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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 2800, 2860, 2880, and
2920
[BLM_HQ_FRN_MO4500175819]
RIN 1004–AE60

Update of the Communications Uses
Program, Cost Recovery Fee
Schedules, and Section 512 of FLPMA
for Rights-of-Way
Bureau of Land Management,
Interior.
ACTION: Final rule.
AGENCY:

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

SUMMARY:

The final rule is effective on May
13, 2024.
FOR FURTHER INFORMATION CONTACT:
Stephen Fusilier, Branch Chief, Rightsof-Way, telephone: 202–309–3209,
email: sfuslie@blm.gov, or by mail 1849
C St. NW, Washington, DC 20240, for
information regarding the substance of
this final rule.
Individuals in the United States who
are deaf, blind, hard of hearing, or have
a speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States. For a
summary of the final rule, please see the
final rule summary document in docket
BLM–2022–0002 on
www.regulations.gov.
DATES:

SUPPLEMENTARY INFORMATION:

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

I. Executive Summary
This final rule addresses three distinct
areas: communications uses; cost
recovery; and operations, maintenance,
and fire prevention plans for powerline
ROWs. The final rule revises certain
regulatory provisions related to
communications use ROWs authorized

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under FLPMA. The BLM administers
approximately 1,500 communications
sites on BLM lands. By making it easier
for industry to collocate in and on
existing communications facilities or
build out new communications
infrastructure on public lands, the BLM
can play a strong role in increasing
connectivity throughout the United
States. The communication uses portion
of the final rule:
• Requires the BLM to grant or deny
communications uses ROW, easement,
or lease applications within 270 days;
• Provides for electronic filing of
communications uses ROW
applications; and
• Requires Standard Form-299 (SF–
299) as the common form for
communications uses grant
applications.
The final rule changes the cost
recovery fee schedule for ROWs
authorized under Title V of FLPMA or
the Mineral Leasing Act of 1920, as
amended (MLA), as well as for land use
authorizations under Title III of FLPMA.
Though FLPMA and the MLA authorize
cost recovery for costs associated with
processing, monitoring, and terminating
ROWs, the current cost recovery fees for
minor ROWs requiring less than 50
hours of work do not cover the BLM’s
actual costs. The cost recovery portion
of the final rule:
• Increases the cost recovery fees for
minor ROWs; and
• Expands the definition of minor
ROWs to those requiring less than 64
hours of work.
The final rule also adds provisions
consistent with section 512 of FLPMA,
including section 512(b)(1), which
directs the BLM ‘‘[t]o enhance the
reliability of the electric grid and reduce
the threat of wildfire damage to, and
wildfire caused by vegetation-related
conditions within, electric transmission
and distribution ROWs . . . including
hazard trees.’’ The portion of the final
rule implementing section 512 of
FLPMA:
• Includes provisions governing
operations, maintenance, and fire
prevention plans and agreements for
vegetation and facility management on
public lands within powerline ROWs;
• Adds a definition of hazard tree
consistent with the United States Forest
Service’s definition; and
• Includes emergency access
provisions.
II. Background
The subject matter of this rule is the
BLM’s ROW program under 43 CFR
parts 2800 and 2880, land use
authorizations under part 2920, and

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communications uses under newly
established part 2860.
For the reader to better understand
the following discussion, a ‘‘grant,’’ as
defined in 43 CFR 2801.5, is any
authorization or instrument (e.g.,
easement, lease, license, or permit) the
BLM issues under Title V of FLPMA. A
‘‘right-of-way’’ refers to the public lands
that the BLM authorizes a holder to use
or occupy under a particular grant.
This final rule covers three distinct
topics. The first topic is
communications uses. The second topic,
cost recovery for the ROW program,
addresses the reimbursement of costs, as
authorized by FLPMA (43 U.S.C. 1701 et
seq.) and the MLA (30 U.S.C. 185 et
seq.), for the Federal Government’s
expenses in undertaking ROW work.
The third topic is implementation of
Section 512 of FLPMA (43 U.S.C. 1772)
and addresses the risk of fires from
powerline ROWs on public lands.
A. Communications Uses
In the 21st century, broadband is just
as vital to the public as roads and
bridges, electric lines, and sewer
systems. At the community level, an
advanced telecommunications network
is critical for supporting growth,
allowing small businesses to flourish,
creating jobs, strengthening the firstresponder network in remote areas, and
making it possible to remain
competitive in the information-age
economy. At the individual level, access
to broadband—and the expertise to use
it—opens the door to employment
opportunities, educational resources,
health care information, government
services, and social networks.
Although there have been great strides
in expanding broadband services in the
United States over the past several
years, rural and Tribal areas lag behind
in broadband deployment. Successive
Presidential administrations and
Congress have made it a priority to bring
affordable, reliable, high-speed
broadband to every American, including
the more than 35 percent of rural
Americans who lack access to
broadband at minimally acceptable
speeds. E.O. 13821, issued on January 8,
2018, promotes better access to
broadband internet service in rural
America. It states that ‘‘Americans need
access to reliable, affordable broadband
internet service to succeed in today’s
information-driven, global economy’’
and establishes a policy ‘‘to use all
viable tools to accelerate the
deployment and adoption of affordable,
reliable, modern high-speed broadband
connectivity in rural America, including
rural homes, farms, small businesses,
manufacturing, and production sites,

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tribal communities, transportation
systems, and healthcare and education
facilities.’’
On January 8, 2018, in association
with the release of E.O. 13821, a
Presidential Memorandum
(Memorandum) entitled ‘‘Supporting
Broadband Tower Facilities in Rural
America on Federal Properties Managed
by the Department of the Interior’’ stated
an executive branch policy to make
Federal assets more available for rural
broadband deployment, with due
consideration for national security
concerns. The Memorandum directed
the Secretary of the Interior to ‘‘develop
a plan to support rural broadband
development and adoption by
increasing access to tower facilities and
other infrastructure assets managed by
the Department of the Interior’’ and
‘‘identify[ ] the assets that can be used
to support rural broadband deployment
and adoption.’’
As the land management agency with
the responsibility to manage the largest
inventory of public land in the Federal
Government, the BLM is promulgating
this rule to amend regulatory provisions
for the processing and monitoring of
ROWs for communications uses.
Communications companies,
cooperatives, other private entities, and
government agencies ultimately make
decisions on locations to construct and/
or upgrade broadband infrastructure,
from communications towers to linear
ROWs for fixed terrestrial broadband
access. However, the Department
administers a significant amount of land
as well as existing permitted
infrastructure that can be leveraged for
increased connectivity in rural America.
Currently, there are approximately 1,500
communications sites on BLM lands. By
making it easier to collocate in and on
existing communications facilities or
build out new communications
infrastructure on public lands, this rule
will help to increase connectivity
throughout the United States.
Communications uses, including fiber
optic and telephone, may be collocated
within the 6,000 miles of energy
corridors administered by the BLM and
the U.S. Forest Service (USFS).
Newly established Part 2860 of this
rule consolidates and revises the
existing regulations pertaining to
communications uses to streamline
processes and establish new customer
service standards. The rule also
proposes several technical changes to
clarify the communications regulations.
This rule incorporates the new timing
requirements established by the
MOBILE NOW Act into the BLM’s
regulations. As amended by the
MOBILE NOW Act, 47 U.S.C.

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1455(b)(3)(A) states: ‘‘Not later than 270
days after the date on which an
executive agency receives a duly filed
application for an easement, right-ofway, or lease under this subsection, the
executive agency shall—(i) grant or
deny, on behalf of the Federal
Government, the application; and (ii)
notify the applicant of the grant or
denial.’’ E.O. 13821 states, ‘‘Federal
property managing agencies shall use
the GSA [General Services
Administration] Common Form
Application for wireless service antenna
structure siting developed by the [GSA]
Administrator for requests to locate
broadband facilities on Federal
property.’’ The MOBILE NOW Act also
requires the use of a common form for
all applications for communications
facilities. The BLM provides Standard
Form (SF)-299 for applicants seeking
authorization for such purposes on
public lands. The GSA, through
collaboration with other agencies,
decided the SF–299 would be the
common form for Federal authorization
of communications uses. This rule
requires use of the SF–299 for all
communications uses grants, thereby
making the regulations consistent with
the MOBILE NOW Act. By updating
these regulations, the BLM will improve
response times and address the current
lack of certainty in the communications
uses grant process that impacts industry
construction schedules and may
increase construction costs.
B. Cost Recovery
Typically, unless exempt, an
applicant must reimburse the BLM for
its reasonable costs incurred in
processing and monitoring a FLPMA
ROW activity. Both FLPMA and the
MLA authorize the Federal Government
to collect fees, called cost recovery, for
the reimbursement of costs that it
expends in processing a ROW
application, taking administrative
actions, or monitoring the construction,
operation, and termination of a facility
authorized by a grant. The Federal
Government collects cost recovery
before the BLM begins tasks related to
a ROW application or other ROWrelated activity.
In 2005, the BLM completed
regulations, found in 43 CFR parts 2800
and 2880, that established a cost
recovery processing and monitoring fee
schedule for ROW applications and
grants and an annual process whereby
the BLM updates the schedule to
account for changes in the Implicit Price
Deflator Gross Domestic Product (IPD–
GDP). The IPD–GDP measures annual
changes in the prices of goods and
services produced in the United States.

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The existing regulations also require the
BLM to reevaluate its cost recovery fees
for each cost recovery category, and the
categories themselves, within 5 years
after their effective date and at 10-year
intervals thereafter (43 CFR 2804.15 and
2884.15). The BLM completed its initial
cost recovery reevaluation in December
2010 and has continued to evaluate data
received through the end of FY 2020.
These data show that the former cost
recovery fee collections do not
adequately cover the costs incurred by
the BLM for processing and monitoring
ROW applications and grants under
both FLPMA and the MLA.
The final rule revises the existing cost
recovery fee categories to better reflect
updates in technology, the procedures
for processing applications and
monitoring grants, and statutes and
regulations relating to the ROW
program.
This rule also increases the cost
recovery fees to better reflect the current
costs of processing and monitoring
minor category ROWs and updates the
scope of the minor categories. Under the
former rule, ROWs that took 50 hours or
less for a BLM realty specialist to
process were considered minor. Under
the final rule, that processing time is
increased to 64 hours. This will allow
more applications to qualify for a minor
category, thus eliminating the labor to
establish, monitor, and maintain
appropriate accounting of major
category cost recovery accounts on those
applications. The BLM believes this
change will increase operational
efficiency.
This rule also makes several technical
changes to 43 CFR parts 2800 and 2880
that clarify and expedite other ROW
tasks. It updates cost recovery processes
for FLPMA ROW grants, MLA grants
and temporary use permits (TUPs), and
leases, permits, and easements issued
under Title III of FLPMA. Finally, the
existing ROW cost recovery fee structure
is also applicable to leases, permits, and
easements issued under Section 302(b)
of FLPMA (43 U.S.C. 1732(b)) and 43
CFR part 2920. This rule revises the
regulations for these authorizations,
found in section 2920.8(b), to provide
consistency with the revisions made to
the cost recovery provisions in part
2800.
C. Section 512 of FLPMA
The BLM’s mission is to sustain the
health, diversity, and productivity of the
public lands for the use and enjoyment
of present and future generations. The
BLM administers approximately 245
million surface acres. According to the
National Interagency Fire Center (NIFC),
approximately 109 million acres across

