that gives
you a reasonable opportunity to correct any noncompliance or to start or
resume use of the right-of-way (see
§ 2807.18). In response to this notice,
you must:
(i) Provide reasonable justification
for any delays in construction (for example, delays in equipment delivery,
legal challenges, and acts of God);
(ii) Provide the anticipated date of
completion of construction and evidence of progress toward the start or
resumption of construction; and
(iii) Submit a written request under
paragraph (e) of this section for exten-

sion of the timelines in the approved
POD. If you do not comply with the requirements of paragraph (c)(7) of this
section, the BLM may deny your request for an extension of the timelines
in the approved POD.
(7) In addition to the RCE requirements of § 2805.20(a)(5) for a grant, the
bond secured for a grant or lease must
cover the estimated costs of cultural
resource and Indian cultural resource
identification, protection, and mitigation for project impacts.
(d) For energy site or project testing
grants:
(1) You must install all monitoring
facilities within 12 months after the effective date of the grant or other authorization. If monitoring facilities
under a site testing and monitoring
right-of-way authorization have not
been installed within 12 months after
the effective date of the authorization
or consistent with the timeframe of the
approved POD, you must request an extension pursuant to paragraph (e) of
this section;
(2) You must maintain all onsite
equipment and facilities in accordance
with the approved design standards;
(3) You must repair and place into
service, or remove from the site, damaged or abandoned facilities that have
been inoperative for any continuous period of 3 months and that present an
unnecessary hazard to the public lands;
and
(4) If you do not comply with the diligent development provisions of either
the site testing and monitoring authorization or the project testing and monitoring authorization, the BLM may
terminate your authorization under
§ 2807.17.
(e) Notification of noncompliance and
request for alternative requirements. (1)
As soon as you anticipate that you will
not meet any stipulation, term, or condition of the approved right-of-way
grant or lease, or in the event of your
noncompliance with any such stipulation, term, or condition, you must notify the BLM in writing and show good
cause for the noncompliance, including
an explanation of the reasons for the
failure.
(2) You may also request that the
BLM consider alternative stipulations,
terms, or conditions. Any request for

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§ 2805.15

an 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.
[81 FR 92213, Dec. 19, 2016]

§ 2805.13 When is a grant effective?
A grant is effective after both you
and BLM sign it. You must accept its
terms and conditions in writing and
pay any necessary rent and monitoring
fees as set forth in subpart 2806 of this
part and § 2805.16 of this subpart. Your
written acceptance constitutes an
agreement between you and BLM that
your right to use the public lands, as
specified in the grant, is subject to the
terms and conditions of the grant and
applicable laws and regulations.
§ 2805.14 What rights does a grant convey?
The grant conveys to you only those
rights which it expressly contains.
BLM issues it subject to the valid existing rights of others, including the
United States. Rights which the grant
conveys to you include the right to:
(a) Use the described lands to construct, operate, maintain, and terminate facilities within the right-of-way
for authorized purposes under the
terms and conditions of the grant;
(b) If your grant specifically authorizes, allow other parties to use your facility for the purposes specified in your
grant and you may charge for such use.
If your grant does not specifically authorize it, you may not let anyone else
use your facility and you may not
charge for its use unless BLM authorizes or requires it in writing;
(c) Allow others to use the land as
your agent in the exercise of the rights
that the grant specifies;
(d) Do minor trimming, pruning, and
removing of vegetation to maintain the
right-of-way or facility;
(e) Use common varieties of stone
and soil which are necessarily removed
during construction of the project,
without additional BLM authorization
or payment, in constructing the

project within the authorized right-ofway;
(f) Assign the grant to another, provided that you obtain the BLM’s prior
written approval, unless your grant
specifically states that that such approval is unnecessary; and
(g) Apply to renew your solar or wind
energy development grant or lease,
under § 2807.22; and
(h) Apply to renew your energy
project-area testing grant for one additional term of 3 years or less when the
renewal application also includes an
energy development application under
§ 2801.9(d)(2).
[70 FR 21058, Apr. 22, 2005, as amended at 73
FR 65071, Oct. 31, 2008; 81 FR 92215, Dec. 19,
2016]

§ 2805.15 What rights does the United
States retain?
The United States retains and may
exercise any rights the grant does not
expressly convey to you. These include
BLM’s right to:
(a) Access the lands covered by the
grant at any time and enter any facility you construct on the right-of-way.
BLM will give you reasonable notice
before it enters any facility on the
right-of-way;
(b) Require common use of your
right-of-way, including facilities (see
§ 2805.14(b)), subsurface, and air space,
and authorize use of the right-of-way
for compatible uses.You may not
charge for the use of the lands made
subject to such additional right-of-way
grants;
(c) Retain ownership of the resources
of the land, including timber and vegetative or mineral materials and any
other living or non-living resources.
You have no right to use these resources, except as noted in § 2805.14(e)
of this subpart;
(d) Determine whether or not your
grant is renewable; and
(e) Change the terms and conditions
of your grant as a result of changes in
legislation, regulation, or as otherwise
necessary to protect public health or
safety or the environment.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92215, Dec. 19, 2016]

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§ 2805.16

43 CFR Ch. II (10–1–20 Edition)

§ 2805.16 If I hold a grant, what monitoring fees must I pay?
(a) You must pay a fee to the BLM
for the reasonable costs the Federal
Government incurs in inspecting and
monitoring the construction, operation, maintenance, and termination of
the project and protection and rehabilitation of the public lands your grant
covers. Instead of paying the BLM a fee
for the reasonable costs incurred by
other Federal agencies in monitoring
your grant, you may pay the other
Federal agencies directly for such

costs. The BLM will annually adjust
the Category 1 through 4 monitoring
fees in the manner described at
§ 2804.14(b). The BLM will update Category 5 monitoring fees as specified in
the Master Agreement. Category 6
monitoring fees are addressed at
§ 2805.17(c). The BLM categorizes the
monitoring fees based on the estimated
number of work hours necessary to
monitor your grant. Category 1
through 4 monitoring fees are one-time
fees and are not refundable. The monitoring categories and work hours are
as follows:

MONITORING CATEGORIES
Federal work hours
involved

Monitoring category
(1) Inspecting and monitoring of new grants, assignments, renewals, and amendments to existing
grants.
(2) Inspecting and monitoring of new grants, assignments, renewals, and amendments to existing
grants.
(3) Inspecting and monitoring of new grants, assignments, renewals, and amendments to existing
grants.
(4) Inspecting and monitoring of new grants, assignments, renewals, and amendments to existing
grants.
(5) Master Agreements .............................................................................................................................
(6) Inspecting and monitoring of new grants, assignments, renewals, and amendments to existing
grants.

(b) The monitoring cost schedule is
available from any BLM State, district, or field office or by writing: U.S.
Department of the Interior, Bureau of
Land Management, 20 M Street SE.,
Room 2134LM, Washington, DC 20003.
The BLM also posts the current schedule at http://www.blm.gov.
[81 FR 92215, Dec. 19, 2016]

§ 2805.17 When do I pay monitoring
fees?
(a) Monitoring Categories 1 through 4.
Unless BLM otherwise directs, you
must pay monitoring fees when you
submit to BLM your written acceptance of the terms and conditions of the
grant.
(b) Monitoring Category 5. You must
pay monitoring fees as specified in the
Master Agreement. BLM will not issue
your grant until it receives the required payment.
(c) Monitoring Category 6. BLM may
periodically estimate the costs of monitoring your use of the grant. BLM will
include this fee in the costs associated
with processing fees described at

Estimated Federal work
hours are >1 ≤8.
Estimated Federal work
hours are >8 ≤24.
Estimated Federal work
hours are >24 ≤36.
Estimated Federal work
hours are >36 ≤50.
Varies.
Estimated Federal work
hours are >50.

§ 2804.14 of this part. If BLM has underestimated the monitoring costs, we
will notify you of the shortfall. If your
payments exceed the reasonable costs
that Federal employees incurred for
monitoring, BLM will either reimburse
you the difference, or adjust the next
billing to reflect the overpayment. Unless BLM gives you written authorization, you may not offset or deduct the
overpayment from your payments.
(d) Monitoring Categories 1–4 and 6. If
you disagree with the category BLM
has determined for your grant, you
may appeal the decision under § 2801.10
of this part.
§ 2805.20

Bonding requirements.

If you hold a grant or lease under
this part, you must comply with the
following bonding requirements:
(a) The BLM may require that you
obtain, or certify that you have obtained, a performance and reclamation
bond or other acceptable bond instrument to cover any losses, damages, or
injury to human health, the environment, or property in connection with

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§ 2805.20

your use and occupancy of the right-ofway, including costs associated with
terminating the grant, and to secure
all obligations imposed by the grant
and applicable laws and regulations. If
you plan to use hazardous materials in
the operation of your grant, you must
provide a bond that covers liability for
damages or injuries resulting from releases or discharges of hazardous materials. The BLM will periodically review
your bond for adequacy and may require a new bond, an increase or decrease in the value of an existing bond,
or other acceptable security at any
time during the term of the grant or
lease.
(1) The BLM must be listed as an additionally named insured on the bond
instrument if a State regulatory authority requires a bond to cover some
portion of environmental liabilities,
such as hazardous material damages or
releases, reclamation, or other requirements for the project. The bond must:
(i) Be redeemable by the BLM;
(ii) Be held or approved by a State
agency for the same reclamation requirements as specified by our right-ofway authorization; and
(iii) Provide the same or greater financial guarantee that we require for
the portion of environmental liabilities
covered by the State’s bond.
(2) Bond acceptance. The BLM authorized officer must review and approve
all bonds, including any State bonds,
prior to acceptance, and at the time of
any right-of-way assignment, amendment, or renewal.
(3) Bond amount. Unless you hold a
solar or wind energy lease under subpart 2809, the bond amount will be determined based on the preparation of a
RCE, which the BLM may require you
to prepare and submit. The estimate
must include our cost to administer a
reclamation contract and will be reviewed periodically for adequacy. The
BLM may also consider other factors,
such as salvage value, when determining the bond amount.
(4) You must post a bond on or before
the deadline that we give you.
(5) Bond components that must be
addressed when determining the RCE
amount include, but are not limited to:
(i) Environmental liabilities such as
use of hazardous materials waste and

hazardous substances, herbicide use,
the use of petroleum-based fluids, and
dust control or soil stabilization materials;
(ii) The decommissioning, removal,
and proper disposal, as appropriate, of
any improvements and facilities; and
(iii) Interim and final reclamation,
re-vegetation, recontouring, and soil
stabilization. This component must address the potential for flood events and
downstream sedimentation from the
site that may result in offsite impacts.
(6) You may ask us to accept a replacement performance and reclamation bond at any time after the approval of the initial bond. We will review the replacement bond for adequacy. A surety company is not released from obligations that accrued
while the surety bond was in effect unless the replacement bond covers those
obligations to our satisfaction.
(7) You must notify us that reclamation has occurred and you may request
that the BLM reevaluate your bond. If
we determine that you have completed
reclamation, we may release all or part
of your bond.
(8) If you hold a grant, you are still
liable under § 2807.12 if:
(i) We release all or part of your
bond;
(ii) The bond amount does not cover
the cost of reclamation; or
(iii) There is no bond in place;
(b) If you hold a grant for solar energy development outside of designated
leasing areas, you must provide a performance and reclamation bond (see
paragraph (a) of this section) prior to
the BLM issuing a Notice to Proceed
(see § 2805.12(c)(1)). We will determine
the bond amount based on the RCE (see
paragraph (a)(3) of this section) and it
must be no less than $10,000 per acre
that will be disturbed;
(c) If you hold a grant for wind energy development outside of designated
leasing areas, you must provide a performance and reclamation bond (see
paragraph (a) of this section) prior to
the BLM issuing a Notice to Proceed
(see § 2805.12(c)(1)). We will determine
the bond amount based on the RCE (see
paragraph (a)(3) of this section) and it
must be no less than $10,000 per authorized turbine less than 1 MW in nameplate capacity or $20,000 per authorized

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§ 2806.10

43 CFR Ch. II (10–1–20 Edition)

turbine equal to or greater than 1 MW
in nameplate capacity; and
(d) For short-term right-of-way
grants for energy site or project-area
testing, the bond amount must be no
less than $2,000 per authorized meteorological tower or instrumentation facility location and must be provided before the written approval to proceed
with ground disturbing activities (see
§ 2805.12(c)(1)).
[81 FR 92215, Dec. 19, 2016]

Subpart 2806—Annual Rents and
Payments
GENERAL PROVISIONS
§ 2806.10 What rent must I pay for my
grant?
(a) You must pay in advance a rent
BLM establishes based on sound business management principles and, as far
as practical and feasible, using comparable commercial practices. Rent
does not include processing or monitoring fees and rent is not offset by
such fees. BLM may exempt, waive, or
reduce rent for a grant under §§ 2806.14
and 2806.15 of this subpart.
(b) If BLM issued your grant on or
before October 21, 1976, under then existing statutory authority, upon request, BLM will conduct an informal
hearing before a proposed rent increase
becomes effective. This applies to rent
increases due to a BLM-initiated
change in the rent or from initially
being put on a rent schedule. You are
not entitled to a hearing on annual adjustments once you are on a rent
schedule.
§ 2806.11 How will BLM charge me
rent?
(a) BLM will charge rent beginning
on the first day of the month following
the effective date of the grant through
the last day of the month when the
grant terminates. Example: If a grant
became effective on January 10 and terminated on September 16, the rental
period would be February 1 through
September 30, or 8 months.
(b) BLM will set or adjust the annual
billing periods to coincide with the calendar year by prorating the rent based
on 12 months.