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the United States (including both
Federal and non-Federal lands) burned
in wildfires between 2006 and 2020.
Wildfire is a known risk to and from
powerlines and may be caused by a
variety of factors, including vegetation
contacting live powerlines or structural
failures of powerline infrastructure.
On March 23, 2018, Congress
amended FLPMA by adding Section
512, entitled, ‘‘Vegetation
Manag[e]ment, Facility Inspection, and
Operation and Maintenance Relating to
Electrical Transmission and Distribution
Facility Rights of Way’’ (43 U.S.C.
1772). FLPMA Section 512 establishes
requirements for the BLM and the USFS
to develop and implement regulations to
govern review and approval of
operations, maintenance, and fire
prevention plans and agreements for
vegetation and facility management on
public lands within powerline ROWs
and on abutting Federal lands. To
implement Section 512 of FLPMA on
land managed by the USFS, the USFS
published a final rule on July 10, 2020
(85 FR 41387), an amendment to the
final rule on August 11, 2020 (85 FR
48475), draft policy on December 10,
2020 (85 FR 79463), and a final directive
on February 10, 2022 (Forest Service
Manual (FSM) 2700—Special Uses
Management 2740—Vegetation
Management Pilot Projects).
This final rule includes provisions to
implement Section 512 on BLMmanaged land, including provisions
related to emergency conditions. This
rule is consistent with the direction in
Section 512(b)(1) of FLPMA that the
BLM ‘‘enhance the reliability of the
electric grid and reduce the threat of
wildfire damage to, and wildfire caused
by vegetation-related conditions within,
electric transmission and distribution
ROWs and abutting Federal land,
including hazard trees.’’ To enhance
electric reliability, promote public
safety, and avoid fire hazards, this rule
adds definitions for the terms ‘‘hazard
tree’’ and ‘‘operating plan or
agreement.’’ It also includes provisions
pertaining to ROW administration to
address fire risks on public lands, such
as ensuring that operating plans and
agreements provide for long-term, costeffective, efficient, and timely
inspection, operation, maintenance, and
vegetation management of a ROW and
on abutting Federal lands, including
management of hazard trees. The final
rule defines ‘‘hazard tree’’ consistent
with the USFS’s definition.
D. Legal Authority
Section 310 of FLPMA (43 U.S.C.
1740) authorizes the Secretary to
promulgate regulations to implement

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the statute. FLPMA also provides
comprehensive authority for the
administration and protection of the
public lands and their resources and
directs that the public lands be managed
‘‘under principles of multiple use and
sustained yield,’’ unless otherwise
provided by law (43 U.S.C. 1732(a)). A
similar authority for promulgating
regulations to implement the MLA’s
pipeline ROW provisions is found at 30
U.S.C. 185(f).
Both FLPMA (43 U.S.C. 1734(b) and
1764(g)) and the MLA (30 U.S.C. 185(l))
authorize the BLM and other Federal
agencies to require ROW applicants or
holders to reimburse an agency for costs
incurred processing a ROW application
and inspecting and monitoring an
authorized ROW.
The 2018 Consolidated
Appropriations Act amended FLPMA by
adding a new Section 512 (43 U.S.C.
1772), which directs the Secretary to
promulgate regulations to implement
the new section. The 2018 Act also
included a provision titled the ‘‘Making
Opportunities for Broadband Investment
and Limiting Excessive and Needless
Obstacles to Wireless Act’’ or ‘‘MOBILE
NOW Act,’’ which amended section
6409 of the Middle Class Tax Relief and
Job Creation Act of 2012 (47 U.S.C.
1455). The MOBILE NOW Act imposes
limits on the time to process ROW
applications and requires the use of a
common form for all applications to
install, construct, modify, or maintain
communications facilities (including
broadband infrastructure) on federally
owned lands.
E. Public Notice and Comments
The 60-day public comment period
for the proposed rule, published
November 7, 2022, at 87 FR 67306,
ended on January 6, 2023. The comment
period was re-opened and ended on
January 23, 2023. During the comment
period and government-to-government
consultation with Tribes and Alaska
Native Corporations, the BLM received
28 submissions, 18 of which were
unique. Comments included submittals
from the following entities: 1 Tribe, 1
Alaska Native Corporation, 7 companies
and industry organizations, 3
governmental organizations, and 16
individual (including anonymous)
submitters. In total, those submissions
included 136 unique comments.
Approximately half of the comment
submissions were neutral in tone or
expressed overarching support for the
proposed rule, with the remaining
comments expressing opposition to it.
However, duplicate letters submitted as
part of a form campaign accounted for
approximately 60 percent of the

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submittals expressing general
opposition.
All relevant comments are posted at
the Federal eRulemaking portal: http://
www.regulations.gov. To access the
comments at that website, enter 1004–
AE60 in the Search box. A few
commenters provided comments that
were outside the scope of the proposed
rule, and the BLM is not addressing
them in this final rule.
Comments regarding particular
provisions of the final rule are
addressed in the Section-by-Section
Discussion below. Several comments
regarding the rulemaking process are
addressed in the Procedural Matters
discussion below.
One commenter encouraged us to
weigh comments more heavily from
local communities. The BLM considers
all comments and does not give more
weight based on the identity of the
commenter.
Two commenters requested the BLM
work collaboratively with the USFS and
industry to develop guidance and
training programs that ensure consistent
application and implementation of the
rule. The BLM agrees that both agencies
should continue to work together and
with input from industry in these areas.
III. Section-by-Section Discussion
Part 2800—Rights-of-Way Under the
Federal Land Policy and Management
Act
Part 2800 of title 43 of the Code of
Federal Regulations describes
requirements for ROWs issued under
FLPMA. This rule revises the cost
recovery fee schedule and its categories.
The communications uses provisions
found in this part have been either
moved to new part 2860 or removed.
Other minor modifications correct or
clarify existing regulations.
Subpart 2801—General Information
Section 2801.2 What is the objective of
the BLM’s right-of-way program?
The rule adds the words ‘‘wherever
practical’’ to the objective described in
§ 2801.2(c). This revision aligns the
objective of promoting ROWs in
common with the requirement
described in Section 503 (43 U.S.C.
1763) of FLPMA.
Section 2801.5 What acronyms and
terms are used in the regulations in this
part?
The rule moves several terms
associated with communications uses
from § 2801.5 to the definitions section
for a new part 2860, which specifically
addresses communications uses. The
rule also adds new definitions to

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§ 2801.5. BLM is revising and
republishing paragraph (b) of § 2801.5
(1) to decrease the likelihood of
introducing errors, (2) improve
efficiency during the publication
process, and (3) meet Office of the
Federal Register drafting and formatting
requirements for publication. Unless
explained elsewhere in this preamble as
a change between the proposed and
final rules, the individual (piecemeal)
changes to the affected CFR units are
detailed in the proposed rule, published
on November 7, 2022, at 87 FR 67306.
The BLM received comments
expressing confusion about the term
‘‘ancillary’’ as that term is used in
various sections of the proposed rule. In
response, the BLM added the term to
this definition section of the final rule
and, consistent with its usage of the
term in the proposed rule, defined
‘‘ancillary’’ as a secondary use entirely
within the scope of a primary
authorization that solely supports the
operations allowed by that primary
authorization and that the holder does
not make available to third parties
through commercial sales.
As proposed, the term and a
definition of ‘‘complete application’’ are
also added to clarify that an application
is only complete when it contains all
necessary information found under
§ 2804.12 and when the BLM notifies
the applicant that it is complete. This is
an important clarification, because the
BLM’s customer service standards for
processing applications apply only
when an application is complete. This
is consistent with existing BLM
practice, and this rule clarifies this
requirement. The final rule includes
only minor, nonsubstantive changes to
the definition that appeared in the
proposed rule.
One commenter recommended that
the BLM change the definition of
‘‘complete application’’ to provide for
notification to the applicant if the
application is not complete, as well as
to reference section 2804.25(c).
However, the BLM will maintain its
existing definition of ‘‘complete
application’’ and associated workflow.
The BLM reviews the application
casefile upon serialization and sends a
deficiency letter to the applicant if
initial deficiencies are identified. After
interdisciplinary review, the BLM sends
a deficiency letter if the
interdisciplinary team determines
additional pertinent information is
missing. The BLM may send a
deficiency letter at any point during the
process if more information is needed
per 43 CFR 2804.25(c). The BLM’s
current customer service standards and
application processing workflow appear

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to address the commenter’s requests so
that no substantive revision of the rule
is necessary.
The rule adds the term and a
definition of ‘‘cost recovery’’ to clarify
that it is a fee for the processing and
monitoring associated with any
proposed or authorized ROW. The final
rule makes no changes to the definition
that appeared in the proposed rule.
The rule adds the term and a
definition of ‘‘exempt from rent’’ to
clarify when an authorization is
automatically exempt from rental. This
definition is consistent with existing
§ 2806.14 and new § 2866.14. The final
rule makes no changes to the definition
that appeared in the proposed rule.
The rule revises the definition of the
term ‘‘facility’’ by removing the last
sentence. This part of the definition
applied only to communications uses
and was moved into new § 2861.5,
which is the definitions section for the
new part 2860 that has been added by
this rule to consolidate provisions that
address communications uses ROWs.
The final rule makes no changes to the
definition that appeared in the proposed
rule.
Several commenters suggested that
the BLM change the definition of hazard
tree to conform with the USFS’s
definition so that the definition would:
(1) explicitly refer to the different types
of vegetation that create hazardous
situations, consistent with the USFS’s
definition; and (2) apply to vegetation
likely to come within the minimum
vegetation clearance distance, in
addition to vegetation likely to come
within 10 feet of a powerline facility.
Another comment requested
modification of the rule to acknowledge
that all vegetation with the capability of
growing into a standardized clearance
area at maximum growth potential will
be removed, regardless of whether dead
or likely to die. And another requested
the BLM clarify how it interprets the
hazard tree definition with respect to
who can identify these trees and set
occupational standards for their staff.
Related to the definition of ‘‘hazard
tree’’ and removal of vegetation from the
ROW, the BLM received a comment
requesting clarification of what
constitutes routine maintenance of the
ROW and whether routine maintenance
requires prior BLM approval. Another
comment stated that grant holders, not
the BLM, should have discretion to
determine what vegetation poses an
imminent danger and should be treated
as an emergency not requiring BLM
approval prior to removal.
In response to these comments, the
final rule revises the definition of
‘‘hazard tree’’ that appeared in the

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proposed rule by adopting the existing
USFS definition and adds definitions of
other terms used and defined in the
USFS definition of ‘‘hazard tree’’
including ‘‘minimum vegetation
clearance distance (MVCD),’’
‘‘maximum operating sag,’’ ‘‘operating
plan or agreement,’’ and ‘‘powerline
facility.’’ These definitions apply in the
limited context of powerline ROWs
subject to § 2805.22 and will help
holders of such ROWs understand what
is required of them and what
authorization their ROW provides. (See
§ 2805.22(b)(3)).
As commenters pointed out, the
USFS’s definition of ‘‘hazard tree’’
includes trees and non-tree vegetation
that is ‘‘[l]ikely to cause substantial
damage to the powerline facility;
disrupt powerline facility service; come
within 10 feet of the powerline facility;
or come within the [MVCD] as
determined in accordance with
applicable reliability and safety
standards, and as identified in the
special use authorization for the
powerline facility and the associated
approved operating plan or agreement.’’
(36 CFR 251.51).
The ‘‘MVCD’’ is the calculated
distance (stated in feet or meters) that is
used to prevent flashover between
conductors and vegetation for various
altitudes and operating voltages. The
MVCD is measured from a conductor’s
maximum operating sag to vegetation
within and adjacent to the linear
powerline ROW for purposes of felling
or pruning hazard trees. The ROW
holder uses this calculation to
determine whether vegetation poses a
system reliability hazard to the
powerline facility. Although the
proposed rule dealt with vegetation
management generally, the term did not
appear, and so was not defined, in the
proposed rule. It appears in the final
rule as a term used in the final rule’s
definition of ‘‘hazard tree.’’
‘‘Maximum Operating Sag’’ is the
theoretical position of a conductor when
operating at 100 degrees Celsius and
must be accounted for when
determining MVCD. Although the
proposed rule dealt with vegetation
management generally, the term did not
appear, and so was not defined, in the
proposed rule. It appears in the final
rule as a term used in the final rule’s
definition of ‘‘hazard tree.’’
In response to the comments about
vegetation management, the final rule
also adds a definition for the term
‘‘maintenance’’ that applies when that
term is used to describe actions taken by
holders of powerline ROWs. The term
appeared, but was not defined, in the
proposed rule. As with the final rule’s

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definition of ‘‘hazard tree,’’ the BLM is
patterning the definition of
‘‘maintenance’’ after the USFS
definition of that term in the same
context of powerline ROWs.
‘‘Maintenance,’’ as it is defined in this
final rule, encompasses and
distinguishes between routine, nonroutine, and emergency maintenance.
The rule replaces the term
‘‘monitoring’’ with ‘‘monitoring
activities’’ and revises the definition of
that term. ‘‘Monitoring activities’’ means
those activities the Federal Government
performs to ensure compliance with
terms and conditions of a ROW grant.
The definition also revises the
explanation of the monitoring categories
for consistency with the revisions made
to § 2804.14(a). The final rule makes no
changes to the definition that appeared
in the proposed rule.
The rule adds the term and a
definition of ‘‘operations and
maintenance,’’ which includes activities
conducted by a ROW holder to manage
facilities and vegetation within and
adjacent to the ROW boundary.
The final rule uses the term
‘‘operating plan or agreement’’ in place
of ‘‘operations, maintenance, and fire
prevention plan,’’ which was used in
the proposed rule. ‘‘Operating plan or
agreement’’ is a term used by USFS in
its definition of ‘‘hazard tree.’’ Since the
BLM adopted the USFS definition of
‘‘hazard tree’’ in this final rule, the BLM
determined it would be clearer to use
the USFS’s term ‘‘operating plan or
agreement’’ rather than ‘‘operations,
maintenance, and fire prevention plan’’
as the definitions of the two terms were
substantively the same. An ‘‘operating
plan or agreement’’ is a plan (or
agreement) submitted to the BLM by the
holder of a ROW that describes how the
holder plans to operate, maintain, and
inspect the applicable ROW and
facilities in a cost-effective, efficient,
and timely manner to enhance electric
reliability, promote public safety, and
avoid fire hazards, including vegetation
in or adjacent to the ROW.
The rule adds the term and a
definition of ‘‘powerline facility.’’
Although the proposed rule dealt with
facilities properly described as
‘‘powerline facilities,’’ the term did not
appear and so was not defined in the
proposed rule. It appears in the final
rule as a term used in the final rule’s
definition of ‘‘hazard tree.’’ A
‘‘powerline facility’’ is one or more
electric distribution or transmission
lines authorized by a ROW grant and all
appurtenances to those lines supporting
conductors of one or more electric
circuits of any voltage for the
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overhead ground wires, and
communications equipment that is
owned by the ROW holder; that solely
supports operation and maintenance of
the electric distribution or transmission
lines; and that is not leased to other
parties for communications uses that
serve other purposes.
The rule adds the term and a
definition of ‘‘processing activities.’’
Processing activities are defined as work
that the Federal Government undertakes
to evaluate an application for a ROW
grant. The principal outcome of ROW
processing is a determination of
whether to approve the application by
issuing a grant and identifying
appropriate terms and conditions for
each grant. The definition also includes
preparation of an environmental
document, compliance with other legal
requirements, and ROW administrative
actions, such as assignments,
amendments, and renewals, as different
processing activities. This is not a
change from existing BLM practice but
clarifies to the public that the BLM
collects cost recovery fees for these
ROW-related activities. This definition
explains what activities are generally
associated with applications found
under each cost recovery category. The
final rule makes no changes to the
definition that appeared in the proposed
rule.
In response to comments expressing
confusion about the term ‘‘subleasing,’’
the BLM added the term to this section
of the final rule, defining it as the ROW
holder allowing another party or parties
to use facilities for the purposes
specified in the ROW authorization, for
which use the ROW holder may charge
fees.
In response to multiple comments, the
BLM revised the definition of
‘‘substantial deviation’’ to strike the best
balance of the various considerations
that the commenters raised. Two
commenters wanted the definition of
‘‘substantial deviation’’ expanded
further. One commenter suggested the
BLM change the definition of
‘‘substantial deviation’’ to exclude
additions of overhead optical ground
wire and additions of new structures, as
well as replacement of existing
structures or conductors. Another
commenter asked that the BLM change
the definition of ‘‘substantial deviation’’
to clarify that any changes being made
in support of an existing authorized use
within the boundary of an existing
authorized ROW are not to be
considered a substantial deviation and
require no additional authorization.
In response to these comments, the
final rule revises the definition of
‘‘substantial deviation’’ to clarify that

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general maintenance activities,
including safety-related activities,
within an existing ROW are not
considered a substantial deviation.
Additionally, the definition clarifies
that activities to prevent or suppress
wildfires on lands within or adjacent to
the ROW are not considered a
substantial deviation. The final rule
explicitly identifies ‘‘vegetation
management’’ as an example of such
activities.
Another commenter suggested the
BLM change the definition of
‘‘substantial deviation’’ to include
criteria the BLM will use to determine
whether activities that occur when a
ROW holder adds overhead or
underground lines, pipelines,
structures, or other facilities not
expressly included in the current grant
represent a substantial deviation.
Though the BLM did not revise the rule
to include specific criteria that will be
used to determine whether an activity is
a substantial deviation, the BLM plans
to issue implementation guidance to
help the BLM office processing or
monitoring the ROW make this
determination.
The rule revises the definition of
‘‘transportation and utility corridor’’ to
clarify the process for establishing
transportation and utility corridors.
Furthermore, the amended definition
clarifies the need for compatible uses.
The final rule makes no changes to the
definition that appeared in the proposed
rule.
The BLM received multiple,
contradictory comments about
‘‘vegetation management’’ and in
response has added the term and a
definition to the rule. The rule defines
‘‘vegetation management’’ in terms of
both ‘‘emergency vegetation
management’’ and ‘‘nonemergency
vegetation management.’’ ‘‘Emergency
vegetation management’’ is unplanned
felling and pruning of vegetation on
public lands within the linear right-ofway for a powerline facility and
unplanned felling and pruning of
hazard trees on abutting public lands
that have contacted or present an
imminent danger of contacting the
powerline facility to avoid the
disruption of electric service or to
eliminate an immediate fire or safety
hazard. ‘‘Nonemergency vegetation
management’’ is planned actions as
described in an operating plan or
agreement periodically taken to fell or
prune vegetation on public lands within
the linear right-of-way for a powerline
facility and on abutting public lands to
fell or prune hazard trees to ensure
normal powerline facility operations
and to prevent wildfire in accordance

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with applicable reliability and safety
standards and as identified in an
approved operating plan or agreement.
Several commenters suggested
changes to § 2805.14(d), the provision
that gives holders the right to perform
certain vegetation management, with
some commenters proposing that the
BLM broaden the provision while others
proposed that the BLM make it
narrower. One commenter suggested
that the BLM amend § 2805.14(d) so that
ROW holders could trim, prune, and
remove vegetation and conduct other
activities consistent with maintenance
and operation of the ROW and
protection of public health and safety.
Another commenter supported the
provision as proposed so long as the
vegetation management activities were
defined in the project’s operating plan
or agreement. A third commentor
requested revision of § 2805.14(d) to
clarify that vegetation management to
maintain the ROW includes the right to
cut or trim off-ROW vegetation when
the utility determines it is necessary as
part of its vegetation management
program. Similarly, another commenter
requested the BLM modify the rule to
acknowledge that all vegetation with the
capability of growing into a
standardized clearance area at
maximum growth potential will be
removed, regardless of whether it is
dead or likely to die. A final commenter
requested that the BLM clarify how the
BLM interprets the hazard tree
definition with respect to who can
identify hazard trees and set
occupational standards for its staff.
In response to the comments, the BLM
determined it will retain the language in
§ 2805.14(d) but, as discussed above,
revised the definition of hazard tree to
be consistent with the USFS’s
definition, which addresses some of the
comments regarding when vegetation
management is allowed on and adjacent
to the ROW.
The rule adds the term and a
definition of ‘‘waived from rent’’ to
clarify the differences between being
‘‘waived from rent’’ and ‘‘exempt from
rent.’’ While a holder may be exempted
from rent by statute or regulation, the
BLM may also waive a part, or all, of a
holder’s rent (see §§ 2806.15 and
2866.15). The final rule makes no
changes to the definition that appeared
in the proposed rule.
The rule revises the definition of
‘‘zone’’ by removing the number ‘‘eight’’
from the description of the number of
zones. The current linear rent schedule
for ROWs has 15 zones, so the former
definition is no longer accurate.
Removing the number of zones does not
affect the definition. The final rule

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makes no substantive changes to the
definition that appeared in the proposed
rule.
Subpart 2802—Lands Available for
FLPMA Grants
Section 2802.10 What lands are
available for grants?
This rule revises § 2802.10(c) by
removing the specific requirement to
notify the BLM office nearest the lands
you seek to use. The rule instructs you
to contact the BLM to determine the
appropriate office with which you
should coordinate. The appropriate
office is the BLM office with jurisdiction
over the lands you seek to use, which
may not be the same as the BLM office
nearest those lands.
One commenter suggested that the
BLM modify § 2802.10(c) to provide for
the identification of a single
administrative office to be the lead for
coordination in processing a ROW
application when multiple offices may
be involved, as well as to provide
guidance on how to determine the
appropriate BLM office or contact.
The BLM elected not to make the
recommended change because the BLM
has procedures to identify a lead office,
or in the case where a project crosses
several states, to identify a lead state to
coordinate the processing of a ROW
application. See BLM ROW Manual
2804 for further guidance on this
process.
Subpart 2803—Qualifications for
Holding FLPMA Grants
Section 2803.11 Can another person
act on my behalf?
Section 2803.11 adds new provisions
to govern the process a holder must
follow to notify the BLM when another
person or entity is authorized to act on
the holder’s behalf. This standardizes
what documents the BLM requires prior
to allowing another person or entity to
act on behalf of the holder.
Paragraph (a) requires the holder to
follow several steps before designating
another individual or entity to act on
their behalf. These requirements are
necessary for the BLM to understand the
legal relationship between the holder
and the third party acting on their
behalf.
Paragraph (a)(1) explains which BLM
office must be notified. The office with
jurisdiction over a grant retains the
official case file and therefore needs the
official documentation. This paragraph
also requires the holder to provide a
copy of a relevant power of attorney if
one exists. This is often the instrument
used to authorize another party to act on
the holder’s behalf. This requirement

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should not create any additional burden
because the requested information is
simply a copy of documents already
possessed by the holder.
Paragraph (a)(2) requires the holder to
provide and maintain current contact
information for their intended agent.
This requirement is important if the
BLM needs to contact the agent.
Without updated and current contact
information, processing times can be
delayed. This requirement is anticipated
to streamline interactions between the
BLM and holders or their agents.
Paragraph (b) informs the ROW holder
how the BLM will administer the grant.
The BLM is simplifying the formal
communication process by establishing
expectations of responsibility for any
actions taken by an authorized agent. As
a result of this change, the BLM
anticipates a reduction in processing
times for requests related to a ROW
application.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2803.12
grant if I die?