(c) If you disagree with the rent that
BLM charges, you may appeal the decision under § 2801.10 of this part.
§ 2806.12 When and where do I pay
rent?
(a) You must pay rent for the initial
rental period before the BLM issues
you a grant or lease.
(1) If your non-linear grant or lease is
effective on:
(i) January 1 through September 30
and qualifies for annual payments,
your initial rent bill is pro-rated to include only the remaining full months
in the initial year; or
(ii) October 1 through December 31
and qualifies for annual payments,
your initial rent bill is pro-rated to include the remaining full months in the
initial year plus the next full year.
(2) If your non-linear grant allows for
multi-year payments, such as a short
term grant issued for energy site-specific testing, you may request that
your initial rent bill be for the full
term of the grant instead of the initial
rent bill periods provided under paragraph (a)(1)(i) or (ii) of this section.
(b) You must make all rental payments for linear rights-of-way according to the payment plan described in
§ 2806.24.
(c) After the first rental payment, all
rent is due on January 1 of the first
year of each succeeding rental period
for the term of your grant.
(d) You must make all rental payments as instructed by us or as provided for by Secretarial order or legislative authority.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92216, Dec. 19, 2016]

§ 2806.13 What happens if I do not pay
rents and fees or if I pay the rents
or fees late?
(a) If the BLM does not receive the
rent or fee payment required in subpart
2806 within 15 calendar days after the
payment was due under § 2806.12, we
will charge you a late payment fee of
$25 or 10 percent of the amount you
owe, whichever is greater, per authorization.
(b) If BLM does not receive your rent
payment and late payment fee within
30 calendar days after rent was due,

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Bureau of Land Management, Interior

§ 2806.15

BLM may collect other administrative
fees provided by statute.
(c) If BLM does not receive your rent,
late payment fee, and any administrative fees within 90 calendar days after
the rent was due, BLM may terminate
your grant under § 2807.17 of this part
and you may not remove any facility
or equipment without BLM’s written
permission (see § 2807.19 of this part).
The rent due, late payment fees, and
any administrative fees remain a debt
that you owe to the United States.
(d) If you pay the rent, late payment
fee, and any administrative fees after
BLM has terminated the grant, BLM
does not automatically reinstate the
grant. You must file a new application
with BLM. BLM will consider the history of your failure to timely pay rent
in deciding whether to issue you a new
grant.
(e) Subject to applicable laws and
regulations, we will retroactively bill
for uncollected or under-collected rent,
fees, and late payments, if:
(1) A clerical error is identified;
(2) An adjustment to rental schedules
is not applied; or
(3) An omission or error in complying
with the terms and conditions of the
authorized right-of-way is identified.
(f) You may appeal any adverse decision BLM takes against your grant
under § 2801.10 of this part.
(g) We will not approve any further
activities associated with your rightof-way until we receive any outstanding payments that are due.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92216, Dec. 19, 2016]

§ 2806.14 Under what circumstances
am I exempt from paying rent?
(a)You do not have to pay rent for
your use if:
(1) BLM issues the grant under a
statute which does not allow BLM to
charge rent;
(2) You are a Federal, state, or local
government or its agent or instrumentality, unless you are:
(i) Using the facility, system, space,
or any part of the right-of-way area for
commercial purposes; or
(ii) A municipal utility or cooperative whose principal source of revenue
is customer charges;

(3) You have been granted an exemption under a statute providing for such;
or
(4) Electric or telephone facilities
constructed on the right-of-way were
financed in whole or in part, or eligible
for financing, under the Rural Electrification Act of 1936, as amended
(REA) (7 U.S.C. 901 et seq.), or are extensions of such facilities. You do not
need to have sought financing from the
Rural Utilities Service to qualify for
this exemption. BLM may require you
to document the facility’s eligibility
for REA financing. For communication
site facilities, adding or including noneligible facilities as, for example, by
tenants or customers, on the right-ofway will subject the holder to rent in
accordance with §§ 2806.30 through
2806.44 of this subpart.
(b) The exemptions in this section do
not apply if you are in trespass.
[70 FR 21058, Apr. 22, 2005, as amended at 73
FR 65071, Oct. 31, 2008]

§ 2806.15 Under what circumstances
may BLM waive or reduce my rent?
(a) BLM may waive or reduce your
rent payment, even to zero in appropriate circumstances. BLM may require you to submit information to
support a finding that your grant
qualifies for a waiver or a reduction of
rent.
(b) BLM may waive or reduce your
rent if you show BLM that:
(1) You are a non-profit organization,
corporation, or association which is
not controlled by, or is not a subsidiary of, a profit making corporation
or business enterprise and the facility
or project will provide a benefit or special service to the general public or to
a program of the Secretary;
(2) You provide without charge, or at
reduced rates, a valuable benefit to the
public at large or to the programs of
the Secretary of the Interior;
(3) You hold a valid Federal authorization in connection with your grant
and the United States is already receiving compensation for this authorization. This paragraph does not apply
to oil and gas leases issued under part
3100 of this chapter; or
(4) Your grant involves a cost share
road or a reciprocal right-of-way agreement not subject to subpart 2812 of this

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§ 2806.16

43 CFR Ch. II (10–1–20 Edition)

chapter. In these cases, BLM will determine the rent based on the proportion of use.
(c) The BLM State Director may
waive or reduce your rent payment if
the BLM State Director determines
that paying the full rent will cause you
undue hardship and it is in the public
interest to waive or reduce your rent.
In your request for a waiver or rental
reduction you must include a suggested
alternative rental payment plan or
timeframe within which you anticipate
resuming full rental payments. BLM
may also require you to submit specific
financial and technical data or other
information that corrects or modifies
the statement of financial capability
required by § 2804.12(a)(5) of this part.
§ 2806.16 When must I make estimated
rent payments to BLM?
To expedite the processing of your
grant application, BLM may estimate
rent payments and collect that amount
before it issues the grant. The amount
may change once BLM determines the
actual rent of the right-of-way. BLM
will credit any rental overpayment,
and you are liable for any underpayment. This section does not apply
to rent payments made under a rent
schedule in this part.
LINEAR RIGHTS-OF-WAY
§ 2806.20 What is the rent for a linear
right-of-way grant?
(a) Except as described in § 2806.26 of
this chapter, the BLM will use the Per
Acre Rent Schedule (see paragraph (c)
of this section) to calculate rent for all
linear right-of-way authorizations, regardless of the granting authority
(FLPMA, MLA, and their predecessors). Counties (or other geographical areas) are assigned to an appropriate zone in accordance with
§ 2806.21. The BLM will adjust the per
acre rent values in the schedule annually in accordance with § 2806.22(a), and
it will revise the schedule at the end of
each 10-year period in accordance with
§ 2806.22(b).
(b) The annual per acre rent for all
types of linear right-of-way facilities is
the product of 4 factors: The per acre
zone value multiplied by the encumbrance factor multiplied by the rate of

return multiplied by the annual adjustment factor (see § 2806.22(a)).
(c) You may obtain a copy of the current Per Acre Rent Schedule from any
BLM State, district, or field office or
by writing: U.S. Department of the Interior, Bureau of Land Management, 20
M Street SE., Room 2134LM, Washington, DC 20003. We also post the current
rent
schedule
at
http://
www.blm.gov.
[73 FR 65071, Oct. 31, 2008, as amended at 81
FR 92216, Dec. 19, 2016]

§ 2806.21 When and how are counties
or other geographical areas assigned to a County Zone Number
and Per Acre Zone Value?
Counties (or other geographical
areas) are assigned to a County Zone
Number and Per Acre Zone Value based
upon 80 percent of their average per
acre land and building value published
in the Census of Agriculture (Census)
by the National Agricultural Statistics
Service (NASS). The initial assignment
of counties to the zones will cover
years 2006 through 2010 of the Per Acre
Rent Schedule and is based upon data
contained in the most recent NASS
Census (2002). Subsequent re-assignments of counties will occur every 5
years (in 2011 based upon 2007 NASS
Census data, in 2016 based upon 2012
NASS Census data, and so forth) following the publication of the NASS
Census.
[73 FR 65071, Oct. 31, 2008]

§ 2806.22 When and how does the Per
Acre Rent Schedule change?
(a) Each calendar year the BLM will
adjust the per acre rent values in
§ 2806.20 for all types of linear right-ofway facilities in each zone based on the
average annual change in the IPD–GDP
for the 10-year period immediately preceding the year that the NASS Census
data becomes available. For example,
the average annual change in the IPD–
GDP from 1994 to 2003 (the 10-year period immediately preceding the year
(2004) that the 2002 National Agricultural Statistics Service Census data became available) was 1.9 percent. This
annual adjustment factor is applied to
years 2006 through 2015 of the Per Acre
Rent Schedule. Likewise, the average
annual change in the IPD–GDP from

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Bureau of Land Management, Interior

§ 2806.24

2004 to 2013 (the 10-year period immediately preceding the year (2014) when
the 2012 NASS Census data will become
available) will be applied to years 2016
through 2025 of the Per Acre Rent
Schedule.
(b) The BLM will review the NASS
Census data from the 2012 NASS Census, and each subsequent 10-year period, and as appropriate, revise the
number of county zones and the per
acre zone values. Any revision must include 100 percent of the number of
counties and listed geographical areas
for all states and the Commonwealth of
Puerto Rico and must reasonably reflect the increases or decreases in the
average per acre land and building values contained in the NASS Census.
[73 FR 65072, Oct. 31, 2008, as amended at 81
FR 92216, Dec. 19, 2016]

§ 2806.23 How will the BLM calculate
my rent for linear rights-of-way the
Per Acre Rent Schedule covers?
(a) Except as provided by §§ 2806.25
and 2806.26, the BLM calculates your
rent by multiplying the rent per acre
for the appropriate county (or other
geographical area) zone from the current schedule by the number of acres
(as rounded up to the nearest tenth of
an acre) in the right-of-way area that
fall in each zone and multiplying the
result by the number of years in the
rental payment period (the length of
time for which the holder is paying
rent).
(b) If the BLM has not previously
used the rent schedule to calculate
your rent, we may do so after giving
you reasonable written notice.
[73 FR 65072, Oct. 31, 2008, as amended at 81
FR 92216, Dec. 19, 2016]

§ 2806.24 How must I make rental payments for a linear grant?
(a) Term grants. For linear grants, except those issued in perpetuity, you
must make either nonrefundable annual payments or a nonrefundable payment for more than 1 year, as follows:
(1) One-time payments. You may pay
in advance the total rent amount for
the entire term of the grant or any remaining years.
(2) Multiple payments. If you choose
not to make a one-time payment, you

must pay according to one of the following methods:
(i) Payments by individuals. If your annual rent is $100 or less, you must pay
at 10-year intervals, not to exceed the
term of the grant. If your annual rent
is greater than $100, you may pay annually or at 10-year intervals, not to exceed the term of the grant. For example, if you have a grant with a remaining term of 30 years, you may pay in
advance for 10 years, 20 years, or 30
years, but not any other multi-year period.
(ii) Payments by all others. If your annual rent is $500 or less, you must pay
rent at 10-year intervals, not to exceed
the term of the grant. If your annual
rent is greater than $500, you may pay
annually or at 10-year intervals, not to
exceed the term of the grant.
(b) Perpetual grants. For linear grants
issued in perpetuity (except as noted in
§§ 2806.25 and 2806.26), you must make
either nonrefundable annual payments
or a nonrefundable payment for more
than 1 year, as follows:
(1) Payments by individuals. If your
annual rent is $100 or less, you must
pay at 10-year intervals, not to exceed
30 years. If your annual rent is greater
than $100, you may pay annually or at
10-year intervals, not to exceed 30
years.
(2) Payments by all others. If your annual rent is $500 or less, you must pay
rent at 10-year intervals, not to exceed
30 years. If your annual rent is greater
than $500, you may pay annually or at
10-year intervals, not to exceed 30
years.
(c) Proration of payments. The BLM
prorates the first year rental amount
based on the number of months left in
the calendar year after the effective
date of the grant. If your grant requires, or you chose a 10-year payment
term, or multiples thereof, the initial
rent bill consists of the remaining partial year plus the next 10 years, or multiple thereof.
[73 FR 65072, Oct. 31, 2008, as amended at 81
FR 92216, Dec. 19, 2016]

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§ 2806.25

43 CFR Ch. II (10–1–20 Edition)

§ 2806.25 How may I make rental payments when land encumbered by
my perpetual linear grant (other
than an easement issued under
§ 2807.15(b)) is being transferred out
of Federal ownership?
(a) One-time payment option for existing perpetual grants. If you have a perpetual grant and the land your grant
encumbers is being transferred out of
Federal ownership, you may choose to
make a one-time rental payment. The
BLM will determine the one-time payment for a perpetual grant by dividing
the current annual rent for the subject
property by an overall capitalization
rate calculated from market data,
where the overall capitalization rate is
the difference between a market yield
rate and a percent annual rent increase
as described in the formula in paragraphs (a)(1), (2), and (3) of this section.
The formula for this calculation is:
One-time Rental Payment = Annual
Rent/ (Y¥CR), where:
(1) Annual Rent = Current Annual Rent
Applicable to the Subject Property from the
Per Acre Rent Schedule;
(2) Y = Yield Rate from the Per Acre Rent
Schedule (5.27 percent); and
(3) CR = Annual Percent Change in Rent as
Determined by the Most Recent 10-Year Average of the difference in the IPD–GDP Index
from January of one year to January of the
following year.