What happens to my

Because an application is not an
inheritable interest, the BLM changed
the title of this section from ‘‘What
happens to my application or grant if I
die?’’ to ‘‘What happens to my grant if
I die?’’ Paragraph (a) was also revised to
remove the reference to applications.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Subpart 2804—Applying for FLPMA
Grants
Section 2804.12 What must I do when
submitting my application?
In § 2804.12, the BLM has changed
§ 2804.12(a) by adding a sentence
following the first sentence to read:
‘‘The application must include the
applicant’s original signature or meet
the BLM standards for electronic
commerce.’’ This addition clarifies that
when an application for a ROW is filed
electronically, a manual signature may
not be required. One commenter
expressed support for the proposed
rule’s allowance that an application for
a ROW that is filed electronically may
not require a physical signature. The
BLM has established the electronic
filing process for communication uses
ROWs by providing an online SF–299
for this type of ROW application. The
BLM may expand the online filing
process to other types of ROWs in the
future.
Revisions to § 2804.12(a)(4) require an
applicant to submit the project map for

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the project as Geographic Information
Systems (GIS) shapefiles, or in an
equivalent format, when requested to do
so by the BLM. When a BLM office is
conducting an analysis under the
National Environmental Policy Act
(NEPA) or the National Historic
Preservation Act (NHPA), it is not
uncommon for the various resource
specialists to request that the applicant
provide project data electronically in a
GIS format to ensure that the correct
area for the proposed project is
analyzed. It is likely the individual or
entity responsible for the application
already has the proposed project data in
a GIS format, and therefore, the BLM is
not adding a significant burden upon
the applicant. This new requirement is
expected to reduce application
processing times by allowing the BLM
to integrate project locations into
existing resource datasets and analyze
the potential resource impacts more
quickly. See the preamble discussion of
§ 2864.12(a)(3) for comments related to
the rule’s GIS requirements.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2804.14 What are the fee
categories for cost recovery?
The rule revises the title of this
section to read: ‘‘What are the fee
categories for cost recovery?’’ The cost
recovery categories in this section apply
to both processing and monitoring
activities, whereas the former title of
§ 2804.14 refers only to processing fees
for grant applications. The BLM
amended § 2804.14(a) to clarify that cost
recovery fees include both processing
and monitoring activities and to
maintain consistency with the changes
in § 2804.16 which, as amended,
provides for the waiver of, rather than
exemption from, processing and
monitoring fees.
A commenter asked that the BLM
explain how monitoring costs for the
duration of the grant can be determined
at the time of the grant application,
given the long-term nature of
authorizations. Often, monitoring is a
one-time event to ensure that terms and
conditions contained in a ROW grant
are met during construction. However,
for more complex authorizations,
monitoring must occur throughout both
construction and maintenance of the
ROW. The expense for continuous
monitoring during construction and
afterward is considered when making
category determinations. At times,
periodic billing will be required to cover
additional monitoring costs. This is
especially true for Category 5 and 6
ROW project monitoring. Therefore, the

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BLM may collect additional payments
from the land use authorization holder
for anticipated monitoring expenses.
The final rule amends the existing
regulations to acknowledge that some
ROWs that fall into the minor categories
may nevertheless require monitoring for
lengthy construction or maintenance
periods. The BLM suggests long-term
monitoring provisions be included in
operating plans or agreements.
The BLM received multiple comments
on the cost recovery portion of the
proposed rule, largely focused on the
increased cost recovery fee schedule for
processing Category 1–4 ROW
applications. One commenter stated that
the BLM should eliminate revisions to
the Category 1 processing fee that
include processing fees for work
estimated to take 1 hour or less. This
commenter contested the BLM’s
justification that the time spent on ROW
work activities generally is not less than
1 hour and expressed concern that this
revision would create a financial burden
to industry through the additional
processing fees.
Processing one ROW application
generally requires more than 1 hour. To
process a ROW application, one or more
BLM staff specialists need to examine
the ROW site including traveling to and
from the site. They need to prepare one
or more reports (e.g., cultural site
evaluation, environmental evaluation),
identify appropriate terms and
conditions to be applied, prepare a grant
for the applicant to sign, and collect
rents and cost recovery payments.
Master Agreements are a way for
applicants to address concerns related
to Category 1 applications that may take
less than 1 hour to process.
Three commenters expressed concern
about the amount the cost recovery fee
is increasing and/or the validity of the
calculations used to determine the new
cost recovery fee schedule. The first
commenter stated that cost recovery fees
should not be revised to reflect an
average hourly wage of $67.83. The
commenter expressed concern that the
economic analysis used to determine
the average wage does not provide
sufficient information to assess the
validity of this wage. Similarly, this
commenter stated that the rule did not
properly consider required
reasonableness factors in calculating
$67.83 as the base average hourly wage
for its cost recovery fees. More
specifically, the commenter stated that
the economic analysis was incorrect in
its determination that all non-major
projects: (1) are local in nature with
small public benefits; (2) provide little
opportunity to meet public service
needs; and (3) would have an

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insignificant number of ROW
applications where paying full actual
costs could generate undue hardship.
The second commenter stated that the
average hourly wage of $67.83 upon
which the cost recovery fees of sections
2804.14(b), 2805.16(a), 2884.12(b), and
2885.24(a) are based is not reasonably
supported by the rule. The commenter
stated the BLM had not provided
adequate information for the public to
consider its proposed new average
hourly wage of $67.83, and the BLM had
not considered adequately the
consequences of its proposed rule. The
third commenter expressed a general
concern that cost recovery fees were
increasing too much.
The BLM recognizes that the cost
recovery calculations are complex but
will not revise the hourly wage. FLPMA
Section 304(b) identifies the factors
which the BLM takes into account when
determining whether fees are
reasonable. Please see the 1986 BLM
proposed rule (51 FR 26836–26844) for
the first cost recovery determinations
applying these factors. The economic
analysis has been updated to provide
more detail in response to the
comments. Further discussion of how
the hourly rate was calculated and how
the amount of the increase satisfies the
reasonableness factors is provided in the
below paragraphs. Master Agreements,
also discussed below, are a way for
applicants to address cost concerns.
Three commenters expressed interest
in the overhead cost calculations used
in calculating the new cost recovery fee
schedule. One commenter asked why
only 3 years were used in calculating
‘‘overhead costs.’’ Another commenter
asked how the specific percentages for
the 3 years used were calculated. A
third commenter questioned how the
asserted ‘‘overhead costs’’ were
calculated, whether only ‘‘vehicle usage,
building utility cost, and property
maintenance’’ went into the calculation,
or if other items were included.
The indirect cost rate or ‘‘overhead
costs’’ include expenses such as
building maintenance, utilities, general
administrative costs (time keeping,
vehicle expenses, local travel costs), and
similar items. The indirect rate is
calculated by taking the total of the
BLM’s expenditures for a fiscal year
(FY), subtracting salary costs, and
dividing the remainder by the total
expense figure. The annual indirect rate
for any 1 year is derived from the
average of the 5 previous fiscal years’
costs. The indirect cost rates for FY
2018, 2019, and 2020 were 21.8 percent,
21.6 percent, and 21.5 percent,
respectively. Tables showing the
calculation can be found in the

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economic analysis for this rulemaking.
‘‘Economic and Threshold Analysis for
Revisions to 43 CFR 2800,’’ U.S. Bureau
of Land Management, October 2023,
available at www.regulations.gov.
The BLM received several comments
asking how cost recovery amounts were
determined for Category 1–4 ROW
applications. The cost recovery amounts
for Category 1–4 applications were
determined in a multi-step process.
First, the BLM reviewed data in the
DOI’s Financial and Business
Management System for FYs 2018, 2019,
and 2020. The purpose of this review
was to determine the BLM’s costs
associated with conducting ROW
processing and monitoring activities.
From this information, the BLM
determined an approximate average
wage ($/hour) being used to conduct
cost recovery-eligible work and applied
that wage to the number of hours
representing the midpoint for each
minor category. The BLM reviewed data
that included these three functional
areas (or sub-activities): ‘‘1430’’ (lands
and realty work); ‘‘1492’’
(communication site work); and ‘‘5102’’
(ROW-cost recovery work). The program
elements included: ‘‘ER’’ (ROW
processing); ‘‘FP’’ (ROW work other
than processing); and ‘‘NH’’ (ROW
compliance).
The BLM used the following formulas
to determine the approximate average
wage for the cost recovery work:
Average Wage = total pay + indirect
costs/number of hours worked
Total Pay = pay amount + pay additive
+ leave surcharge + leave surcharge
additive
Indirect Costs = total pay ✽ indirect rate
‘‘Pay amount’’ is the portion of
employee gross pay charged to each
program. ‘‘Pay additive’’ is the
government share of taxes (e.g., OASDI
and Medicare) and any employee
benefits (such as health insurance
premiums, retirement contributions,
etc.). ‘‘Leave surcharge’’ is a percentage
of the employee gross pay assessed to
each program to fund employee leave
taken. ‘‘Leave surcharge additive’’ is a
percentage of the government share of
taxes and any benefits assessed to each
program to fund employee leave taken.
The ‘‘indirect rate,’’ as discussed above,
is a percentage applied to the total pay
to account for overhead costs, such as
for vehicle use, building utility costs,
and property maintenance.
The average wages that the BLM
calculated using the cost data were
relatively stable across the 3-year period
with a slight increase in FY 2020:
$66.47, $66.69, and $70.50 in FY 2018,
FY 2019, and FY 2020, respectively.

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When the data are combined over the 3year period, the calculated average wage
is $67.83.
This wage is the value that the BLM
used to determine the revised fee
schedule. Specifically, the BLM
multiplied $67.83 by the number of
hours representing the midpoint for
each minor category to get the revised
base year fee for each category. During
previous rulemakings on this subject,
the BLM received comments that most
users supported use of a midpoint, as
opposed to another statistical method or
evaluation of the data. With this rule,
the BLM maintains the use of the
midpoints for calculating the fees for the
minor categories. The result of this
formulation is revised fees of $271,
$1,085, $2,171, and $3,527 for minor
categories 1, 2, 3, and 4, respectively.
These are the fees to be applied in the
base year and adjusted annually for
changes in the GDP–IPD, per current
practice.
For more specific information on the
calculation of the cost recovery
amounts, please see ‘‘Economic and
Threshold Analysis for Revisions to 43
CFR 2800,’’ U.S. Bureau of Land
Management, October 2023, available at
www.regulations.gov.
With the increase in cost recovery
fees, one commenter requested
additional clarification as to how the
BLM intends to use the increased
revenue from Category 1–4 cost
recovery. The BLM will use the
increased revenue from the cost
recovery fee increase to offset the costs
the BLM incurs processing and
monitoring minor category ROWs.
Currently, the cost recovery funds
received from applicants or ROW
holders do not cover the Federal
Government’s expenses in processing
and monitoring ROWs, which is the
principal reason for adjusting the cost
recovery fee schedule.
Two commenters stated that cost
recovery fees should be solely covered
by applicants and not impact taxpayers.
The BLM agrees with these commenters.
That is one of the reasons why the final
rule includes the fee schedule increase.
The BLM has elected not to revise the
final rule to further explain the BLM’s
use of the revenue from the cost
recovery fees. The statutory authority
and the definition of ‘‘cost recovery’’ at
§ 2801.5 and text of the rule at § 2804.14
explain that cost recovery fees are for
both processing and monitoring
expenses.
A commenter also encouraged the
BLM to provide detail regarding the cost
recovery fees as well as other recovered
costs to ensure that double cost recovery
does not occur. The BLM charges cost