(b) One-time payment for grants converted
to
perpetual
grants
under
§ 2807.15(b). If the land your grant encumbers is being transferred out of
Federal ownership, and you request a
conversion of your grant to a perpetual
right-of-way grant, you must make a
one-time rental payment in accordance
with § 2806.25(a).
(c) In paragraphs (a) and (b) of this
section, the annual rent is determined
from the Per Acre Rent Schedule (see
§ 2806.20(c)) as updated under § 2806.22.
However, the per acre zone value and
zone number used in this annual rental
determination will be based on the per
acre land value from acceptable market information or the appraisal report, if any, for the land transfer action and not the county average per
acre land and building value from the
NASS Census. You may also submit an
appraisal report on your own initiative

in accordance with paragraph (d) of
this section.
(d) When no acceptable market information is available and no appraisal report has been completed for the land
transfer action or when the BLM requests it, you must:
(1) Prepare an appraisal report using
Federal appraisal standards, at your
expense, that explains how you estimated the land value per acre, the rate
of return, and the encumbrance factor;
and
(2) Submit the appraisal report for
consideration by the BLM State Director with jurisdiction over the lands encumbered by your authorization.
[73 FR 65072, Oct. 31, 2008]

§ 2806.26 How may I make rental payments when land encumbered by
my perpetual easement issued
under § 2807.15(b) is being transferred out of Federal ownership?
(a) The BLM will use the appraisal
report for the land transfer action (i.e.,
direct or indirect land sales, land exchanges, and other land disposal actions) and other acceptable market information to determine the one-time
rental payment for a perpetual easement issued under § 2807.15(b).
(b) When no acceptable market information is available and no appraisal report has been completed for the land
transfer action or when the BLM requests it, you must prepare an appraisal report as required under
§ 2806.25(d). You may also submit an appraisal report on your own initiative in
accordance with § 2806.25(d).
[73 FR 65072, Oct. 31, 2008]

COMMUNICATION SITE RIGHTS-OF-WAY
§ 2806.30 What are the rents for communication site rights-of-way?
(a) Rent schedule. (1) The BLM uses a
rent schedule to calculate the rent for
communication site rights-of-way. The
schedule is based on nine population
strata (the population served), as depicted in the most recent version of the
Ranally Metro Area (RMA) Population
Ranking, and the type of communication use or uses for which we normally
grant communication site rights-ofway. These uses are listed as part of
the definition of ‘‘communication use

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§ 2806.32

rent schedule,’’ set out at § 2801.5(b).
You may obtain a copy of the current
schedule from any BLM State, district,
or field office or by writing: U.S. Department of the Interior, Bureau of
Land Management, 20 M Street SE.,
Room 2134LM, Washington, DC 20003.
We also post the current communication use rent schedule at http://
www.blm.gov.
(2) We update the schedule annually
based on two sources: The U.S. Department of Labor Consumer Price Index
for All Urban Consumers, U.S. City Average (CPI–U), as of July of each year
(difference in CPI–U from July of one
year to July of the following year), and
the RMA population rankings.
(3) BLM will limit the annual adjustment based on the Consumer Price
Index to no more than 5 percent. At
least every 10 years BLM will review
the rent schedule to ensure that the
schedule reflects fair market value.
(b) Uses not covered by the schedule.
The communication use rent schedule
does not apply to:
(1) Communication site uses, facilities, and devices located entirely within the exterior boundaries of an oil and
gas lease, and directly supporting the
operations of the oil and gas lease (see
parts 3160 through 3190 of this chapter);
(2) Communication facilities and uses
ancillary to and authorized under a linear grant, such as a railroad grant or
an oil and gas pipeline grant;
(3) Communication uses not listed on
the schedule, such as telephone lines,
fiber optic cables, and new technologies;
(4) Grants for which BLM determines
the rent by competitive bidding; or
(5) Communication facilities and uses
for which the BLM State Director concurs that:
(i) The expected annual rent, as BLM
estimates from market data, exceeds
the rent from the rent schedule by five
times; or
(ii) The communication site serves a
population of one million or more and
the expected annual rent for the communication use or uses is more than
$10,000 above the rent from the rent
schedule.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92216, Dec. 19, 2016]

§ 2806.31 How will BLM calculate rent
for a right-of-way for communication uses in the schedule?
(a) Basic rule. BLM calculates rents
for:
(1) Single-use facilities by applying
the rent from the communication use
rent schedule (see § 2806.30 of this subpart) for the type of use and the population strata served; and
(2) Multiple-use facilities, whose authorizations provide for subleasing, by
setting the rent of the highest value
use in the facility or facilities as the
base rent (taken from the rent schedule) and adding to it 25 percent of the
rent from the rent schedule for all tenant uses in the facility or facilities, if
a tenant use is not used as the base
rent (rent = base rent + 25 percent of
all rent due to additional tenant uses
in the facility or facilities) (see also
§§ 2806.32 and 2806.34 of this subpart).
(b) Exclusions. When calculating rent,
BLM will exclude customer uses, except as provided for at §§ 2806.34(b)(4)
and 2806.42 of this subpart. BLM will
also exclude those uses exempted from
rent by § 2806.14 of this subpart, and
any uses whose rent has been waived or
reduced to zero as described in § 2806.15
of this subpart.
(c) Annual statement. By October 15 of
each year, you, as a grant or lease
holder, must submit to BLM a certified
statement listing any tenants and customers in your facility or facilities and
the category of use for each tenant or
customer as of September 30 of the
same year. BLM may require you to
submit any additional information
needed to calculate your rent. BLM
will determine the rent based on the
certified statement provided. We require only facility owners or facility
managers to hold a grant or lease (unless you are an occupant in a federallyowned facility as described in § 2806.42
of this subpart), and will charge you
rent for your grant or lease based on
the total number of communication
uses within the right-of-way and the
type of uses and population strata the
facility or site serves.
§ 2806.32 How does BLM determine the
population strata served?
(a) BLM determines the population
strata served as follows:

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43 CFR Ch. II (10–1–20 Edition)

(1) If the site or facility is within a
designated RMA, BLM will use the population strata of the RMA;
(2) If the site or facility is within a
designated RMA, and it serves two or
more RMAs, BLM will use the population strata of the RMA having the
greatest population;
(3) If the site or facility is outside an
RMA, and it serves one or more RMAs,
BLM will use the population strata of
the RMA served having the greatest
population;
(4) If the site or facility is outside an
RMA and the site does not serve an
RMA, BLM will use the population
strata of the community it serves having the greatest population, as identified in the current edition of the Rand
McNally Road Atlas;
(5) If the site or facility is outside an
RMA, and it serves a community of
less than 25,000, BLM will use the lowest population strata shown on the rent
schedule.
(b)(1) BLM considers all facilities
(and all uses within the same facility)
located at one site to serve the same
RMA or community. However, BLM
may make case-by-case exceptions in
determining the population served at a
particular site by uses not located
within the same facility and not authorized under the same grant or lease.
BLM has the sole responsibility to
make this determination. For example,
when a site has a mix of high-power
and low-power uses that are authorized
by separate grants or leases, and only
the high-power uses are capable of
serving an RMA or community with
the greatest population, BLM may separately determine the population strata served by the low-power uses (if not
collocated in the same facility with the
high-power uses), and calculate their
rent as described in § 2806.30 of this subpart.
(2) For purposes of rent calculation,
all uses within the same facility and/or
authorized under the same grant or
lease must serve the same population
strata.
(3) For purposes of rent calculation,
BLM will not modify the population
rankings published in the Rand
McNally Commercial Atlas and Marketing Guide or the population of the
community served.

§ 2806.33 How will BLM calculate the
rent for a grant or lease authorizing a single use communication
facility?
BLM calculates the rent for a grant
or lease authorizing a single-use communication facility from the communication use rent schedule (see § 2806.30
of this subpart), based on your authorized single use and the population strata it serves (see § 2806.32 of this subpart).
§ 2806.34 How will BLM calculate the
rent for a grant or lease authorizing a multiple-use communication
facility?
(a) Basic rule. BLM first determines
the population strata the communication facility serves according to
§ 2806.32 of this subpart and then calculates the rent assessed to facility
owners and facility managers for a
grant or lease for a communication facility that authorizes subleasing with
tenants, customers, or both, as follows:
(1) Using the communication use rent
schedule. BLM will determine the rent
of the highest value use in the facility
or facilities as the base rent, and add
to it 25 percent of the rent from the
rent schedule (see § 2806.30 of this subpart) for each tenant use in the facility
or facilities;
(2) If the highest value use is not the
use of the facility owner or facility
manager, BLM will consider the owner’s or manager’s use like any tenant
or customer use in calculating the rent
(see § 2806.35(b) for facility owners and
§ 2806.39(a) for facility managers);
(3) If a tenant use is the highest
value use, BLM will exclude the rent
for that tenant’s use when calculating
the additional 25 percent amount under
paragraph (a)(1) of this section for tenant uses;
(4) If a holder has multiple uses authorized under the same grant or lease,
such as a TV and a FM radio station,
BLM will calculate the rent as in paragraph (a)(1) of this section. In this case,
the TV rent would be the highest value
use and BLM would charge the FM portion according to the rent schedule as
if it were a tenant use.
(b) Special applications. The following
provisions apply when calculating

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§ 2806.36

rents for communication uses exempted from rent under § 2806.14 of this subpart or communication uses whose rent
has been waived or reduced to zero
under § 2806.15 of this subpart:
(1) BLM will exclude exempted uses
or uses whose rent has been waived or
reduced to zero (see §§ 2806.14 and 2806.15
of this subpart) of either a facility
owner or a facility manager in calculating rents. BLM will exclude similar
uses (see §§ 2806.14 and 2806.15 of this
subpart) of a customer or tenant if
they choose to hold their own grant or
lease (see § 2806.36 of this subpart) or
are occupants in a Federal facility (see
§ 2806.42(a) of this subpart);
(2) BLM will charge rent to a facility
owner whose own use is either exempted from rent or whose rent has been
waived or reduced to zero (see §§ 2806.14
and 2806.15 of this subpart), but who
has tenants in the facility, in an
amount equal to the rent of the highest
value tenant use plus 25 percent of the
rent from the rent schedule for each of
the remaining tenant uses subject to
rent;
(3) BLM will not charge rent to a facility owner, facility manager, or tenant (when holding a grant or lease)
when all of the following occur:
(i) BLM exempts from rent, waives,
or reduces to zero the rent for the holder’s use (see §§ 2806.14 and 2806.15 of this
subpart);
(ii) Rent from all other uses in the facility is exempted, waived, or reduced
to zero, or BLM considers such uses as
customer uses; and
(iii) The holder is not operating the
facility for commercial purposes (see
§ 2801.5(b) of this part) with respect to
such other uses in the facility; and
(4) If a holder, whose own use is exempted from rent or whose rent has
been waived or reduced to zero, is conducting a commercial activity with
customers or tenants whose uses are
also exempted from rent or whose rent
has been waived or reduced to zero (see
§§ 2806.14 and 2806.15 of this subpart),
BLM will charge rent, notwithstanding
section 2806.31(b), based on the highest
value use within the facility. This
paragraph (b)(4) does not apply to facilities exempt from rent under

§ 2806.14(a)(4) except when the facility
also includes ineligible facilities.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92217, Dec. 19, 2016]

§ 2806.35 How will BLM calculate rent
for private mobile radio service
(PMRS), internal microwave, and
‘‘other’’ category uses?
If an entity engaged in a PMRS, internal microwave, or ‘‘other’’ use is:
(a) Using space in a facility owned by
either a facility owner or facility manager, BLM will consider the entity to
be a customer and not include these
uses in the rent calculation for the facility; or
(b) The facility owner, BLM will follow the provisions in § 2806.31 of this
subpart to calculate rent for a lease involving these uses. However, we include the rent from the rent schedule
for a PMRS, internal microwave, or
other use in the rental calculation only
if the value of that use is equal to or
greater than the value of any other use
in the facility. BLM excludes these
uses in the 25 percent calculation (see
§ 2806.31(a) of this subpart) when their
value does not exceed the highest value
in the facility.
§ 2806.36 If I am a tenant or customer
in a facility, must I have my own
grant or lease and if so, how will
this affect my rent?
(a) You may have your own authorization, but BLM does not require a
separate grant or lease for tenants and
customers using a facility authorized
by a BLM grant or lease that contains
a subleasing provision. BLM charges
the facility owner or facility manager
rent based on the highest value use
within the facility (including any tenant or customer use authorized by a
separate grant or lease) and 25 percent
of the rent from the rent schedule for
each of the other uses subject to rent
(including any tenant or customer use
a separate grant or lease authorizes
and the facility owner’s use if it is not
the highest value use).
(b) If you own a building, equipment
shelter, or tower on public lands for
communication purposes, you must
have an authorization under this part,
even if you are also a tenant or customer in someone else’s facility.

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43 CFR Ch. II (10–1–20 Edition)

(c) BLM will charge tenants and customers who hold their own grant or
lease in a facility, as grant or lease
holders, the full annual rent for their
use based on the BLM communication
use rent schedule. BLM will also include such tenant or customer use in
calculating the rent the facility owner
or facility manager must pay.
§ 2806.37 How will BLM calculate rent
for a grant or lease 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?
BLM will include the single use in
calculating rent for each grant or lease
authorizing that use. For example, a
television station locates its antenna
on a tower authorized by grant or lease
‘‘A’’ and locates its related broadcast
equipment in a building authorized by
grant or lease ‘‘B.’’ The statement listing tenants and customers for each facility (see § 2806.31(c) of this subpart)
must include the television use because
each facility is benefitting economically from having the television broadcast equipment located there, even
though the combined equipment is supporting only one single end use.
§ 2806.38 Can I combine multiple
grants or leases for facilities located on one site into a single grant
or lease?
If you hold authorizations for two or
more facilities on the same site, you
can combine all those uses under one
grant or lease, with BLM’s approval.
The highest value use in all the combined facilities determines the base
rent. BLM then charges for each remaining use in the combined facilities
at 25 percent of the rent from the rent
schedule. These uses include those uses
we previously calculated as base rents
when BLM authorized each of the facilities on an individual basis.
§ 2806.39 How will BLM calculate rent
for a lease for a facility manager’s
use?
(a) BLM will follow the provisions in
§ 2806.31 of this subpart to calculate
rent for a lease involving a facility
manager’s use. However, we include the
rent from the rent schedule for a facil-

ity manager’s use in the rental calculation only if the value of that use is
equal to or greater than the value of
any other use in the facility. BLM excludes the facility manager’s use in the
25 percent calculation (see § 2806.31(a) of
this subpart) when its value does not
exceed the highest value in the facility.
(b) If you are a facility owner and
you terminate your use within the facility, but want to retain the lease for
other purposes, BLM will continue to
charge you for your authorized use
until BLM amends the lease to change
your use to facility manager or to
some other communication use.
§ 2806.40 How will BLM calculate rent
for a grant or lease for ancillary
communication
uses
associated
with communication uses on the
rent schedule?
If the ancillary communication
equipment is used solely in direct support of the primary use (see the definition of communication use rent schedule in § 2801.5 of this part), BLM will
calculate and charge rent only for the
primary use.
§ 2806.41 How will BLM calculate rent
for communication facilities ancillary to a linear grant or other use
authorization?
When a communication facility is ancillary to, and authorized by BLM
under, a grant for a linear use, or some
other type of use authorization (e.g., a
mineral lease or sundry notice), BLM
will determine the rent using the linear rent schedule (see § 2806.20 of this
subpart) or rent scheme associated
with the other authorization, and not
the communication use rent schedule.
§ 2806.42 How will BLM calculate rent
for a grant or lease authorizing a
communication use within a federally-owned communication facility?
(a) If you are an occupant of a federally-owned communication facility,
you must have your own grant or lease
and pay rent in accordance with these
regulations.
(b) If a Federal agency holds a grant
or lease and agrees to operate the facility as a facility owner under § 2806.31 of
this subpart, occupants do not need a
separate BLM grant or lease and BLM

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Bureau of Land Management, Interior

§ 2806.51

will calculate and charge rent to the
Federal facility owner under §§ 2806.30
through 2806.44 of this subpart.
§ 2806.43 How does BLM calculate rent
for passive reflectors and local exchange networks?
(a) BLM calculates rent for passive
reflectors and local exchange networks
by using the same rent schedules for
passive reflectors and local exchange
networks as the Forest Service uses for
the region in which the facilities are
located. You may obtain the pertinent
schedules from the Forest Service or
from any BLM state or field office in
the region in question. For passive reflectors and local exchange networks
not covered by a Forest Service regional schedule, we use the provisions
in § 2806.70 to determine rent. See Forest Service regulations at 36 CFR chapter II.
(b) For the purposes of this subpart,
the term:
(1) Passive reflector includes various
types of nonpowered reflector devices
used to bend or ricochet electronic signals between active relay stations or
between an active relay station and a
terminal. A passive reflector commonly serves a microwave communication system. The reflector requires
point-to-point line-of-sight with the
connecting relay stations, but does not
require electric power; and
(2) Local exchange network means
radio service which provides basic telephone service, primarily to rural communities.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92217, Dec. 19, 2016]

§ 2806.44 How will BLM calculate rent
for a facility owner’s or facility
manager’s grant or lease which authorizes communication uses?
This section applies to a grant or
lease that authorizes a mixture of communication uses, some of which are
subject to the communication use rent
schedule and some of which are not. We
will determine rent for these leases
under the provisions of this section.
(a) The BLM establishes the rent for
each of the uses in the facility that are
not covered by the communication use
rent schedule using § 2806.70.