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recovery fees for processing and
monitoring ROWs, and the BLM
receives rents for the use of public lands
for ROW purposes. Cost recovery is
charged only once, while the ROW
rental is charged every year. In
suggesting that double cost recovery
could occur, the commenter likely is
confusing the one-time cost recovery
with annual rent.
Two commenters requested that the
BLM apply cost recovery fees to cover
road inspection by BLM staff. For roads
that are part of a ROW project subject
to cost recovery, such fees are already
used to pay for these inspections.
Although the BLM is not changing this
final rule to directly accommodate this
comment, the BLM believes that it is a
worthwhile suggestion, and the BLM
will strive to ensure that cost recovery
receipts are used for the proposed
purpose.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Section 2804.15 When does the BLM
reevaluate the cost recovery fees?
This rule revises the title of this
section to change ‘‘processing and
monitoring’’ to ‘‘cost recovery.’’ This
change is necessary for consistency with
the changes made to § 2804.14.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2804.16 When will the BLM
waive cost recovery fees?
The rule amends § 2804.16 by revising
the title to read ‘‘When will the BLM
waive cost recovery fees?’’ rather than
‘‘Who is exempt from paying processing
and monitoring fees?’’ Paragraph (a) of
this section contains the undesignated
introductory text of existing § 2804.16.
This language was revised to refer to
cost recovery fees, instead of processing
and monitoring fees, and change the
existing provision for an absolute
exemption from fees to a potential
waiver of fees that the BLM has
discretion to apply or not apply.
Paragraph (a)(1) of this section
contains the text of existing § 2804.16(a)
and states that ROW cost recovery fees
may be waived if an applicant is a State
or local government and the application
is for governmental purposes that
benefit the general public. Under this
paragraph, the waiver does not apply if
charges levied on customers are similar
to those of a profit-making entity. This
is different from the former exception
which applied only when such charges
were the ‘‘principal source of revenue.’’

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The waiver for governmental entities
is intended to provide financial relief to
governmental entities seeking to provide
a benefit to the public. However, some
of these entities charge rent to use their
facility beyond the operating costs. This
change makes the waiver unavailable to
applicants who would otherwise receive
an authorization at no charge and then
collect fees from other users.
Paragraph (a)(2) of this section
contains the text, without revision, from
existing paragraph (b).
Paragraph (a)(3) allows the BLM to
waive cost recovery fees for Federal
agencies for applications belonging to
cost recovery Categories 1 through 4.
The former regulations required Federal
agencies to pay cost recovery fees on all
ROW applications. Under an earlier
version of the regulations, Federal
agencies were exempt from all cost
recovery. This rule strikes a middle path
by allowing the BLM to waive fees for
Federal agencies in some but not all
circumstances. Transferring funds
between agencies is costly and
administratively slow. Costs associated
with processing the transfer often
exceed the fees being transferred.
Therefore, it is not cost effective for the
BLM to collect cost recovery fees from
other Federal agencies for Categories 1
through 4. However, if a Federal
agency’s application would take the
BLM more than 64 hours to process, the
BLM would collect cost recovery fees
under Category 5 or 6.
This rule adds a new paragraph (b) to
this section stating that the BLM will
not waive your fees if you are in
trespass. This paragraph makes existing
BLM policy explicit in the regulations.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2804.17 What is a Master
Agreement (Cost Recovery Category 5)
and what information must I provide to
the BLM when I request one?
This rule modifies § 2804.17(a) to
change the cross-reference from
§ 2805.16 (currently the table for
monitoring fees) to § 2804.14, which
contains the combined cost recovery
table for all ROW activities.
One commenter suggested the BLM
clarify whether Master Agreements are
initiated by the BLM or the applicant. A
Master Agreement may be initiated by
either party, but in the end, it is a
mutual undertaking. The same
commenter encouraged the BLM to: (1)
allow master cost recovery agreements
that lay out the terms and conditions for
cost recovery but do not require funding
commitments; (2) allow agreements to
be developed at a region-wide level; and

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(3) clarify that only one Master
Agreement is necessary in situations
where the defined geographic area for a
transmission line would be in more than
one BLM administrative unit.
In response to the commenter’s
suggestions, the BLM revised paragraph
(a) to clarify that monitoring may be
done under Master Agreements but
elected not to revise the final rule
further. See the discussion of section
2804.18 for further responses to these
comments.
Section 2804.18 What provisions do
Master Agreements contain and what
are their limitations?
Section 2804.18 describes how Master
Agreements function.
Paragraph 2804.18(a)(2) provides that a
Master Agreement describes work to be
done by the applicant and the BLM to
complete ROW permitting and
monitoring activities. A commenter
suggested the BLM clarify whether
Master Agreements are initiated by the
BLM or the applicant. The BLM elects
not to revise the rule in response to this
comment, because the rule
appropriately provides for cooperative
development of Master Agreements and
initiation by either the BLM or the
applicant.
The revisions to paragraph
2804.18(a)(2) allow Master Agreements
to be used for any type of ROW activity,
not just ROW processing. The rule
revises language in paragraph (a)(5) to
align the language with other updates in
the rule. The BLM believes the
expanded use of Master Agreements
will streamline processing and
monitoring activities. Master
Agreements are designed to consolidate
some of the processing and monitoring
steps associated with ROWs, including
combining budgeting processes into one
project work breakdown structure. Also,
many Master Agreements fund or
partially fund staffing of Realty
Specialists and other key members of
interdisciplinary teams, which can help
expedite processing when funds are not
otherwise available (§ 2804.22).
Section 2804.18(c) is amended to refer
to ‘‘cost recovery fees,’’ instead of
‘‘processing and monitoring fees.’’
These changes are consistent with the
expanded definition of a Master
Agreement.
The final rule includes a new
paragraph (a)(9) and redesignates the
existing paragraph (a)(9) as paragraph
(a)(10). This revision is made in
response to several comments that
suggested Master Agreements should be
written so that they also include
previously granted ROWs. This addition

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will clarify that Master Agreements may
cover previously authorized ROWs.
The BLM also received a comment
requesting the BLM allow master cost
recovery agreements that lay out the
terms and conditions for cost recovery
but do not require funding
commitments. The commenter’s intent
is not clear from this comment.
However, the BLM notes that the
primary purpose of a master cost
recovery agreement is to agree upon the
required cost recovery funding
commitments.
The BLM also received a comment
suggesting that the agency allow regionwide Master Agreements and Master
Agreements that cover more than one
BLM administrative unit. The current
regulations allow Master Agreements to
cover more than one administrative
unit, and the BLM is piloting regionallevel master ROW’s that include master
operating plans or agreements as well as
master cost recovery plans. The BLM
anticipates providing further guidance
on regional-level master ROWs in the
future.
Section 2804.19 How will the BLM
manage my Category 6 project?
Section 2804.19 is amended by
revising the title from ‘‘How will BLM
process my Processing Category 6
application?’’ to read ‘‘How will the
BLM manage my Category 6 project?’’
This section is revised to explain that
cost recovery for Category 6 projects
will include monitoring the grant in
addition to processing the application.
This rule also makes editorial changes
for clarity and consistency with the
other rule changes.
Paragraph 2804.19(a) eliminates the
requirement for a work and financial
plan for some Category 6 applications at
the discretion of the authorized officer
and provides only that the BLM ‘‘may
require’’ such plans. Preparing a work
and financial plan takes an average of 6
months to complete. The preparation of
a work and financial plan may not be
necessary if both the applicant and the
BLM authorized officer can agree, in
writing, on the cost to process the
action. This change will reduce the time
associated with establishing a cost
recovery account and improve the
Category 6 cost recovery process,
particularly for those actions requiring
close to 64 hours.
In this section, the rule adds a new
paragraph (b)(4) and redesignates
existing paragraphs (b)(4) and (b)(5) as
paragraphs (b)(5) and (b)(6),
respectively. New paragraph (b)(4) states
that the BLM may collect a deposit
before beginning work on a Category 6
project. Previously, when an application

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fell under Category 6, it took an average
of 6 months to complete the details of
the agreement, which includes a work
and financial plan. The communications
industry has indicated that when they
are charged a Category 6 cost recovery
fee, the deposit is usually between
$11,000 and $15,000. The advanced
collection of a deposit will shorten the
time for processing an application by
allowing the BLM to begin processing
the application during the 6 months it
usually takes to complete a cost
recovery agreement. If the BLM
determines the deposit is not adequate,
the applicant can prepare a work and
financial plan to provide additional
funds under a cost recovery agreement.
One commenter expressed support for
the proposed rule’s provisions for
collecting a deposit prior to initiating
work to process Category 6 applications
and giving discretion to the authorized
officer to eliminate the requirement for
a work and financial plan. The
commenter further recommended the
BLM consider removal of work and
financial plan requirements entirely for
Category 6 applications.
As in the proposed rule, the final rule
modifies this section to make work and
financial plans discretionary. In many
instances such plans will no longer be
required; however, some more complex
ROW authorization situations may still
require plans, which will benefit both
the applicant and the BLM. Otherwise,
the final rule makes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Section 2804.20 How does the BLM
determine reasonable costs for Category
6 right-of-way activities?
Section 2804.20 is amended by
revising the title from ‘‘How does BLM
determine reasonable costs for
Processing Category 6 or Monitoring
Category 6 applications?’’ to read, ‘‘How
does the BLM determine reasonable
costs for Category 6 right-of-way
activities?’’
The rule revises the last sentence in
the introductory text of this section,
which stated, ‘‘While the BLM considers
your written analysis, the BLM will not
process your Category 6 application.’’
Under this final rule, if the BLM
requests additional information, the
BLM will continue to work on your
application while you are responding to
our request if a deposit has been
received by the BLM as provided in
§ 2804.19(b)(4). The BLM finds that this
approach will lead to more efficient
ROW processing and monitoring.
Paragraph (a) of this section describes
how the BLM applies the factors that

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inform whether costs are reasonable as
articulated in Section 304(b) of FLPMA
to determine the actual costs owed to
the BLM. The rule removes the
reference to the BLM State Director, and
instead the provision refers only to the
BLM. This does not change how the
BLM applies the ‘‘reasonableness’’ cost
factors, and the decision is still
appealable under § 2801.10. This change
improves the cost recovery process by
enabling the BLM to make the
determination regarding reasonable
costs for a Category 6 cost recovery at
the appropriate management level based
on the BLM’s internal delegations of
authority on a case-by-case basis. The
final rule makes no changes to the
version of this section that appeared in
the proposed rule.
Section 2804.21 What other factors
will the BLM consider in determining
cost recovery fees?
The rule amends this section by
revising the title and paragraphs (a),
(a)(2), and (a)(7) by removing references
to ‘‘processing and monitoring’’ and
replacing those references with more
general references to all ROW activities
to which cost recovery applies. This
change is consistent with the changes
described in § 2804.14.
Paragraph (b) of this section describes
how the BLM reviews your analysis of
the factors for your project to determine
the fees owed to the BLM. The rule
removes the reference to the BLM State
Director and instead refers only to the
BLM.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2804.25 How will the BLM
process my application?
The proposed rule would have
amended paragraph (a)(1) of this section
to add ‘‘unless your fees are exempt.’’
The final rule adds ‘‘unless you are
exempt from paying fees,’’ which is a
slight and nonsubstantive change
relative to the proposed rule. This
clarifying edit is necessary because the
BLM is not required to identify your
cost recovery fee if you are exempt from
fees.
The rule redesignates paragraph (c)(2)
of this section as paragraph (c)(3) and
adds a new paragraph (c)(2). Paragraph
(c)(2) of this section requires an
operating plan or agreement for all
powerline ROWs. Section 512 of
FLPMA calls on the BLM to provide
‘‘owners and operators of electric
transmission or distribution facilities
located on public lands . . . with the
option to develop and submit a plan’’
(43 U.S.C. 1772(c)(1)). Under existing