(b) BLM establishes the rent for each
of the uses in the facility that are covered by the rent schedule using
§§ 2806.30 and 2806.31 of this subpart.
(c) BLM determines the facility
owner or facility manager’s rent by
identifying the highest rent in the facility of those established under paragraphs (a) and (b) of this section, and
adding to it 25 percent of the rent of all
other uses subject to rent.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92217, Dec. 19, 2016]

SOLAR ENERGY RIGHTS-OF-WAY
§ 2806.50 Rents and fees for solar energy rights-of-way.
If you hold a right-of-way authorizing solar energy site-specific or
project-area testing, or solar energy
development, you must pay an annual
rent and fee in accordance with this
section and subpart. Your solar energy
right-of-way authorization will either
be a grant (if issued under subpart 2804)
or a lease (if issued under subpart 2809).
Rents and fees for either type of authorization consist of an acreage rent
that must be paid prior to issuance of
the authorization and a phased-in MW
capacity fee. Both the acreage rent and
the phased-in MW capacity fee are
charged and calculated consistent with
§ 2806.11 and prorated consistent with
§ 2806.12(a). The MW capacity fee will
vary depending on the size and technology of the solar energy development
project.
[81 FR 92217, Dec. 19, 2016]

§ 2806.51 Scheduled Rate Adjustment.
(a) The BLM will adjust your acreage
rent and MW capacity fee over the
course of your authorization as described in these regulations. For new
grants or leases, you may choose either
the standard rate adjustment method
(see § 2806.52(a)(5) and (b)(3) for grants;
see § 2806.54(a)(4) or (c) for leases) or the
scheduled rate adjustment method (see
§ 2806.52(d) for grants; see § 2806.54(d) for
leases). Once you select a rate adjustment method, that method will be
fixed until you renew your grant or
lease (see § 2807.22).
(b) For new grants or leases, if you
select the scheduled rate adjustment
method you must notify the BLM of

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§ 2806.52

43 CFR Ch. II (10–1–20 Edition)

your decision in writing. Your decision
must be received by the BLM before
your grant or lease is issued. If you do
not select the scheduled rate adjustment method, the standard rate adjustment method will apply.
(c) If you hold a grant that is in effect prior to January 18, 2017, you may
either accept the standard rate adjustment method or request in writing that
the BLM apply the scheduled rate adjustment method, as set forth in
§ 2806.52(d), to your grant. To take advantage of the scheduled rate adjustment option, your request must be received by the BLM before December 19,
2018. The BLM will continue to apply
the standard rate adjustment method
to adjust your rates unless and until it
receives your request to use the scheduled rate adjustment method.
[81 FR 92217, Dec. 19, 2016]

§ 2806.52 Rents and fees for solar energy development grants.
You must pay an annual acreage rent
and MW capacity fee for your solar energy development grant as follows:
(a) Acreage rent. The BLM will calculate the acreage rent by multiplying
the number of acres (rounded up to the
nearest tenth of an acre) within the authorized area times the annual per acre
zone rate from the solar energy acreage
rent schedule in effect at the time the
authorization is issued.
(1) Per acre zone rate. The annual per
acre zone rate from the solar energy
acreage rent schedule is calculated
using the per acre zone value (as assigned under paragraph (a)(2) of this
section), encumbrance factor, rate of
return, and the annual adjustment factor. The calculation for determining
the annual per acre zone rate is A × B
× C × D = E where:
(i) A is the per acre zone value = the
same per acre zone values described in
the linear rent schedule in § 2806.20(c);
(ii) B is the encumbrance factor = 100
percent;
(iii) C is the rate of return = 5.27 percent;
(iv) D is the annual adjustment factor = the average annual change in the
IPD–GDP for the 10-year period immediately preceding the year that the
NASS Census data becomes available
(see § 2806.22(a)). The BLM will adjust

the per acre zone rates each year based
on the average annual change in the
IPD–GDP
as
determined
under
§ 2806.22(a). Adjusted rates are effective
each year on January 1; and
(v) E is the annual per acre zone rate.
(2) Assignment of counties. The BLM
will calculate the per acre zone rate in
paragraph (a)(1) of this section by
using a State-specific factor to assign a
county to a zone in the solar energy
acreage rent schedule. The BLM will
calculate a State-specific factor and
apply it to the NASS data (county average per acre land and building value)
to determine the per acre value and assign a county (or other geographical
area) to a zone. The State-specific factor represents the percent difference
between improved agricultural land
and unimproved rangeland values,
using NASS data. The calculation for
determining the State-specific factor is
(A/B)¥(C/D) = E where:
(i) A = the NASS Census statewide
average per acre value of non-irrigated
acres;
(ii) B = the NASS Census statewide
average per acre land and building
value;
(iii) C = the NASS Census total statewide acres in farmsteads, homes, buildings, livestock facilities, ponds, roads,
wasteland, etc.;
(iv) D = the total statewide acres in
farms; and
(v) E = the State-specific percent factor or 20 percent, whichever is greater.
(3) The initial assignment of counties
to the zones on the solar energy acreage rent schedule will be based upon
the most recent NASS Census data
(2012) for years 2016 through 2020. The
BLM may on its own or in response to
requests consider making regional adjustments to those initial assignments,
based on evidence that the NASS Census values do not accurately reflect the
value of the BLM-managed lands in a
given area. The BLM will update this
rent schedule once every 5 years by reassigning counties to reflect the updated NASS Census values as described
in § 2806.21 and recalculate the Statespecific percent factor once every 10
years as described in § 2806.22(b).
(4) Acreage rent payment. You must
pay the acreage rent regardless of the
stage of development or operations on

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§ 2806.52

the entire public land acreage described in the right-of-way authorization. The BLM State Director may approve a rental payment plan consistent
with § 2806.15(c).
(5) Acreage rent adjustments. This
paragraph (a)(5) applies unless you selected the scheduled rate adjustment
method (see § 2806.51). The BLM will adjust the acreage rent annually to reflect the change in the per acre zone
rates as specified in paragraph (a)(1) of
this section. The BLM will use the
most current per acre zone rates to calculate the acreage rent for each year of
the grant term.
(6) You may obtain a copy of the current per acre zone rates for solar energy development (solar energy acreage rent schedule) from any BLM
State, district, or field office or by
writing: U.S. Department of the Interior, Bureau of Land Management, 20 M
Street SE., Room 2134LM, Attention:
Renewable Energy Coordination Office,
Washington, DC 20003. The BLM also
posts the current solar energy acreage
rent schedule for solar energy development at http://www.blm.gov.
(b) MW capacity fee. The MW capacity fee is calculated by multiplying the
approved MW capacity by the MW rate
(for the applicable type of technology
employed by the project) from the MW
rate schedule (see paragraph (b)(2) of
this section). You must pay the MW capacity fee annually when electricity
generation begins or is scheduled to
begin in the approved POD, whichever
comes first:
(1) MW rate. The MW rate is calculated by multiplying the total hours
per year, by the net capacity factor, by
the MWh price, by the rate of return.
For an explanation of each of these
terms, see the definition of MW rate in
§ 2801.5(b).
(2) MW rate schedule. You may obtain
a copy of the current MW rate schedule
for solar energy development from any
BLM State, district, or field office or
by writing: U.S. Department of the Interior, Bureau of Land Management, 20
M Street SE., Room 2134LM, Attention:
Renewable Energy Coordination Office,
Washington, DC 20003. The BLM also
posts the current MW rate schedule for
solar energy development at http://
www.blm.gov.

(3) Periodic adjustments in the MW
rate. This paragraph (b)(3) applies unless you selected the scheduled rate adjustment method (see § 2806.51). The
BLM will adjust the MW rate applicable to your grant every 5 years, beginning in 2021, by recalculating the following two components of the MW rate
formula:
(i) The adjusted MWh price is the average of the annual weighted average
wholesale price per MWh for the major
trading hubs serving the 11 Western
States of the continental United States
for the full 5 calendar-year period preceding the adjustment, rounded to the
nearest dollar increment; and
(ii) The adjusted rate of return is the
10-year average of the 20-year U.S.
Treasury bond yield for the full 10 calendar-year period preceding the adjustment, rounded to the nearest one-tenth
percent, with a minimum rate of return of 4 percent.
(4) MW rate phase-in. This paragraph
(b)(4) applies unless you selected the
scheduled rate adjustment method (see
§ 2806.51). If you hold a solar energy development grant, the MW rate will be
phased in as follows:
(i) There is a 3-year phase-in of the
MW rate when electricity generation
begins or is scheduled to begin in the
approved POD, whichever comes first,
at the rates of:
(A) 25 percent for the first year. This
rate applies for the first partial calendar year of operations, from the date
electricity generation begins until Dec.
31 of that year;
(B) 50 percent for the second year;
and
(C) 100 percent for the third and subsequent years of operations.
(ii) After generation of electricity
starts and an approved POD provides
for staged development:
(A) The 3-year phase-in of the MW
rate applies to each stage of development; and
(B) The MW capacity fee is calculated using the authorized MW capacity approved for that stage plus any
previously approved stages, multiplied
by the MW rate.
(5) The general payment provisions
for rents described in this subpart, except for § 2806.14(a)(4), also apply to the
MW capacity fee.

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43 CFR Ch. II (10–1–20 Edition)

(c) Initial implementation of the acreage
rent and MW capacity fee. This paragraph (c) applies unless you selected
the scheduled rate adjustment method
(see § 2806.51). If you hold a solar energy
grant and made payments for billing
year 2016, the BLM will reduce by 50
percent the net increase in annual
costs between billing year 2017 and billing year 2016. The net increase will be
calculated based on a full calendar
year.
(d) Scheduled rate adjustment. Under
the scheduled rate adjustment method
(see § 2806.51), the BLM will update
your per acre zone rate and MW rate as
follows:
(1) The BLM will calculate your payments using the per acre zone rate (see
§ 2806.52(a)(1)) and MW rate (see
§ 2806.52(b)(1)) in place when your grant
is issued, or for existing grants, the per
acre zone rate and MW rate in place
prior to December 19, 2016, as adjusted
under paragraph (d)(6) of this section;
(2) The per acre zone rate will increase:
(i) Annually, beginning after the first
full calendar year plus any initial partial year following issuance of your
grant, by the average annual change in
the
IPD–GDP
as
described
in
§ 2806.22(b); and
(ii) Every 5 years, beginning after the
first 5 calendar years, plus any initial
partial year, following issuance of your
grant, by 20 percent;
(3) The MW rate will increase by 20
percent every 5 years, beginning after
the first 5 years, plus the initial partial
year, if any, your grant is in effect;
(4) The BLM will not apply the phasein to your MW rate under § 2806.52(b)(4)
or the reduction under § 2806.52(c);
(5) If the approved POD for your
project provides for staged development, the BLM will calculate the MW
capacity fee using the MW capacity approved for the current stage plus any
previously approved stages, multiplied
by the MW rate, as described under this
section.
(6) For grants in place prior to January 18, 2017 that select the scheduled
rate adjustment method offered under
§ 2806.51(c), the per acre zone rate and
the MW rate in place prior to December
19, 2016 will be adjusted for the first

year’s payment using the scheduled
rate adjustment method as follows:
(i) The per acre zone rate will increase by the average annual change in
the IPD–GDP as described in § 2806.22(b)
plus 20 percent;
(ii) The MW rate will increase by 20
percent; and
(iii) Subsequent increases will be performed as set forth in paragraphs (d)(2)
and (3) of this section from the date of
the initial adjustment under this paragraph (d).
[81 FR 92217, Dec. 19, 2016]

§ 2806.54 Rents and fees for solar energy development leases.
If you hold a solar energy development lease obtained through competitive bidding under subpart 2809 of this
part, you must make annual payments
in accordance with this section and
subpart, in addition to the one-time,
upfront bonus bid you paid to obtain
the lease. The annual payment includes
an acreage rent for the number of acres
included within the solar energy lease
and an additional MW capacity fee
based on the total authorized MW capacity for the approved solar energy
project on the public lands.
(a) Acreage rent. The BLM will calculate and bill you an acreage rent
that must be paid prior to issuance of
your lease as described in § 2806.52(a).
This acreage rent will be based on the
following:
(1)
Per
acre
zone
rate.
See
§ 2806.52(a)(1).
(2) Assignment of counties. See
§ 2806.52(a)(2) and (3).
(3)
Acreage
rent
payment.
See
§ 2806.52(a)(4).
(4) Acreage rent adjustments. This
paragraph (a)(4) applies unless you selected the scheduled rate adjustment
method (see § 2806.51). Once the acreage
rent is determined under § 2806.52(a), no
further adjustments in the annual
acreage rent will be made until year 11
of the lease term and each subsequent
10-year period thereafter. The BLM will
use the per acre zone rates in effect
when it adjusts the annual acreage
rent at those 10-year intervals,
(b) MW capacity fee. See § 2806.52(b) introductory text and (b)(1), (2), and (3).
(c) MW rate phase-in. This paragraph
(c) applies unless you selected the

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Bureau of Land Management, Interior