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§ 2804.25(c), the BLM may require
applicants to submit a plan of
development (POD) for a ROW, as
necessary. The operating plan or
agreement may be included in the POD.
The BLM generally requires PODs for
large projects but believes the risk of
wildfire associated with powerline
ROWs merits an explicit requirement.
One commenter suggested the BLM
revise the proposed rule language in
§ 2804.25(c)(2) to allow applicants to
provide a draft operating plan or
agreement with their application to
initiate application processing and
allow applicants to finalize the plan
collaboratively with BLM prior to grant
issuance. The final rule incorporates
this suggestion. See § 2805.21(a)(2).
Paragraph (c)(2) requires all powerline
ROW holders to submit an operating
plan or agreement unless the ROW
holder has an approved plan that meets
the requirements of § 2805.21 or unless
the ROW holder can show good cause
as to why it cannot meet this
requirement. Under this rule, the BLM
relies on its general authority to
condition ROW grants (43 U.S.C.
1761(b)(1)) upon an applicants’
submission of an operating plan or
agreement for all new powerline ROWs.
Applications to amend and renew
ROWs must follow the same procedures
as applications for new ROWs and,
therefore, would also be subject to a
requirement for an operating plan or
agreement. However, if an applicant
already has an approved plan that meets
the requirements of § 2805.21(c) (‘‘What
is an operating plan or agreement for
electric transmission and distribution
rights-of-way?’’), the applicant will not
be required to submit a separate plan.
The rule revises paragraph (d) of this
section by changing ‘‘completed
application’’ to ‘‘complete application.’’
This revision is consistent with the
addition of that term as a defined term
in § 2801.5. The rule also revises the
table in paragraph (d) of this section by
adding the word ‘‘Master’’ in front of the
word ‘‘Agreement.’’
One commenter expressed support for
the proposed rule’s requirement that the
BLM notify the applicant in writing if
processing a Category 1–4 application is
expected to take longer than 60 days.
This is an existing BLM requirement
that has now been codified in regulation
by the final rule. See § 2804.25(d). The
BLM intends to complete as many ROW
applications as possible during the 60day period.

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Section 2804.26 Under what
circumstances may the BLM deny my
application?
The rule adds a new paragraph (a)(9)
which provides that the BLM can deny
a ROW application when an applicant
does not comply with a deficiency
notice (see § 2804.25(c) of this subpart)
within the time specified in the notice
or with a BLM request for additional
information needed to process the
application.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2804.27 What fees must I pay
if the BLM denies my application or if
I withdraw my application or I
relinquish my grant?
This rule amends § 2804.27 by
revising the title to read ‘‘What fees
must I pay if the BLM denies my
application or if I withdraw my
application or I relinquish my grant?’’
This title acknowledges that you may
have to pay fees following a
relinquishment of a grant.
The rule makes minor revisions to
paragraphs (a) and (b) to make the
language more consistent with language
elsewhere in the existing regulations
and this rule. Paragraph (c) explains
how cost recovery fees are applied
under Category 5 or 6 if a holder
relinquishes their grant. The holder will
be liable for all costs the United States
has incurred in connection with the
grant, including relinquishment of the
grant. Any outstanding fees will be due
to the BLM within 30 days after the
holder receives the bill. The holder will
be refunded the amount of fees paid that
the BLM does not use to process the
holder’s grant. This new paragraph is
consistent with existing BLM practice,
but it is necessary to clarify and make
explicit in regulation the process for
relinquishing a grant and explain to
holders what is required of them.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.

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Subpart 2805—Terms and Conditions of
Grants
Section 2805.11 What does a grant
contain?
The rule adds a new paragraph (b) to
§ 2805.11 to provide that grants will
include access (ingress and egress)
rights to a ROW. The rule redesignates
existing paragraphs (b) and (c) as
paragraphs (c) and (d), respectively.
Many ROWs need access to and from
the ROW from outside the boundaries of
the ROW for operations and
maintenance. The rule adds an explicit

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requirement for the authorized officer to
include rights of ingress and egress in
the grant. Prior to 2005, the regulations
had included similar provisions for
ingress and egress.
The BLM has re-introduced these
provisions to address the need for grants
to include explicit provisions for
continued access throughout the term of
the grant. While most projects include
authorization for temporary access for
initial construction, if those temporary
access rights expire, then access for
future operations and maintenance
requires an additional authorization.
The requirement to include these rights
of ingress and egress in the grant will
ensure that the holder can engage in
timely and efficient operation and
maintenance of the grant.
The BLM may charge rent appropriate
to the nature of these access routes
outside the ROW boundary. For
instance, where ROW access is
facilitated by existing routes that are
open to public use, rent likely would
not be appropriate. By contrast, the BLM
may charge rent for newly constructed
roads or overland travel to authorized
ROWs on public lands. See the
preamble discussion of the revisions to
§ 2806.15(b)(3) for more information.
Three commenters expressed support
for the proposed rule’s requirement that
grants include both ingress and egress
access to ROWs, but these commenters
asked for additional language to: (1)
clarify that the provision regarding
ingress and egress will not result in
double cost recovery where access rights
are already covered by the
authorization; (2) allow for a broad
range of access rights, including
overland travel; and (3) recognize
secondary rights of ingress and egress
and limit ingress and egress to routes
that cross BLM parcels.
Another commenter recommended
the BLM modify the proposed rule
language to allow alternate routes and
emergency overland travel when
primary routes are impassible or closed
to avoid resource damage.
With respect to the first three
commenters’ suggestions, the final rule
does not make any changes to the
regulatory text. Under that the final rule:
(1) for minor category cost recovery
calculations, the BLM will ensure that
there is not double counting of costs if
there is already existing access to a
ROW; (2) alternative access rights may
be provided; however, unlimited
overland travel must be approved by the
BLM local office because of potential
damage to resource values; and (3) the
BLM will recognize valid secondary
rights; however, the BLM can only
authorize access over public lands, as

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the BLM has no authority to authorize
access over private lands for ROW
purposes. It will be the responsibility of
the potential ROW holder to secure any
necessary access across private land.
The last commenter’s recommendation
to allow alternate routes and emergency
overland travel when primary routes are
impassible or closed to avoid resource
damage may also be covered by terms
and conditions developed for a ROW
grant. However, there may be
limitations on determining alternate
routes due to potential damages to
resource values if some alternative
routes were to be allowed.
Another commenter requested that
the BLM revise the proposed rule
language to streamline the notice for
access road maintenance outside of the
ROW. The BLM elected not to revise the
rule in response to this comment as
authorization of access outside the ROW
is subject to NEPA and NHPA, so it
must be reviewed on a case-by-case
basis to determine if the proposed
access outside the ROW would impact
other resource values. One option to
address the commenter’s concern would
be for the BLM and the applicant to
develop terms and conditions in the
ROW to identify maintenance
requirements and procedures outside
the ROW.
A commenter also requested the BLM
assist utilities with coordinating road
maintenance plans in an equitable
manner for roads with multiple users,
including the BLM. The BLM elected
not to revise the final rule to address the
commenter’s request to coordinate road
maintenance agreements between
multiple users. The BLM requires ROW
holders to enter into road maintenance
agreements with other ROW holders
using the same roads. The road
maintenance agreements are contracts
between private entities that determine
among themselves the best way to
allocate costs and responsibilities for
shared-road maintenance. The BLM is
not involved in the contract negotiations
between the private parties but does
provide information to ROW applicants
regarding other road users with whom
the applicant will need to work to
establish the required road maintenance
agreement.
Having considered these and other
comments, the final rule makes no
changes to the version of this section
that appeared in the proposed rule.
Section 2805.12 With what terms and
conditions must I comply?
Former paragraph (a)(4) of this section
required holders to do everything
reasonable to prevent and suppress
wildfires on or within the immediate

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vicinity of the ROW. The language has
been changed from ‘‘immediate vicinity
of the ROW’’ to ‘‘adjacent to the ROW’’
to be consistent with the rule’s revision
of the definition of ‘‘substantial
deviation.’’
Paragraph 2805.12(a)(8)(vi) requires
holders to ensure that they construct,
operate, maintain, and terminate
facilities in accordance with the
authorization, including the approved
POD. This rule expands that provision
to extend to any operating plan or
agreement developed under the new
section 512 of FLPMA and these
regulations.
Paragraphs 2805.12(c)(5) and (d)(3)
are revised to provide that conditions
associated with damaged and
abandoned facilities that threaten
human health or safety are not subject
to the existing requirement that the BLM
wait 3 months before requiring the
holder to act. The BLM has experienced
situations where grant holders create
human health and safety hazards by
abandoning facilities and equipment
within their authorized ROW. If a
holder’s use is posing a health or safety
hazard to the public, per the rule, the
BLM is empowered to address it
immediately.
One commenter recommended the
BLM revise § 2805.12(a)(4) to clarify that
utilities retain discretion to determine
what fire prevention actions they will
carry out in, or adjacent to, the ROW.
Another commenter stated that the BLM
should eliminate language in the
proposed rule that would tie fire
suppression actions to ROW grants.
A utility’s fire prevention actions will
be provided in the operating plan or
agreement, as approved by the BLM.
This final rule does not eliminate
language that ties fire suppression
actions to the ROW because they are
important terms and conditions with
which a utility must comply to protect
other public land resource values and
human health and safety.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Section 2805.14 What rights does a
grant provide?
The rule revises the title from ‘‘What
rights does a grant convey?’’ to ‘‘What
rights does a grant provide?’’ to
eliminate any implication that a grant
gives ownership rights.
The final rule revises § 2805.14(b) for
clarity. Paragraph (b) already requires
BLM authorization before a grant holder
may ‘‘allow other parties’’ to use a
facility. As revised, the regulation will
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‘‘subleasing.’’ The revision will also
align with the language in this section
with that in new § 2865.14(b) providing
consistency between the regulations
governing communications uses and
those governing all other uses. This
change was not included in the
proposed rule.
The rule revises § 2805.14(d) by
removing the word ‘‘minor’’ from the
description of permissible trimming,
pruning, and removal of vegetation and
by adding an allowance to undertake
those activities to ‘‘protect public health
and safety.’’ The term ‘‘minor’’ has
caused confusion for the holders and is
imprecise. These revisions provide the
necessary detail for the ROW holder to
determine what vegetation management
they can and must do to operate and
maintain their ROW or facility,
including what does and does not
constitute a substantial deviation.
Several commenters suggested
changes to § 2805.14(d) to make it
broader or to make it narrower. One
commenter suggested the BLM amend
§ 2805.14(d) to allow, in addition, for
‘‘operations and maintenance
activities.’’ One commenter stated that
the BLM should revise the proposed
rule language to clarify that vegetation
management to maintain the ROW
includes the right to cut or trim offROW vegetation when the utility
determines it is necessary as part of its
vegetation management program. One
commenter expressed concern that
proposed revisions to § 2805.14(d) could
result in adverse impacts to other land
users and the environment and
recommended the BLM modify
§ 2805.14(d) to add a caveat that
permissible action would be undertaken
as defined in the projects’ operating
plans or agreements.
See the preamble discussion of
§ 2801.5 for additional discussion of
comments regarding the appropriate
scope of ‘‘vegetation management’’
under these regulations. This final rule
retains the language in § 2805.14(d) but
revises the definition of hazard tree to
be consistent with the USFS definition.
The USFS definition provides more
context for the type of vegetation and
defines a hazard tree as: [l]ikely to cause
substantial damage to the powerline
facility; disrupt powerline facility
service; come within 10 feet of the
powerline facility; or come within the
minimum vegetation clearance distance
as determined in accordance with
applicable reliability and safety
standards and as identified in the
special use authorization for the
powerline facility and the associated
approved operating plan or agreement
(36 CFR 251.51). This definition