§ 2806.58

scheduled rate adjustment method (see
§ 2806.51). If you hold a solar energy development lease, the MW capacity fee
will be phased in, starting when electricity begins to be generated. The MW
capacity fee for years 1–20 will be calculated using the MW rate in effect
when the lease is issued. The MW capacity fee for years 21–30 will be calculated using the MW rate in effect in
year 21 of the lease. These rates will be
phased-in as follows:
(1) For years 1 through 10 of the
lease, plus any initial partial year, the
MW capacity fee is calculated by multiplying the project’s authorized MW
capacity by 50 percent of the applicable
solar technology MW rate, as described
in § 2806.52(b)(2).
(2) For years 11 through 20 of the
lease, the MW capacity fee is calculated by multiplying the project’s
authorized MW capacity by 100 percent
of the applicable solar technology MW
rate, as described in § 2806.52(b)(2).
(3) For years 21 through 30 of the
lease, the MW capacity fee is calculated by multiplying the project’s
authorized MW capacity by 100 percent
of the applicable solar technology MW
rate, as described in § 2806.52(b)(2).
(4) If the lease is renewed, the MW capacity fee is calculated using the MW
rates at the beginning of the renewed
lease period and will remain at that
rate through the initial 10-year period
of the renewal term. The MW capacity
fee will be adjusted using the MW rate
at the beginning of each subsequent 10year period of the renewed lease term.
(5) If an approved POD provides for
staged development, the MW capacity
fee is calculated using the MW capacity approved for that stage plus any
previously approved stages, multiplied
by the MW rate as described under this
section.
(d) Scheduled rate adjustment. Under
the scheduled rate adjustment (see
§ 2806.51), the BLM will update your per
acre zone rate and MW rate as follows:
(1) The BLM will calculate your payments using the per acre zone rate (see
§ 2806.52(a)(1)) and MW rate (see
§ 2806.52(b)(1)) in place when your lease
is issued;
(2) The per acre zone rate will increase every 10 years, beginning after
the first 10 years, plus the initial par-

tial year, if any, your lease is in effect,
by the average annual change in the
IPD–GDP for the preceding 10-year period as described in § 2806.22(b) plus 40
percent;
(3) The MW rate will increase by 40
percent every 10 years, beginning after
the first 10 years, plus the initial partial year, if any, your lease is in effect;
(4) The BLM will not apply the phasein to your MW rate under § 2806.52(c).
Instead, for years 1 through 5, plus any
initial partial year, the BLM will calculate the MW capacity fee by multiplying the project’s authorized MW capacity by 50 percent of the applicable
solar technology MW rate. This phasein will not be applied to renewed
leases; and
(5) If the approved POD for your
project provides for staged development, the BLM will calculate the MW
capacity fee using the MW capacity approved for the current stage plus any
previously approved stages, multiplied
by the MW rate, as described under this
section.
[81 FR 92217, Dec. 19, 2016]

§ 2806.56 Rent for support facilities authorized under separate grant(s).
If a solar energy development project
includes separate right-of-way authorizations issued for support facilities
only (administration building, groundwater wells, construction lay down and
staging areas, surface water management and control structures, etc.) or
linear right-of-way facilities (pipelines,
roads, power lines, etc.), rent is determined using the Per Acre Rent Schedule for linear facilities (see § 2806.20(c)).
[81 FR 92217, Dec. 19, 2016]

§ 2806.58 Rent for energy development
testing grants.
(a) Grants for energy site-specific testing. You must pay $100 per year for
each meteorological tower or instrumentation facility location. BLM offices with approved small site rental
schedules may use those fee structures
if the fees in those schedules charge
more than $100 per meteorological
tower per year. In lieu of annual payments, you may instead pay for the entire term of the grant (3 years or less).

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§ 2806.60

43 CFR Ch. II (10–1–20 Edition)

(b) Grants for energy project-area testing. You must pay $2,000 per year or $2
per acre per year for the lands authorized by the grant, whichever is greater.
There is no additional rent for the installation of each meteorological tower
or instrumentation facility located
within the site testing and monitoring
project-area.
[81 FR 92217, Dec. 19, 2016]

WIND ENERGY RIGHTS-OF-WAY
§ 2806.60 Rents and fees for wind energy rights-of-way.
If you hold a right-of-way authorizing wind energy site-specific testing
or project-area testing or wind energy
development, you must pay an annual
rent and fee in accordance with this
section and subpart. Your wind energy
development right-of-way authorization will either be a grant (if issued
under subpart 2804) or a lease (if issued
under subpart 2809). Rents and fees for
either type of authorization consist of
an acreage rent that must be paid prior
to issuance of the authorization and a
phased-in MW capacity fee. Both the
acreage rent and the phased-in MW capacity fee are charged and calculated
consistent with § 2806.11 and prorated
consistent with § 2806.12(a). The MW capacity fee will vary depending on the
size of the wind energy development
project.
[81 FR 92220, Dec. 19, 2016]

§ 2806.61

Scheduled Rate Adjustment.

(a) The BLM will adjust your acreage
rent and MW capacity fee over the
course of your authorization as described in these regulations. For new
grants or leases, you may choose either
the standard rate adjustment method
(see § 2806.52(a)(5) and (b)(3) for grants;
see § 2806.54(a)(4) or (c) for leases) or the
scheduled rate adjustment method (see
§ 2806.52(d) for grants; see § 2806.54(d) for
leases). Once you select a rate adjustment method, that method will be
fixed until you renew your grant or
lease (see § 2807.22).
(b) For new grants or leases, if you
select the scheduled rate adjustment
method you must notify the BLM of
your decision in writing. Your decision
must be received by the BLM before

your grant or lease is issued. If you do
not select the scheduled rate adjustment method, the standard rate adjustment method will apply.
(c) If you hold a grant that is in effect prior to January 18, 2017, you may
either accept the standard rate adjustment method or request in writing that
the BLM apply the scheduled rate adjustment method, as set forth in
§ 2806.52(d), to your grant. To take advantage of the scheduled rate adjustment option, your request must be received by the BLM before December 19,
2018. The BLM will continue to apply
the standard rate adjustment method
to adjust your rates unless and until it
receives your request to use the scheduled rate adjustment method.
[81 FR 92220, Dec. 19, 2016]

§ 2806.62 Rents and fees for wind energy development grants.
You must pay an annual acreage rent
and MW capacity fee for your wind energy development grant as follows:
(a) Acreage rent. The BLM will calculate the acreage rent by multiplying
the number of acres (rounded up to the
nearest tenth of an acre) within the authorized area times the per acre zone
rate from the wind energy acreage rent
schedule in effect at the time the authorization is issued.
(1) Per acre zone rate. The annual per
acre zone rate from the wind energy
acreage rent schedule is calculated
using the per acre zone value (as assigned in accordance with paragraph
(a)(2) of this section), encumbrance factor, rate of return, and the annual adjustment factor. The calculation for
determining the annual per acre zone
rate is A × B × C × D = E where:
(i) A is the per acre zone value = the
same per- acre zone values described in
the linear rent schedule in § 2806.20(c);
(ii) B is the encumbrance factor = 10
percent;
(iii) C is the rate of return = 5.27 percent;
(iv) D is the annual adjustment factor = the average annual change in the
IPD–GDP for the 10-year period immediately preceding the year that the
NASS Census data becomes available
(see § 2806.22(a)). The BLM will adjust
the per acre rates each year based on
the average annual change in the IPD–

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Bureau of Land Management, Interior

§ 2806.62

GDP as determined under § 2806.22(a).
Adjusted rates are effective each year
on January 1; and
(v) E is the annual per acre zone rate.
(2) Assignment of counties. The BLM
will calculate the per acre zone rate in
paragraph (a)(1) of this section by
using a State-specific factor to assign a
county to a zone in the wind energy
acreage rent schedule. The BLM will
calculate a State-specific factor and
apply it to the NASS data (county average per acre land and building value)
to determine the per acre value and assign a county (or other geographical
area) to a zone. The State-specific factor represents the percent difference
between improved agricultural land
and unimproved rangeland values,
using NASS data. The calculation per
acre for determining the State-specific
factor is (A/B)¥(C/D) = E where:
(i) A = the NASS Census statewide
average per acre value of non-irrigated
acres;
(ii) B = the NASS Census statewide
average per acre land and building
value;
(iii) C = the NASS Census total statewide acres in farmsteads, homes, buildings, livestock facilities, ponds, roads,
wasteland, etc.;
(iv) D = the total statewide acres in
farms; and
(v) E = the State-specific percent factor or 20 percent, whichever is greater.
(3) The initial assignment of counties
to the zones on the wind energy acreage rent schedule will be based upon
the most recent NASS Census data
(2012) for years 2016 through 2020. The
BLM may on its own or in response to
requests consider making regional adjustments to those initial assignments,
based on evidence that the NASS Census values do not accurately reflect
those of the BLM-managed lands. The
BLM will update this rent schedule
once every 5 years by re-assigning
counties to reflect the updated NASS
Census values as described in § 2806.21
and recalculate the State-specific percent factor once every 10 years as described in § 2806.22(b).
(4) Acreage rent payment. You must
pay the acreage rent regardless of the
stage of development or operations on
the entire public land acreage described in the right-of-way authoriza-

tion. The BLM State Director may approve a rental payment plan consistent
with § 2806.15(c).
(5) Acreage rent adjustments. This
paragraph (a)(5) applies unless you selected the scheduled rate adjustment
method (see § 2806.61). The BLM will adjust the acreage rent annually to reflect the change in the per acre zone
rates as specified in paragraph (a)(1) of
this section. The BLM will use the
most current per acre zone rates to calculate the acreage rent for each year of
the grant term.
(6) The acreage rent must be paid as
described in § 2806.62(a) except for the
initial implementation of the wind energy acreage rent schedule of section
§ 2806.62(c).
(7) You may obtain a copy of the current per acre zone rates for wind energy development (wind energy acreage
rent schedule) from any BLM State,
district, or field office or by writing:
U.S. Department of the Interior, Bureau of Land Management, 20 M Street
SE., Room 2134LM, Attention: Renewable Energy Coordination Office, Washington, DC 20003. The BLM also posts
the current wind energy acreage rent
schedule for wind energy development
at http://www.blm.gov.
(b) MW capacity fee. The MW capacity
fee is calculated by multiplying the approved MW capacity by the MW rate.
You must pay the MW capacity fee annually when electricity generation begins or is scheduled to begin in the approved POD, whichever comes first.
(1) MW rate. The MW rate is calculated by multiplying the total hours
per year by the net capacity factor, by
the MWh price, by the rate of return.
For an explanation of each of these
terms, see the definition of MW rate in
§ 2801.5(b).
(2) MW rate schedule. You may obtain
a copy of the current MW rate schedule
for wind energy development from any
BLM State, district, or field office or
by writing: U.S. Department of the Interior, Bureau of Land Management, 20
M Street SE., Room 2134LM, Attention:
Renewable Energy Coordination Office,
Washington, DC 20003. The BLM also
posts the current MW rate schedule for
wind energy development at http://
www.blm.gov.

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§ 2806.62

43 CFR Ch. II (10–1–20 Edition)

(3) Periodic adjustments in the MW
rate. This paragraph (b)(3) applies unless you selected the scheduled rate adjustment method (see § 2806.61). We will
adjust the MW rate every 5 years, beginning in 2021, by recalculating the
following two components of the MW
rate formula:
(i) The adjusted MWh price is the average of the annual weighted average
wholesale price per MWh for the major
trading hubs serving the 11 Western
States of the continental United States
for the full 5 calendar-year period preceding the adjustment, rounded to the
nearest dollar increment; and
(ii) The adjusted rate of return is the
10-year average of the 20-year U.S.
Treasury bond yield for the full 10 calendar-year period preceding the adjustment, rounded to the nearest one-tenth
percent, with a minimum rate of return of 4 percent.
(4) MW rate phase-in. This paragraph
(b)(4) applies unless you selected the
scheduled rate adjustment method (see
§ 2806.61). If you hold a wind energy development grant, the MW rate will be
phased in as follows:
(i) There is a 3-year phase-in of the
MW rate when electricity generation
begins or is scheduled to begin in the
approved POD, whichever comes first,
at the rates of:
(A) 25 percent for the first year. This
rate applies for the first partial calendar year of operations;
(B) 50 percent for the second year;
and
(C) 100 percent for the third and subsequent years of operations.
(ii) After generation of electricity
starts and an approved POD provides
for staged development:
(A) The 3-year phase-in of the MW
rate applies to each stage of development; and
(B) The MW capacity fee is calculated using the authorized MW capacity approved for that stage, plus
any previously approved stages, multiplied by the MW rate.
(iii) The MW rate may be phased in
further, as described in paragraph (c) of
this section.
(5) The general payment provisions
for rents described in this subpart, except for § 2806.14(a)(4), also apply to the
MW capacity fee.

(c) Initial implementation of the acreage
rent and MW capacity fee. This paragraph (c) applies unless you selected
the scheduled rate adjustment method
(see § 2806.61).
(1) If you hold a wind energy grant
and made payments for billing year
2016, the BLM will reduce by 50 percent
the net increase in annual costs between billing year 2017 and billing year
2016. The net increase will be calculated based on a full calendar year.
(2) If the BLM accepted your application for a wind energy development
grant, including a plan of development
and cost recovery agreement, prior to
September 30, 2014, the BLM will phase
in your payment of the acreage rent
and MW capacity fee by reducing the:
(i) Acreage rent of the grant by 50
percent for the initial partial year of
the grant; and
(ii) MW capacity fee by 75 percent for
the first (initial partial) and second
years and by 50 percent for the third
and fourth years for which the BLM requires payment of the MW capacity
fee. This reduction to the MW capacity
fee applies to each stage of development.
(d) Scheduled rate adjustment. Under
the scheduled rate adjustment (see
§ 2806.61), the BLM will update your per
acre zone rate and MW rate as follows:
(1) The BLM will calculate your payments using the per acre zone rate (see
§ 2806.62(a)(1)) and MW rate (see
§ 2806.62(b)(1)) in place when your grant
is issued, or for existing grants, the per
acre zone rate and MW rate in place
prior to December 19, 2016, as adjusted
under paragraph (d)(6) of this section;
(2) The per acre zone rate will increase:
(i) Annually, beginning after the first
full year plus the initial partial year, if
any, your grant is in effect by the average annual change in the IPD–GDP as
described in § 2806.22(b); and
(ii) Every 5 years, beginning after the
first 5 years, plus the initial partial
year, if any, your grant is in effect, by
20 percent;
(3) The MW rate will increase by 20
percent every 5 years, beginning after
the first 5 years, plus the initial partial
year, if any, your grant is in effect;

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Bureau of Land Management, Interior

§ 2806.64

(4) The BLM will not apply the phasein to your MW rate under § 2806.62(b)(4)
or the reduction under § 2806.62(c); and
(5) If the approved POD for your
project provides for staged development, the BLM will calculate the MW
capacity fee using the MW capacity approved for that stage in question plus
any previously approved stages, multiplied by the MW rate as described
under this section.
(6) For grants in place prior to January 18, 2017 that select the scheduled
rate adjustment method offered under
§ 2806.61(c), the per acre zone rate and
the MW rate in place prior to December
19, 2016 will be adjusted for the first
year’s payment using the scheduled
rate adjustment method as follows:
(i) The per acre zone rate will increase by the average annual change in
the IPD–GDP as described in § 2806.22(b)
plus 20 percent;
(ii) The MW rate will increase by 20
percent; and
(iii) Subsequent increases will be performed as set forth in paragraphs (d)(2)
and (3) of this section from the date of
the initial adjustment under paragraph
(d)(6) of this section.
[81 FR 92220, Dec. 19, 2016]

§ 2806.64 Rents and fees for wind energy development leases.
If you hold a wind energy development lease obtained through competitive bidding under subpart 2809 of this
part, you must make annual payments
in accordance with this section and
subpart, in addition to the one-time, up
front bonus bid you paid to obtain the
lease. The annual payment includes an
acreage rent for the number of acres
included within the wind energy lease
and an additional MW capacity fee
based on the total authorized MW capacity for the approved wind energy
project on the public lands.
(a) Acreage rent. The BLM will calculate and bill you an acreage rent
that must be paid prior to issuance of
your lease as described in § 2806.62(a).
This acreage rent will be based on the
following:
(1)
Per
acre
zone
rate.
See
§ 2806.62(a)(1).
(2) Assignment of counties. See
§ 2806.62(a)(2) and (3).