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explains what work can be done outside
of the holder’s ROW to maintain it. The
final rule makes no changes to the
version of paragraph (d) that appeared
in the proposed rule.
Section 2805.14(e) is revised to allow
the holder to use vegetation removed
during maintenance of the ROW. The
use of existing vegetation will reduce
non-native species intrusion and
expedite maintenance by the holder.
The paragraph is also revised to align
with FLPMA’s statutory provision that
stone, soil, or vegetation may be used
only if any necessary authorization to
remove or use such materials has been
obtained pursuant to applicable laws
(43 U.S.C. 1764(f)). The final rule makes
no changes to the version of paragraph
(e) that appeared in the proposed rule.
Section 2805.15 What rights does the
United States retain?
This rule rephrases paragraph (a) of
this section to address the nature of the
BLM’s need for access to the lands and
facilities covered by an authorization.
Some authorizations may be for the use
of a facility, while others would be for
use of an area on the public lands. The
rule retains the requirement to provide
the BLM access to and within the lands
or facilities.
Section 2805.15(e) adds language to
clarify that after a grant is executed, any
modification of its terms and conditions
generally requires the BLM to issue a
new or amended ROW grant. The BLM
conducts analyses, including under
NEPA, before issuing a grant, and any
changes to the terms or conditions of a
grant will require the BLM to undergo
a new decision-making process. Any
such new decision must comply with
applicable laws, including NEPA, and
may require the BLM to complete a new
environmental analysis, use an existing
environmental analysis, or rely on a
categorical exclusion.
Under paragraph (f) of this section,
the BLM can terminate an authorization
for non-compliance. Section 2805.12
describes the terms and conditions that
a grant holder must comply with and
provides that the BLM can terminate a
grant for non-compliance. This
paragraph reinforces this potential
outcome.
Under paragraph (g) of this section,
the BLM can require a holder to submit
financial documents related to a
holder’s authorization. This addition is
consistent with the requirements of
existing § 2805.12(a)(15).
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.

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Section 2805.16 If I hold a grant, what
cost recovery fees must I pay?
The rule amends § 2805.16 by
changing the word ‘‘monitoring’’ in the
title to ‘‘cost recovery’’ such that the
title reads, ‘‘If I hold a grant, what cost
recovery fees must I pay?’’ The section
is also amended by revising paragraph
(a), adding a new paragraph (b), revising
current paragraph (b), and redesignating
it as paragraph (c).
As previously discussed, the rule
removes the monitoring cost recovery
fee table formerly located under
§ 2805.16(a). The rule also adds a
sentence referring the reader to
§ 2804.14(b), where they can find the
cost recovery table.
Under new § 2805.16(b), the cost
recovery fee schedule for Categories 1
through 4 will be updated on an annual
basis based on the previous year’s
change in the IPD–GDP, and the fees for
Category 5 will be updated according to
a given project’s Master Agreement.
Section 2805.16(c), which contains
the provisions of former § 2805.16(b),
explains where to obtain a copy of the
current year’s cost recovery fee
schedule. The rule provides updated
contact information for the holder to
request the schedule from the BLM’s
Division of Lands, Realty and Cadastral
Survey.
One commenter stated that proposed
revisions to the Category 1 processing
fee that includes monitoring fees for
work estimated to take 1 hour or less
should be eliminated because the
change is contrary to both FLPMA and
the MLA and would create a financial
burden to industry. This comment is
similar to a comment on § 2804.14.
Please see the response above in the
discussion of § 2804.14.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.

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Section 2805.21 What is an operating
plan or agreement for electric
transmission and distribution and other
rights-of-way?
Section 2805.21 codifies many of the
provisions of Section 512 of FLPMA
into the BLM’s regulations. Section
512(c) of FLPMA describes the
requirements for facility inspection,
operations and maintenance, and
vegetation management plans. Section
2805.21 describes the requirements for
operating plans or agreements, which
are consistent with the requirements of
the plans described in Section 512 of
FLPMA.
Under § 2804.25(c)(2) of the rule, and
as reflected in paragraph (a)(1),

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operating plans or agreements are
required for all new, renewed, or
amended electric transmission and
distribution ROWs. In addition, under
paragraph (a)(2), such plans may be
submitted to the BLM on a voluntary
basis by holders of existing electric
transmission and distribution ROWs.
Operating plans or agreements may be
advantageous to both the BLM and the
ROW holder by better defining
authorized activities, schedules for
maintenance, and wildfire risk
reduction measures, and by introducing
limits on a ROW holder’s liability under
the specific circumstances described in
this section.
Paragraph (b) of this section refers to
the Electric Reliability Organization
(ERO) standards and provides that those
standards may be incorporated into
operating plans or agreements
developed under this section. The
Energy Policy Act of 2005 created the
ERO: an independent, self-regulating
entity that enforces mandatory electric
reliability rules on all users, owners,
and operators of the nation’s
transmission system. The North
American Electric Reliability
Corporation (NERC) develops and
enforces reliability standards for North
America and is the ERO. NERC
reliability standards define the
reliability requirements for planning
and operating the North American bulk
power system. These standards apply
only to holders who are part of a bulk
power system, and holders subject to
these standards may incorporate them
into their operating plan or agreement.
The ERO reliability standards developed
by NERC are requirements the holder
must meet for operating and
maintaining the ROW and facility, such
as frequency of inspections and
minimum distance of vegetation
clearances from powerlines.
Incorporating these industry-wide
standards into the operating plan or
agreement will help to provide
consistency between NERC standards
and the plans submitted to the BLM and
USFS.
Two commenters requested that the
BLM revise § 2805.21(b) to recognize
that: (1) utilities do not manage to the
NERC-defined minimum vegetation
clearance distance; instead, their goal is
to avoid any possibility of
encroachment; and (2) vegetation
management strategies must respond to
all operating conditions. They
recommended that, when referring to
reliability standards, the rule should
indicate that the statutory term
‘‘disruption’’ can include things such as
arcing potential and that compliance
with the reliability standards requires

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vegetation be cleared to a MVCD plus X
feet safety zone (with X being defined
by the utility). Similarly, one
commenter suggested the BLM revise
the proposed rule language to clarify
that the utility, not the BLM, is
responsible for choosing the vegetation
clearance distances and the
management strategies it will employ to
assure vegetation will not encroach on
MVCD or violate reliability standards
under any operating conditions.
This final rule retains the proposed
language in § 2805.21(b) but revises the
definition of a hazard tree to be
consistent with the USFS’s definition.
The USFS definition extends to
vegetation that is dead or likely to die
or fail and ‘‘come[s] within the MVCD
as determined in accordance with
applicable reliability and safety
standards and as identified in the
special use authorization for the
powerline facility and the associated
approved operating plan or agreement.’’
The BLM further incorporated the USFS
definition of MVCD which addresses the
prevention of flashover. Approved
operating plans or agreements will
address any safety zones needed by the
ROW holder.
Paragraph (c) of this section describes
the requirements for operating plans or
agreements, consistent with Section
512(c) of FLPMA and with the USFS
final rule implementing Section 512.
Under paragraph (c)(1) of this section,
operating plans or agreements must
identify the applicable facilities to be
maintained.
Two commenters requested the BLM
integrate NERC standards and
definitions into BLM operating plans
and agreements and powerline
authorizations and avoid implementing
any standards or requirements that
could cause conflict with the NERC
standards. One commenter further
requested the BLM provide regulatory
guidance to assist agency staff in
understanding these reliability
standards.
The BLM does not believe these
changes are necessary. Operating plans
or agreements will be developed
collaboratively with the ROW applicant,
which will allow the applicant to
submit provisions that are NERC
compliant. Also, the BLM intends to
incorporate reliability standards and
regulatory guidance into staff training,
which is a more appropriate venue for
communicating industry standards.
Paragraph (c)(2) of this section
requires an operating plan or agreement
to account for the holder’s own
operations and maintenance plans for
the applicable facilities. Many ROW
holders have existing, internal plans for

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their operations and maintenance that
they have not previously been required
to submit to the BLM for approval,
including those who must comply with
ERO standards. The holder may be able
to submit these existing internal plans
to satisfy the BLM’s requirements for
operating plans or agreements. A holder
would not need to submit a new
operating plan or agreement if their
existing plan or agreement meets the
requirements of this section.
Paragraph (c)(3) of this section
requires that a plan describe how a
holder will operate and maintain a ROW
and facility, including for vegetation
management. These operations,
maintenance, and fire prevention
methods may be those required to
comply with applicable law, including
fire prevention measures, safety
requirements, and reliability standards
established by the ERO. While the ERO
describes the standards that must be
met, the holder must describe in the
operating plan or agreement how they
plan to meet those standards.
Under paragraph (c)(4) of this section,
an operating plan or agreement must
include schedules for a holder to notify
the BLM about non-emergency
maintenance, including when they must
seek approval from the BLM and when
the BLM must respond to that request.
Non-emergency maintenance is further
discussed in the preamble discussion of
§ 2805.22.
Four commenters requested the BLM
revise § 2805.21(c)(4)(ii) to clarify that
routine maintenance activities do not
require approval by the BLM if they are
part of an approved plan.
The scope of routine maintenance that
will require subsequent approval will be
determined on a case-by-case basis and
will be described in each individual
operating plan or agreement. The final
rule was not changed in response to
these comments as the rule already
contains provisions to this effect.
Paragraph (c)(5) of this section
requires that an operating plan or
agreement describe processes for
identifying changes in conditions and
modifying the approved operating plan
or agreement, if necessary. Either the
BLM or holder can determine that the
conditions in the ROW, which may
include environmental or accessibility
conditions, have changed. The operating
plan or agreement must describe how
the BLM and the ROW holder will
communicate and initiate any necessary
plan modifications. Communications
between BLM and the ROW holder are
discussed further in paragraph (e) of this
section.
Paragraph (c)(6) of this section
requires that the operating plan or