(3)
Acreage
rent
payment.
See
§ 2806.62(a)(4).
(4) Acreage rent adjustments. This
paragraph (a)(4) applies unless you selected the scheduled rate adjustment
method (see § 2806.61). Once the acreage
rent is determined under § 2806.62(a), no
further adjustments in the annual
acreage rent will be made until year 11
of the lease term and each subsequent
10-year period thereafter. We will use
the per acre zone rates in effect at the
time the acreage rent is due (at the beginning of each 10-year period) to calculate the annual acreage rent for each
of the subsequent 10-year periods.
(b) MW capacity fee. See § 2806.62(b) introductory text and (b)(1), (2), and (3).
(c) MW rate phase-in. This paragraph
(c) applies unless you selected the
scheduled rate adjustment method (see
§ 2806.61). If you hold a wind energy development lease, the MW capacity fee
will be phased in, starting when electricity begins to be generated. The MW
capacity fee for years 1–20 will be calculated using the MW rate in effect
when the lease is issued. The MW capacity fee for years 21–30 will be calculated using the MW rate in effect in
year 21 of the lease. These rates will be
phased-in as follows:
(1) For years 1 through 10 of the
lease, plus any initial partial year, the
MW capacity fee is calculated by multiplying the project’s authorized MW
capacity by 50 percent of the wind energy technology MW rate, as described
in § 2806.62(b)(2);
(2) For years 11 through 20 of the
lease, the MW capacity fee is calculated by multiplying the project’s
authorized MW capacity by 100 percent
of the wind energy technology MW rate
described in § 2806.62(b)(2);
(3) For years 21 through 30 of the
lease, the MW capacity fee is calculated by multiplying the project’s
authorized MW capacity by 100 percent
of the wind energy technology MW rate
as described in § 2806.62(b)(2);
(4) If the lease is renewed, the MW capacity fee is calculated using the MW
rates at the beginning of the renewed
lease period and will remain at that
rate through the initial 10 year period
of the renewal term. The MW capacity
fee will continue to adjust at the beginning of each subsequent 10 year period

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43 CFR Ch. II (10–1–20 Edition)

of the renewed lease term to reflect the
then currently applicable MW rates;
and
(5) If an approved POD provides for
staged development, the MW capacity
fee is calculated using the MW capacity approved for that stage plus any
previously approved stage, multiplied
by the MW rate, as described in this
section.
(d) Scheduled rate adjustment. Under
the scheduled rate adjustment (see
§ 2806.61), the BLM will update your per
acre zone rate and MW rate as follows:
(1) The BLM will calculate your payments using the per acre zone rate (see
§ 2806.62(a)(1)) and MW rate (see
§ 2806.62(b)(1)) in place when your lease
is issued;
(2) The per acre zone rate will increase every 10 years, beginning after
the first 10 years, plus the initial partial year, if any, your lease is in effect,
by the average annual change in the
IPD–GDP for the preceding 10-year period as described in § 2806.22(b) plus 40
percent;
(3) The MW rate will increase by 40
percent every 10 years, beginning after
the first 10 years, plus the initial partial year, if any, your lease is in effect;
(4) The BLM will not apply the phasein to your MW rate under § 2806.62(c).
Instead, for years 1 through 5, plus any
initial partial year, the BLM will calculate the MW capacity fee by multiplying the project’s authorized MW capacity by 50 percent of the applicable
solar technology MW rate. This phasein will not be applied to renewed
leases; and
(5) If the approved POD for your
project provides for staged development, the BLM will calculate the MW
capacity fee using the MW capacity approved for that stage in question plus
any previously approved stages, multiplied by the MW rate as described
under this section.
[81 FR 92220, Dec. 19, 2016]

§ 2806.66 Rent for support facilities authorized under separate grant(s).
If a wind energy development project
includes separate right-of-way authorizations issued for support facilities
only (administration building, groundwater wells, construction lay down and
staging areas, surface water manage-

ment, and control structures, etc.) or
linear right-of-way facilities (pipelines,
roads, power lines, etc.), rent is determined using the Per Acre Rent Schedule for linear facilities (see § 2806.20(c)).
[81 FR 92220, Dec. 19, 2016]

§ 2806.68 Rent for energy development
testing grants.
(a) Grant for energy site-specific testing.
You must pay $100 per year for each
meteorological tower or instrumentation facility location. BLM offices with
approved small site rental schedules
may use those fee structures if the fees
in those schedules charge more than
$100 per meteorological tower per year.
In lieu of annual payments, you may
instead pay for the entire term of the
grant (3 years or less).
(b) Grant for energy project-area testing. You must pay $2,000 per year or $2
per acre per year for the lands authorized by the grant, whichever is greater.
There is no additional rent for the installation of each meteorological tower
or instrumentation facility located
within the site testing and monitoring
project area.
[81 FR 92220, Dec. 19, 2016]

OTHER RIGHTS-OF-WAY
§ 2806.70 How will the BLM determine
the payment for a grant or lease
when the linear, communication
use, solar energy, or wind energy
payment schedules do not apply?
When we determine that the linear,
communication use, solar, or wind energy payment schedules do not apply,
we may determine your payment
through a process based on comparable
commercial practices, appraisals, competitive bids, or other reasonable methods. We will notify you in writing of
the payment determination. If you disagree with the payment determination,
you may appeal our final determination under § 2801.10.
[81 FR 92222, Dec. 19, 2016]

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§ 2807.12

Subpart 2807—Grant
Administration and Operation
§ 2807.10 When can I start activities
under my grant?
When you can start depends on the
terms of your grant. You can start activities when you receive the grant you
and BLM signed, unless the grant includes a requirement for BLM to provide a written Notice to Proceed. If
your grant contains a Notice to Proceed requirement, you may not initiate
construction, operation, maintenance,
or termination until BLM issues you a
Notice to Proceed.
§ 2807.11 When must I contact BLM
during operations?
You must contact BLM:
(a) At the times specified in your
grant;
(b) When your use requires a substantial deviation from the grant. You
must seek an amendment to your grant
under § 2807.20 and obtain the BLM’s approval before you begin any activity
that is a substantial deviation;
(c) When there is a change affecting
your application or grant, including,
but not limited to, changes in:
(1) Mailing address;
(2) Partners;
(3) Financial conditions; or
(4) Business or corporate status;
(d)
Whenever
site-specific
circumstances or conditions result in the
need for changes to an approved rightof-way grant or lease, POD, site plan,
mitigation measures, or construction,
operation, or termination procedures
that are not substantial deviations in
location or use authorized by a rightof-way grant or lease. Changes for authorized actions, project materials, or
adopted mitigation measures within
the existing, approved right-of-way
area must be submitted to us for review and approval;
(e) To identify and correct discrepancies or inconsistencies;
(f) When you submit a certification
of construction, if the terms of your
grant require it. A certification of construction is a document you submit to
BLM after you have finished constructing a facility, but before you
begin operating it, verifying that you
have constructed and tested the facil-

ity to ensure that it complies with the
terms of the grant and with applicable
Federal and state laws and regulations;
or
(g) When BLM requests it. You must
update information or confirm that information you submitted before is accurate.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92222, Dec. 19, 2016]

§ 2807.12 If I hold a grant, for what am
I liable?
(a) If you hold a grant, you are liable
to the United States and to third parties for any damage or injury they
incur in connection with your use and
occupancy of the right-of-way.
(b) You are strictly liable for any activity or facility associated with your
right-of-way area which BLM determines presents a foreseeable hazard or
risk of damage or injury to the United
States. BLM will specify in the grant
any activity or facility posing such
hazard or risk, and the financial limitations on damages commensurate
with such hazard or risk.
(1) BLM will not impose strict liability for damage or injury resulting primarily from an act of war, an act of
God, or the negligence of the United
States, except as otherwise provided by
law.
(2) As used in this section, strict liability extends to costs incurred by the
Federal government to control or abate
conditions, such as fire or oil spills,
which threaten life, property, or the
environment, even if the threat occurs
to areas that are not under Federal jurisdiction. This liability is separate
and apart from liability under other
provisions of law.
(3) You are strictly liable to the
United States for damage or injury up
to $2 million for any one incident. BLM
will update this amount annually to
adjust for changes in the Consumer
Price Index for All Urban Consumers,
U.S. City Average (CPI-U) as of July of
each year (difference in CPI-U from
July of one year to July of the following year), rounded to the nearest
$1,000. This financial limitation does
not apply to the release or discharge of
hazardous substances on or near the
grant, or where liability is otherwise

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§ 2807.13

43 CFR Ch. II (10–1–20 Edition)

not subject to this financial limitation
under applicable law.
(4) BLM will determine your liability
for any amount in excess of the $2 million strict liability limitation (as adjusted) through the ordinary rules of
negligence.
(5) The rules of subrogation apply in
cases where a third party caused the
damage or injury.
(c) If you cannot satisfy claims for
injury or damage, all owners of any interests in, and all affiliates or subsidiaries of any holder of, a grant, except
for corporate stockholders, are jointly
and severally liable to the United
States.
(d) If BLM issues a grant to more
than one person, each is jointly and
severally liable.
(e) By accepting the grant, you agree
to fully indemnify or hold the United
States harmless for liability, damage,
or claims arising in connection with
your use and occupancy of the right-ofway area.
(f) We address liability of state, tribal, and local governments in § 2807.13 of
this subpart.
(g) The provisions of this section do
not limit or exclude other remedies.

nection with your use and occupancy of
the right-of-way.
(c) Based on your record of compliance and changes in risk and conditions, BLM may require you to increase or decrease the amount of your
bond, insurance, or security.
(d) The provisions of this section do
not limit or exclude other remedies.

§ 2807.13 As grant holders, what liabilities do state, tribal, and local governments have?

(a) If there is a proposal to transfer
the land your grant encumbers to another Federal agency, BLM may, after
reasonable notice to you, transfer administration of your grant for the
lands BLM formerly administered to
another Federal agency, unless doing
so would diminish your rights. If BLM
determines your rights would be diminished by such a transfer, BLM can still
transfer the land, but retain administration of your grant under existing
terms and conditions.
(b) The BLM will provide reasonable
notice to you if there is a proposal to
transfer the land your grant encumbers
out of Federal ownership. If you request, the BLM will negotiate new
grant terms and conditions with you.
This may include increasing the term
of your grant to a perpetual grant or
providing for an easement. These
changes, if any, become effective prior
to the time the land is transferred out
of Federal ownership. The BLM may
then, in conformance with existing
policies and procedures:

(a) If you are a state, tribal, or local
government or its agency or instrumentality, you are liable to the fullest
extent law allows at the time that
BLM issues your grant. If you do not
have the legal power to assume full liability, you must repair damages or
make restitution to the fullest extent
of your powers.
(b) BLM may require you to provide
a bond, insurance, or other acceptable
security to:
(1) Protect the liability exposure of
the United States to claims by third
parties arising out of your use and occupancy of the right-of-way;
(2) Cover any losses, damages, or injury to human health, the environment, and property incurred in connection with your use and occupancy of
the right-of-way; and
(3) Cover any damages or injuries resulting from the release or discharge of
hazardous materials incurred in con-

§ 2807.14 How will BLM notify me if
someone else wants a grant for land
subject to my grant or near or adjacent to it?
BLM will notify you in writing when
it receives a grant application for land
subject to your grant or near or adjacent to it. BLM will consider your
written recommendations as to how
the proposed use affects the integrity
of, or your ability to operate, your facilities. The notice will contain a time
period within which you must respond.
The notice may also notify you of additional opportunities to comment.
§ 2807.15 How is grant administration
affected if the land my grant encumbers is transferred to another
Federal agency or out of Federal
ownership?

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Bureau of Land Management, Interior

§ 2807.18

(1) Transfer the land subject to your
grant or easement. In this case, administration of your grant or easement for
the lands BLM formerly administered
is transferred to the new owner of the
land;
(2) Transfer the land, but BLM retains administration of your grant or
easement; or
(3) Reserve to the United States the
land your grant or easement encumbers, and BLM retains administration
of your grant or easement.
(c) You and the new land owner may
agree to negotiate new grant terms and
conditions any time after the land encumbered by your grant is transferred
out of Federal ownership.
[70 FR 21058, Apr. 22, 2005, as amended at 73
FR 65073, Oct. 31, 2008]

§ 2807.16 Under what conditions may
BLM order an immediate temporary suspension of my activities?
(a) If BLM determines that you have
violated one or more of the terms, conditions, or stipulations of your grant,
we can order an immediate temporary
suspension of activities within the
right-of-way area to protect public
health or safety or the environment.
BLM can require you to stop your activities before holding an administrative proceeding on the matter.
(b) BLM may issue the immediate
temporary suspension order orally or
in writing to you, your contractor or
subcontractor, or to any representative, agent, or employee representing
you or conducting the activity. When
you receive the order, you must stop
the activity immediately. BLM will, as
soon as practical, confirm an oral order
by sending or hand delivering to you or
your agent at your address a written
suspension order explaining the reasons for it.
(c) You may file a written request for
permission to resume activities at any
time after BLM issues the order. In the
request, give the facts supporting your
request and the reasons you believe
that BLM should lift the order. BLM
must grant or deny your request within
5 business days after receiving it. If
BLM does not respond within 5 business days, BLM has denied your request. You may appeal the denial under
§ 2801.10 of this part.

(d) The immediate temporary suspension order is effective until you receive
BLM’s written notice to proceed with
your activities.
§ 2807.17 Under what conditions may
BLM suspend or terminate my
grant?
(a) BLM may suspend or terminate
your grant if you do not comply with
applicable laws and regulations or any
terms, conditions, or stipulations of
the grant (such as rent payments), or if
you abandon the right-of-way.
(b) A grant also terminates when:
(1) The grant contains a term or condition that has been met that requires
the grant to terminate;
(2) BLM consents in writing to your
request to terminate the grant; or
(3) It is required by law to terminate.
(c) Your failure to use your right-ofway for its authorized purpose for any
continuous 5-year period creates a presumption of abandonment. BLM will
notify you in writing of this presumption. You may rebut the presumption
of abandonment by proving that you
used the right-of-way or that your failure to use the right-of-way was due to
circumstances beyond your control,
such as acts of God, war, or casualties
not attributable to you.
(d) The BLM may suspend or terminate another Federal agency’s grant
only if:
(1) The terms and conditions of the
Federal agency’s grant allow it; or
(2) The agency head holding the
grant consents to it.
(e) You may appeal a decision under
this section under § 2801.10 of this part.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92223, Dec. 19, 2016]

§ 2807.18 How will I know that BLM
intends to suspend or terminate my
grant?
(a) Before BLM suspends or terminates your grant under § 2807.17(a) of
this subpart, it will send you a written
notice stating that it intends to suspend or terminate your grant and giving the grounds for such action. The
notice will give you a reasonable opportunity to correct any noncompliance or start or resume use of the
right-of-way, as appropriate.

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§ 2807.19

43 CFR Ch. II (10–1–20 Edition)

(b) To suspend or terminate a grant
issued as an easement, BLM must give
you written notice and refer the matter to the Office of Hearings and Appeals for a hearing before an ALJ under
5 U.S.C. 554. No hearing is required if
the grant provided by its terms for termination on the occurrence of a fixed
or agreed upon condition, event, or
time. If the ALJ determines that
grounds for suspension or termination
exist and such action is justified, BLM
will suspend or terminate the grant.
§ 2807.19 When my grant terminates,
what happens to any facilities on
it?
(a) After your grant terminates, you
must remove any facilities within the
right-of-way within a reasonable time,
as determined by BLM, unless BLM instructs you otherwise in writing, or
termination is due to non-payment of
rent (see § 2806.13(c) of this part).
(b) After removing the facilities, you
must remediate and restore the rightof-way area to a condition satisfactory
to BLM, including the removal and
clean up of any hazardous materials.
(c) If you do not remove all facilities
within a reasonable period as determined by BLM, BLM may declare them
to be the property of the United States.
However, you are still liable for the
costs of removing them and for remediating and restoring the right-of-way
area.
§ 2807.20 When must I amend my application, seek an amendment of my
grant, or obtain a new grant?
(a) You must amend your application
or seek an amendment of your grant
when there is a proposed substantial
deviation in location or use.
(b) The requirements to amend an application or grant are the same as
those for a new application, including
paying processing and monitoring fees
and rent according to §§ 2804.14, 2805.16,
and 2806.10 of this part.
(c) Any activity not authorized by
your grant may subject you to prosecution under applicable law and to trespass charges under subpart 2808 of this
part.
(d) If your grant was issued prior to
October 21, 1976, and there is a proposed
substantial deviation in the location or

use or terms and conditions of your
right-of-way grant, you must apply for
a new grant consistent with the remainder of this section. BLM may respond to your request in one of the following ways:
(1) If BLM approves your application,
BLM will terminate your old grant and
you will receive a new grant under 43
U.S.C. 1761 et seq. and the regulations
in this part. BLM may include the
same terms and conditions in the new
grant as were in the original grant as
to annual rent, duration, and nature of
interest if BLM determines, based on
current land use plans and other management decisions, that it is in the
public interest to do so; or
(2) Alternatively, BLM may keep the
old grant in effect and issue a new
grant for the new use or location, or
terms and conditions.
(e) You must apply for a new grant to
allow realignment of your railroad and
appurtenant communication facilities.
BLM must issue a decision within 6
months after it receives your complete
application. BLM may include the
same terms and conditions in the new
grant as were in the original grant as
to annual rent, duration, and nature of
interest if:
(1) These terms are in the public interest;
(2) The lands are of approximately
equal value; and
(3) The lands involved are not within
an incorporated community.
§ 2807.21 May I assign or make other
changes to my grant or lease?
(a) With the BLM’s approval, you
may assign, in whole or in part, any
right or interest in a grant or lease.
Assignment actions that may require
BLM approval include, but are not limited to, the following:
(1) The transfer by the holder (assignor) of any right or interest in the
grant or lease to a third party (assignee); and
(2) Changes in ownership or other related change in control transactions
involving the BLM right-of-way holder
and another business entity (assignee),
including corporate mergers or acquisitions, but not transactions within the
same corporate family.

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Bureau of Land Management, Interior

§ 2807.21

(b) The BLM may require a grant or
lease holder to file new or revised information in some circumstances that
do not constitute an assignment (see
subpart 2803 and §§ 2804.12(e) and
2807.11). Circumstances that would not
constitute an assignment but may necessitate this filing include, but are
not limited to:
(1) Transactions within the same corporate family;
(2) Changes in the holder’s name only
(see paragraph (h) of this section); and
(3) Changes in the holder’s articles of
incorporation.
(c) In order to assign a grant or lease,
the proposed assignee must file an assignment application and follow the
same procedures and standards as for a
new grant or lease, including paying
application and processing fees, and
the grant must be in compliance with
the terms and conditions of § 2805.12.
The preliminary application review
meetings and public meeting under
§§ 2804.12 and 2804.25 are not required for
an assignment. We will not approve
any assignment until the assignor
makes any outstanding payments that
are due (see § 2806.13(g)).
(d) The assignment application must
also include:
(1) Documentation that the assignor
agrees to the assignment; and
(2) A signed statement that the proposed assignee agrees to comply with
and be bound by the terms and conditions of the grant that is being assigned and all applicable laws and regulations.
(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. Except for leases issued under subpart
2809 of this part, 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,
unless a modification to a lease issued
under subpart 2809 of this part is required under § 2805.15(e). We may decrease rents if the new holder qualifies
for an exemption (see § 2806.14) or waiver or reduction (see § 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 lease
holder.
(f) The processing time and conditions described at § 2804.25(d) of this
part apply to assignment applications.
(g) Only interests in issued right-ofway grants and leases are assignable.
Except for applications submitted by a
preferred applicant under § 2804.30(g),
pending right-of-way applications do
not create any property rights or other
interest and may not be assigned from
one entity to another, except that an
entity with a pending application may
continue to pursue that application
even if that entity becomes a wholly
owned subsidiary of a new third party.
(h) To complete a change in name
only, (i.e., when the name change in
question is not the result of an underlying change in control of the right-ofway grant), the following requirements
must be met:
(1) The holder must file an application requesting a name change and follow the same procedures as for a new
grant, including paying processing fees.
However, the application fees (see subpart 2804 of this part) and the preliminary application review and public
meetings (see §§ 2804.12 and 2804.25) are
not required. The name change request
must include:
(i) If the name change is for an individual, a copy of the court order or
other legal document effectuating the
name change; or
(ii) If the name change is for a corporation, a copy of the corporate resolution(s) proposing and approving the
name change, a copy of the acceptance
of the change in name by the State or
Territory in which it is incorporated,
and a copy of the appropriate resolution, order or other documentation
showing the name change.
(2) When reviewing a proposed name
change only, we may determine it is
necessary to:
(i) Modify a grant issued under subpart 2804 to add bonding and other requirements, including additional terms
and conditions to the grant; or
(ii) Modify a lease issued under subpart 2809 in accordance with § 2805.15(e).

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§ 2807.22

43 CFR Ch. II (10–1–20 Edition)

(3) Your name change is not recognized until the BLM approves it in
writing.
[81 FR 92223, Dec. 19, 2016]

§ 2807.22 How do I renew my grant or
lease?
(a) If your grant or lease specifies the
terms and conditions for its renewal,
and you choose to renew it, you must
request a renewal from the BLM at
least 120 calendar days before your
grant or lease expires consistent with
the renewal terms and conditions specified in your grant or lease. We will
renew the grant or lease if you are in
compliance with the renewal terms and
conditions; the other terms, conditions, and stipulations of the grant or
lease; and other applicable laws and
regulations.
(b) If your grant or lease does not
specify the terms and conditions for its
renewal, you may apply to us to renew
the grant or lease. You must send us
your application at least 120 calendar
days before your grant or lease expires.
In your application you must show
that you are in compliance with the
terms, conditions, and stipulations of
the grant or lease and other applicable
laws and regulations, and explain why
a renewal of your grant or lease is necessary. We may approve or deny your
application to renew your grant or
lease.
(c) Submit your application under
paragraph (a) or (b) of this section and
include the same information necessary for a new application (see subpart 2804 of this part). You must reimburse BLM in advance for the administrative costs of processing the renewal
in accordance with § 2804.14 of this part.
(d) We will review your application
and determine the applicable terms
and conditions of any renewed grant or
lease.
(e) BLM will not renew grants issued
before October 21, 1976. If you hold such
a grant and would like to continue to
use the right-of-way beyond your
grant’s expiration date, you must
apply to BLM for a new FLPMA grant
(see subpart 2804 of this part). You must
send BLM your application at least 120
calendar days before your grant expires.

(f) If you make a timely and sufficient application for a renewal of your
existing grant or lease, or for a new
grant or lease, in accordance with this
section, the existing grant does not expire until we have issued a decision to
approve or deny the application.
(g) If BLM denies your application,
you may appeal the decision under
§ 2801.10 of this part.
[70 FR 21058, Apr. 22, 2005, as amended at 81
FR 92223, Dec. 19, 2016]

Subpart 2808—Trespass
§ 2808.10

What is trespass?

(a) Trespass is using, occupying, or
developing the public lands or their resources without a required authorization or in a way that is beyond the
scope and terms and conditions of your
authorization. Trespass is a prohibited
act.
(b) Trespass includes acts or omissions causing unnecessary or undue
degradation to the public lands or their
resources. In determining whether such
degradation is occurring, BLM may
consider the effects of the activity on
resources and land uses outside the
area of the activity.
(c) There are two kinds of trespass,
willful and non-willful.
(1) Willful trespass is voluntary or
conscious trespass and includes trespass committed with criminal or malicious intent. It includes a consistent
pattern of actions taken with knowledge, even if those actions are taken in
the belief that the conduct is reasonable or legal.
(2) Non-willful trespass is trespass
committed by mistake or inadvertence.
§ 2808.11 What will BLM do if it determines that I am in trespass?
(a) BLM will notify you in writing of
the trespass and explain your liability.
Your liability includes:
(1) Reimbursing the United States for
all costs incurred in investigating and
terminating the trespass;
(2) Paying the rental for the lands, as
provided for in subpart 2806 of this
part, for the current and past years of
trespass, or, where applicable, the cumulative value of the current use fee,
amortization fee, and maintenance fee

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§ 2809.11

for unauthorized use of any BLM-administered road; and
(3) Rehabilitating and restoring any
damaged lands or resources. If you do
not rehabilitate and restore the lands
and resources within the time set by
BLM in the notice, you will be liable
for the costs the United States incurs
in rehabilitating and restoring the
lands and resources.
(b) In addition to amounts you owe
under paragraph (a) of this section,
BLM may assess penalties as follows:
(1) For willful or repeated non-willful
trespass, the penalty is two times the
rent. For roads, the penalty is two
times the charges for road use, amortization, and maintenance which have
accrued since the trespass began.
(2) For non-willful trespass not resolved within 30 calendar days after receiving the written notice under paragraph (a) of this section, the penalty is
an amount equal to the rent. To resolve the trespass you must meet one
of the conditions identified in 43 CFR
9239.7–1. For roads, the penalty is an
amount equal to the charges for road
use, amortization, and maintenance
which have accrued since the trespass
began.
(c) The penalty will not be less than
the fee for a Processing Category 2 application (see § 2804.14 of this part) for
non-willful trespass or less than three
times this amount for willful or repeated non-willful trespass. You must
pay whichever is the higher of:
(1) The amount computed in paragraph (b) of this section; or
(2) The minimum penalty amount in
paragraph (c) of this section.
(d) In addition to civil penalties
under paragraph (b) of this section, you
may be tried before a United States
magistrate judge and fined no more
than $1,000 or imprisoned for no more
than 12 months, or both, for a knowing
and willful trespass, as provided at 43
CFR 9262.1 and 43 U.S.C. 1733(a).
(e) Until you comply with the requirements of 43 CFR 9239.7–1, BLM
will not process any of your applications for any activities on BLM lands.
(f) You may appeal a trespass decision under § 2801.10 of this part.
(g) Nothing in this section limits
your liability under any other Federal
or state law.

§ 2808.12 May I receive a grant if I am
or have been in trespass?
Until you satisfy your liability for a
trespass, BLM will not process any applications you have pending for any activity on BLM-administered lands. A
history of trespass will not necessarily
disqualify you from receiving a grant.
In order to correct a trespass, you must
apply under the procedures described
at subpart 2804 of this part. BLM will
process your application as if it were a
new use. Prior unauthorized use does
not create a preference for receiving a
grant.

Subpart 2809—Competitive Process for Leasing Public Lands
for Solar and Wind Energy Development Inside Designated
Leasing Areas
SOURCE: 81 FR 92224, Dec. 19, 2016, unless
otherwise noted.

§ 2809.10 General.
(a) Lands inside designated leasing
areas may be made available for solar
and wind energy development through
a competitive leasing offer process established by the BLM under this subpart.
(b) The BLM may include lands in a
competitive offer on its own initiative.
(c) The BLM may solicit nominations
by publishing a call for nominations
under § 2809.11(a).
(d) The BLM will generally prioritize
the processing of ‘‘leases’’ awarded
under this subpart over the processing
of non-competitive ‘‘grant’’ applications under subpart 2804, including
those that are ‘‘high priority’’ under
§ 2804.35.
§ 2809.11 How will the BLM solicit
nominations?
(a) Call for nominations. The BLM will
publish a notice in the FEDERAL REGISTER and may use other notification
methods, such as a newspaper of general circulation in the area affected by
the potential offer of public land for
solar and wind energy development or
the Internet; to solicit nominations
and expressions of interest for parcels
of land inside designated leasing areas
for solar or wind energy development.

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§ 2809.12

43 CFR Ch. II (10–1–20 Edition)

(b) Nomination submission. A nomination must be in writing and must include the following:
(1) Nomination fee. If you nominate a
specific parcel of land under paragraph
(a) of this section, you must also include a non-refundable nomination fee
of $5 per acre. We will adjust the nomination fee once every 10 years using
the change in the IPD–GDP for the preceding 10-year period and round it to
the nearest half dollar. This 10 year average will be adjusted at the same time
as the per acre rent schedule for linear
rights-of-way under § 2806.22;
(2) Nominator’s name and personal or
business address. The name of only one
citizen, association, partnership, corporation, or municipality may appear
as the nominator. All communications
relating to leasing will be sent to that
name and address, which constitutes
the nominator’s name and address of
record; and
(3) The legal land description and a
map of the nominated lands.
(c) We may consider informal expressions of interest suggesting lands to be
included in a competitive offer. If you
submit a written expression of interest,
you must provide a description of the
suggested lands and rationale for their
inclusion in a competitive offer.
(d) In order to submit a nomination,
you must be qualified to hold a grant
or lease under § 2803.10.
(e) Nomination withdrawals. A nomination cannot be withdrawn, except by
the BLM for cause, in which case all
nomination monies will be refunded to
the nominator.
§ 2809.12 How will the BLM select and
prepare parcels?
(a) The BLM will identify parcels for
competitive offer based on nominations
and expressions of interest or on its
own initiative.
(b) The BLM and other Federal agencies, as applicable, will conduct necessary studies and site evaluation
work, including applicable environmental reviews and public meetings,
before offering lands competitively.
§ 2809.13 How will the BLM conduct
competitive offers?
(a) Variety of competitive procedures
available. The BLM may use any type

of competitive process or procedure to
conduct its competitive offer, and any
method, including the use of the Internet, to conduct the actual auction or
competitive bid procedure. Possible bid
procedures could include, but are not
limited to: Sealed bidding, oral auctions, modified competitive bidding,
electronic bidding, and any combination thereof.
(b) Notice of competitive offer. We will
publish a notice in the FEDERAL REGISTER at least 30 days prior to the competitive offer and may use other notification methods, such as a newspaper of
general circulation in the area affected
by the potential right-of-way or the
Internet. The FEDERAL REGISTER and
other notices will include:
(1) The date, time, and location, if
any, of the competitive offer;
(2) The legal land description of the
parcel to be offered;
(3) The bidding methodology and procedures to be used in conducting the
competitive offer, which may include
any of the competitive procedures
identified in paragraph (a) of this section;
(4) The minimum bid required (see
§ 2809.14(a)), including an explanation of
how we determined this amount;
(5) The qualification requirements
for potential bidders (see § 2803.10);
(6) If a variable offset (see § 2809.16) is
offered:
(i) The percent of each offset factor;
(ii) How bidders may pre-qualify for
each offset factor; and
(iii) The documentation required to
pre-qualify for each offset factor; and
(7) The terms and conditions of the
lease, including the requirements for
the successful bidder to submit a POD
for the lands involved in the competitive offer (see § 2809.18) and any lease
mitigation requirements, including
compensatory mitigation for residual
impacts associated with the right-ofway.
(c) We will notify you in writing of
our decision to conduct a competitive
offer at least 30 days prior to the competitive offer if you nominated lands
and paid the nomination fees required
by § 2809.11(b)(1).

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Bureau of Land Management, Interior

§ 2809.16

§ 2809.14 What types of bids are acceptable?
(a) Bid submissions. The BLM will accept your bid only if:
(1) It includes the minimum bid and
at least 20 percent of the bonus bid; and
(2) The BLM determines that you are
qualified to hold a grant or lease under
§ 2803.10. You must include documentation of your qualifications with your
bid, unless we have previously approved
your
qualifications
under
§ 2809.10(d) or § 2809.11(d).
(b) Minimum bid. The minimum bid is
not prorated among all bidders, but
must be paid entirely by the successful
bidder. The minimum bid consists of:
(1) The administrative costs incurred
by the BLM and other Federal agencies
in preparing for and conducting the
competitive offer, including required
environmental reviews; and
(2) An amount determined by the authorized officer and disclosed in the notice of competitive offer. This amount
will be based on known or potential
values of the parcel. In setting this
amount, the BLM will consider factors
that include, but are not limited to,
the acreage rent and megawatt capacity fee.
(c) Bonus bid. The bonus bid consists
of any dollar amount that a bidder
wishes to bid in addition to the minimum bid.
(d) If you are not the successful bidder, as defined in § 2809.15(a), the BLM
will refund your bid.
§ 2809.15 How will the BLM select the
successful bidder?
(a) The bidder with the highest total
bid, prior to any variable offset, is the
successful bidder and may be offered a
lease in accordance with § 2805.10.
(b) The BLM will determine the variable offsets for the successful bidder in
accordance with § 2809.16 before issuing
final payment terms.
(c) Payment terms. If you are the successful bidder, you must:
(1) Make payments by personal
check, cashier’s check, certified check,
bank draft, or money order, or by other
means deemed acceptable by the BLM,
payable to the Department of the Interior—Bureau of Land Management;
(2) By the close of official business
hours on the day of the offer or such

other time as the BLM may have specified in the offer notices, submit for
each parcel:
(i) Twenty percent of the bonus bid
(before the offsets are applied under
paragraph (b) of this section); and
(ii) The total amount of the minimum bid specified in § 2809.14(b);
(3) Within 15 calendar days after the
day of the offer, submit the balance of
the bonus bid (after the variable offsets
are applied under paragraph (b) of this
section) to the BLM office conducting
the offer; and
(4) Within 15 calendar days after the
day of the offer, submit the acreage
rent for the first full year of the solar
or wind energy development lease as
provided in § 2806.54(a) or § 2806.64(a), respectively. This amount will be applied
toward the first 12 months acreage
rent, if the successful bidder becomes
the lessee.
(d) The BLM will offer you a right-ofway lease if you are the successful bidder and:
(1) Satisfy the qualifications in
§ 2803.10;
(2) Make the payments required
under paragraph (c) of this section; and
(3) Do not have any trespass action
pending against you for any activity on
BLM-administered lands (see § 2808.12)
or have any unpaid debts owed to the
Federal Government.
(e) The BLM will not offer a lease to
the successful bidder and will keep all
money that has been submitted, if the
successful bidder does not satisfy the
requirements of paragraph (d) of this
section. In this case, the BLM may
offer the lease to the next highest bidder under § 2809.17(b) or re-offer the
lands under § 2809.17(d).
§ 2809.16 When
apply?

do

variable

(a) The successful bidder may be eligible for an offset of up to 20 percent of
the bonus bid based on the factors identified in the notice of competitive
offer.
(b) The BLM may apply a variable
offset to the bonus bid of the successful
bidder. The notice of competitive offer
will identify each factor of the variable
offset, the specific percentage for each
factor that would be applied to the

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§ 2809.17

43 CFR Ch. II (10–1–20 Edition)

bonus bid, and the documentation required to be provided to the BLM prior
to the day of the offer to qualify for
the offset. The total variable offset
cannot be greater than 20 percent of
the bonus bid.
(c) The variable offset may be based
on any of the following factors:
(1) Power purchase agreement;
(2) Large generator interconnect
agreement;
(3) Preferred solar or wind energy
technologies;
(4) Prior site testing and monitoring
inside the designated leasing area;
(5) Pending applications inside the
designated leasing area;
(6) Submission of nomination fees;
(7) Submission of biological opinions,
strategies, or plans;
(8) Environmental benefits;
(9) Holding a solar or wind energy
grant or lease on adjacent or mixed
land ownership;
(10) Public benefits; and
(11) Other similar factors.
(d) The BLM will determine your
variable offset prior to the competitive
offer.
§ 2809.17 Will the BLM ever reject bids
or re-conduct a competitive offer?
(a) The BLM may reject bids regardless of the amount offered. If the BLM
rejects your bid under this provision,
you will be notified in writing and such
notice will include the reason(s) for the
rejection and what refunds to which
you are entitled. If the BLM rejects a
bid, the bidder may appeal that decision under § 2801.10.
(b) We may offer the lease to the next
highest qualified bidder if the successful bidder does not execute the lease or
is for any reason disqualified from
holding the lease.
(c) If we are unable to determine the
successful bidder, such as in the case of
a tie, we may re-offer the lands competitively (under § 2809.13) to the tied
bidders or to all prospective bidders.
(d) If lands offered under § 2809.13 receive no bids, we may:
(1) Re-offer the lands through the
competitive process under § 2809.13; or
(2) Make the lands available through
the non-competitive application process found in subparts 2803, 2804, and 2805

of this part, if we determine that doing
so is in the public interest.
§ 2809.18 What terms and conditions
apply to leases?
The lease will be issued subject to
the following terms and conditions:
(a) Lease term. The term of your lease
includes the initial partial year in
which it is issued, plus 30 additional
full years. The lease will terminate on
December 31 of the final year of the
lease term. You may submit an application for renewal under § 2805.14(g).
(b) Rent. You must pay rent as specified in:
(1) Section 2806.54, if your lease is for
solar energy development; or
(2) Section 2806.64, if your lease is for
wind energy development.
(c) POD. You must submit, within 2
years of the lease issuance date, a POD
that:
(1) Is consistent with the development schedule and other requirements
in the POD template posted at http://
www.blm.gov; and
(2) Addresses all pre-development and
development activities.
(d) Cost recovery. You must pay the
reasonable costs for the BLM or other
Federal agencies to review and approve
your POD and to monitor your lease.
To expedite review of your POD and
monitoring of your lease, you may notify BLM in writing that you are
waiving paying reasonable costs and
are electing to pay the full actual costs
incurred by the BLM.
(e) Performance and reclamation bond.
(1) For Solar Energy Development, you
must provide a bond in the amount of
$10,000 per acre prior to written approval to proceed with ground disturbing activities.
(2) For Wind Energy Development,
you must provide a bond in the amount
of $10,000 per authorized turbine less
than 1 MW in nameplate capacity or
$20,000 per authorized turbine equal or
greater than 1 MW in nameplate capacity prior to written approval to proceed
with ground disturbing activities.
(3) For testing and monitoring sites
authorized under a development lease,
you must provide a bond in the amount
of $2,000 per site prior to receiving
written approval to proceed with
ground disturbing activities.

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Bureau of Land Management, Interior

Pt. 2810

(4) The BLM will adjust the solar and
wind
energy
development
bond
amounts every 10 years using the
change in the IPD–GDP for the preceding 10-year period rounded to the
nearest $100. This 10-year average will
be adjusted at the same time as the Per
Acre Rent Schedule for linear rightsof-way under § 2806.22.
(f) Assignments. You may assign your
lease under § 2807.21, and if an assignment is approved, the BLM will not
make any changes to the lease terms
or conditions, as provided for by
§ 2807.21(e) except for modifications required under § 2805.15(e).
(g) Due diligence of operations. You
must start construction within 5 years
and begin generation of electricity no
later than 7 years from the date of
lease issuance, as specified in your approved POD. A request for an extension
may be granted for up to 3 years with
a show of good cause and approval by
the BLM.

(b) An applicant that submits a bid
on a parcel of land for which an application is pending under paragraph
(a)(2) of this section may:
(1) Qualify for a variable offset under
§ 2809.16; and
(2) Receive a refund for any unused
application fees or processing costs if
the lands identified in the application
are subsequently leased to another entity under § 2809.13.
(c) After the effective date of this
regulation, the BLM will not accept a
new application for solar or wind energy development inside designated
leasing areas (see §§ 2804.12(b)(1) and
2804.23(e)), except as provided by
§ 2809.17(d)(2).
(d) You may file a new application
under part 2804 for testing and monitoring purposes inside designated leasing areas. If the BLM approves your application, you will receive a short term
grant
in
accordance
with
§ 2805.11(b)(2)(i) or (ii), which may qualify you for an offset under § 2809.16.

§ 2809.19 Applications in designated
leasing areas or on lands that later
become designated leasing areas.
(a) Applications for solar or wind energy development filed on lands outside of designated leasing areas, which
subsequently become designated leasing areas will:
(1) Continue to be processed by the
BLM and are not subject to the competitive leasing offer process of this
subpart, if such applications are filed
prior to the publication of the notice of
intent or other public announcement
from the BLM of the proposed land use
plan amendment to designate the solar
or wind leasing area; or
(2) Remain in pending status unless
withdrawn by the applicant, denied, or
issued a grant by the BLM, or the subject lands become available for application or leasing under this part, if such
applications are filed on or after the
date of publication of the notice of intent or other public announcement
from the BLM of the proposed land use
plan amendment to designate the solar
or wind leasing area.
(3) Resume being processed by the
BLM if your application is pending
under paragraph (a)(2) of this section
and the lands become available for application under § 2809.17(d)(2).

PART 2810—TRAMROADS AND
LOGGING ROADS
Subpart 2812—Over O. and C. and Coos
Bay Revested Lands
Sec.
2812.0–3 Authority.
2812.0–5 Definitions.
2812.0–6 Statement of policy.
2812.0–7 Cross reference.
2812.0–9 Information collection.
2812.1 Application procedures.
2812.1–1 Filing.
2812.1–2 Contents.
2812.1–3 Unauthorized use, occupancy, or development.
2812.2 Nature of permit.
2812.2–1 Nonexclusive license.
2812.2–2 Right of permittee to authorize use
by third parties.
2812.2–3 Construction in advance of permit.
2812.3 Right-of-way and road use agreement.
2812.3–1 Rights over lands controlled by applicant.
2812.3–2 Other roads and rights-of-way controlled by applicant.
2812.3–3 Form of grant to the United States,
recordation.
2812.3–4 Where no road use agreement is required.
2812.3–5 Use by the United States and its licensees of rights received from a permittee.
2812.3–6 Duration and location of rights
granted or received by the United States.

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