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agreement provide for removal and
disposal of cut trees and branches,
including plans for sale of forest
products. One commenter requested
that the BLM modify § 2805.21(c)(6) to
replace the phrase ‘‘removal and
disposal’’ with the word ‘‘disposition’’
to describe what a holder must do with
cut trees and branches. The BLM agrees
with this comment and the final rule
includes the suggested change.
Several commenters stated that the
BLM should further modify the
proposed rule language to clarify the
requirements for operating plans or
agreements. In response, the BLM
revised § 2805.21(c)(3) to clarify that an
operating plan or agreement must
include vegetation management,
inspection, operation and maintenance,
and fire prevention plans. Further
revision of this section was not
necessary as other provisions provide
sufficient clarity.
Under paragraph (d) of this section
and consistent with Section 512(c)(4)(A)
of FLPMA, the BLM will, to the extent
practicable, review and approve an
operating plan or agreement within 120
days of receiving the plan or agreement.
Two commenters suggested that the
BLM modify proposed rule language to
clarify: (1) that the 120-day review
period for an operating plan or
agreement begins when the applicant
submits a completed application as
defined in the Proposed Rule; (2) that
requests for additional information
during the review process (including
response time from the applicant and
the incorporation of additional
applicant responses) would not pause
the 120-day review timeframe; and (3)
how compliance and consultation
requirements under applicable
environmental laws, including the
NEPA, Endangered Species Act, and
NHPA, will be handled, either within
the 120-day review timeframe or after
plan approval but prior to
commencement of on-the-ground
activities.
For a renewal application, the 120day period will start upon receipt and
acknowledgement of a complete
application with a compliant operating
plan or agreement. For a new
application or amendment to an existing
ROW, the 120-day period will start
upon granting the ROW. Compliance
and consultation requirements under
applicable environmental laws,
including the NEPA, Endangered
Species Act, and NHPA, will be
addressed prior to the BLM granting a
new or amended ROW. For an existing
ROW with no Federal action needed,
the 120-day period will start upon the
receipt of a compliant operating plan or

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25935

agreement. Any operating plan or
agreement will be approved, to the
maximum extent practicable, within the
statutory 120-day period with the
understanding that factors such as the
time it takes an applicant to respond to
a request for additional information, the
number of proposed operating plans and
agreements under review by an
authorized officer, and the number of
powerline facilities covered under a
single operating plan or agreement may
affect the practicability of approving a
proposed operating plan or agreement
within 120 days.
Paragraph (e) of this section provides
that, when an operating plan or
agreement requires modifications, the
BLM will provide advance reasonable
notice to a holder that a modification is
necessary, following which the holder
must submit the proposed modification
to the BLM. The BLM will, to the
maximum extent practicable, review
and approve the proposed operating
plan or agreement modification in the
same 120-day timeframe that applies to
approval of new plans. This timeframe
is consistent with the requirements of
Section 512 of FLPMA.
Under paragraph (e)(4) of this section,
a holder may, while a proposed plan
modification is pending approval,
continue to operate and maintain the
ROW or facility in accordance with the
approved operating plan or agreement,
as long as the activity does not
adversely affect the identified condition
that necessitates the plan modification.
Although a plan modification may be
required, the BLM does not intend for
operations and maintenance to be
unnecessarily delayed in other areas of
the ROW that are not impacted.
Paragraph (f) of this section provides
that certain holders may enter into an
agreement with the BLM in lieu of an
operating plan. An agreement must
contain the same general requirements
described in this section. Agreements
need to include schedules, as described
in paragraph (c)(4) of this section and
are subject to the same modification
requirements of paragraph (e) of this
section.
Paragraph (g) of this section describes
the criteria that a holder must meet to
be eligible to enter into an agreement. A
holder may enter into an agreement
with the BLM if they are not subject to
the ERO reliability standards or if they
sold less than 1,000,000 megawatt hours
of electric energy for purposes other
than resale during each of the 3 calendar
years prior to enactment of Section 512
of FLPMA. These eligibility
requirements are established by Section
512(d)(1) of FLPMA and generally apply
to rural electric cooperatives and other

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small entities. Section 512(d)(2)(A) of
FLPMA requires the Secretary to ensure
that the minimum requirements of these
agreements ‘‘reflect the relative financial
resources of the applicable owner or
operator compared to other owners or
operators of an electric transmission or
distribution facility.’’
One commenter stated that the BLM
should cite Title XII, Section 215 of the
Energy Policy Act as a related law in
this section. The BLM does not believe
this change is necessary since
§ 2801.9(b) refers to the Federal Power
Act of 1935, which would include any
subsequent amendments to the 1935
Act, such as Title XII of the Energy
Policy Act.
Several commenters requested that
the BLM establish a standardized notice
and approval process for ROW
processing as the USFS has. The BLM
worked closely with the USFS as the
USFS developed its policy surrounding
FLPMA Section 512. The BLM intends
to provide further clarification to ROW
applicants through policy and to
develop new templates and review
existing templates that can be used to
expedite processing of ROWs.
Two commenters also proposed a new
NEPA categorical exclusion for
vegetation management as follows:
Approval of operating plan or
agreements, and activities conducted in
accordance with an approved operating
plan under a right-of-way grant for an
electric transmission and distribution
facility.
Conversely, two commenters
expressed concern that operating plans
or agreements could have extraordinary
circumstances or impacts outside the
ROW and should not automatically be
subject to a categorical exclusion.
The BLM appreciates the suggestion
of new categorical exclusions and may
pursue this avenue. The BLM must
work with the Council on
Environmental Quality and possibly
others to establish a new categorical
exclusion, and doing so is beyond the
scope of this rulemaking. The BLM will
consider using a categorical exclusion
when appropriate. The BLM must
review for the presence of extraordinary
circumstances on every project that may
be categorically excluded.
One commenter indicated that the
proposed rule should cover only
‘‘green’’ energy projects. The BLM has
the responsibility to process all
applications and manage all grants
consistently. For consistent land
management, the BLM will not change
the rule to cover only ‘‘green’’ projects.
Three commenters requested the BLM
modify the proposed rule to include
Master Agreement language or templates

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to establish a master permit and
agreement process for operating plans or
agreements at the state office level that
can be implemented by operators and
BLM field offices.
The BLM did not revise the language
in the proposed rule in response to
these comments as the agency is
addressing these requests through a
pilot master operations and
maintenance and consolidation program
in the BLM California State Office. The
BLM hopes to duplicate this program in
other states. The BLM anticipates
developing policies at the national level
that would then be adopted at the BLM
state level and adjusted as needed for
each state.
In all, the final rule includes only
minor, nonsubstantive changes to the
version of this section that appeared in
the proposed rule.
Section 2805.22 Special Provisions for
Vegetation Management for Electric
Transmission and Distribution Rightsof-Way
Section 2805.22 provides that ROW
holders can conduct vegetation
management related activities and
distinguishes between emergency and
non-emergency conditions. This section
implements the requirements of Section
512(c) and (e) of FLPMA.
Paragraph (a) of this section identifies
the conditions that are considered
Emergency Conditions and what the
holder is allowed to do during
Emergency Conditions without
immediate notification to the BLM. An
Emergency Condition exists when one
or more hazard trees have contacted, or
present an imminent danger of
contacting, an electric transmission or
distribution line. The rule specifies that
this threat can arise from a hazard tree
within or adjacent to a transmission line
ROW. Under paragraph (a)(1) of this
section, holders may prune or remove
the hazard tree to avoid the disruption
of electric service and to eliminate
immediate fire and safety hazards.
Paragraph (a)(2) requires the holder to
notify the BLM within one calendar day
after taking any such action.
One commenter recommended the
BLM revise § 2805.22(a) to clarify that
the grant holder has discretion as to
what vegetation poses an imminent
danger of contacting a transmission line
or is an immediate fire and safety
hazard. This commenter noted that
emergencies may involve issues other
than just vegetation in imminent threat
to contact a line. They also requested
that the one-day emergency notification
requirement be clarified to mean within
1 business day of the action.

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The BLM understands that there are
emergencies other than vegetation
issues, and this rule does not preclude
holders from addressing those
emergencies. This rule implements
Section 512 of FLPMA, which addresses
vegetation management. Therefore, the
emergencies anticipated under this rule
should only apply to vegetation
management. The BLM believes that the
grant holder has discretion as to what
vegetation must be trimmed or pruned
under Section 512 of FLPMA and these
implementing regulations. The BLM
will maintain a one-day emergency
notification requirement, regardless of
whether that one day is a business day,
because emergencies require immediate
resolution.
Paragraph (b) of this section identifies
Non-Emergency Conditions for which
the holder of a powerline ROW can
conduct vegetation management
activities. The holder must conduct
activities in accordance with the terms
and conditions of the ROW grant,
§§ 2805.12(a)(4) and 2805.14(d), and any
BLM-approved operating plan or
agreement.
Paragraph (b)(1) of this section
provides when a holder needs to request
approval to conduct vegetation
management activities. Under paragraph
(b)(1)(i), a holder must seek approval
from the BLM if the operating plan or
agreement specifically requires prior
approval. Prior approval for an activity
may be required in an operating plan or
agreement if the activity could have
cultural or environmental impacts.
Prior approval is required under
paragraph (b)(1)(ii) of this section if the
activity is not described in an approved
operating plan or agreement. Paragraph
(b)(2) of this section provides that if the
BLM does not respond to a request
within the timeframe described in an
approved operating plan or amendment,
and the vegetation management activity
is consistent with the holder’s approved
operating plan or amendment, a holder
may proceed with the vegetation
treatment activities. This provision will
help ensure that holders can undertake
necessary vegetation management
activities to further support the goals of
reducing fire risk.
Holders who do not have a BLMapproved operating plan or agreement
will not be affected by paragraphs (b)(1)
or (b)(2) of this section. Holders of
ROWs in effect as of the effective date
of this final rule will not have an
operating plan or agreement until they
amend or renew their ROW grant, or
until they voluntarily submit an
operating plan or agreement for
approval.

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The terms and conditions of some
existing grants do not sufficiently
describe the vegetation management
activities that a holder may take. In the
absence of an operating plan or
agreement, holders will be required to
comply with the terms and conditions
of the grant and §§ 2805.12(a)(4) and
2805.14(d). Even when not required,
holders will be encouraged to submit
operating plans or agreements for
existing ROWs to the BLM to improve
coordination regarding vegetation
management and wildfire risk
reduction.
Paragraph (c) of this section mirrors
§ 2805.12(a)(4) but adds specific
examples of reasonable actions that can
be taken by the holder, including
pruning or removal of vegetation and
cooperating with the BLM to investigate
fires.
One commenter asked the BLM to
update ePlanning pages to disclose
maintenance activities or public land
closures associated with vegetation
management. The BLM believes that
ePlanning is not the appropriate venue
for tracking vegetation management
requests but is exploring alternative
options for consolidation and disclosure
of vegetation management requests
consistent with FLPMA Section 512(h).
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Subpart 2806—Annual Rents and
Payments
Section 2806.13 What happens if I do
not pay rents and fees or if I pay the
rents or fees late?
In § 2806.13(e), the rule eliminates
limiting conditions on the BLM’s ability
to collect uncollected or undercollected
rent, which under the existing
regulation only extends to cases in
which there is a clerical error, an
adjustment to rental schedules, or an
omission or error in complying with
terms and conditions. The BLM can

now collect any rents and fees due to
the United States.
New § 2806.13(h), explicitly provides
that rent is due regardless of whether a
courtesy bill has been sent or received.
This addition clarifies current BLM
practice to the public.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Section 2806.14 Under what
circumstances am I exempt from paying
rent?
In § 2806.14(a)(4), the provisions
governing communications sites are
deleted. The exemptions described in
§ 2866.14(b) encapsulate the language
that has been removed from § 2806.14.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Section 2806.15 Under what
circumstances may BLM waive or
reduce my rent?
The BLM has received feedback from
customers about inconsistencies in how
BLM approves waivers or reductions in
rent. Therefore, § 2806.15(b) clarifies
that a BLM State Director is the
authorizing official with respect to
rental reductions and waivers.
Under former paragraph (b)(3) of this
section, the BLM could not reduce or
waive rent if a holder has a ROW in
connection with the grant at issue for
which the United States receives
compensation. The final rule rewrites
that provision to allow for a reduction
or waiver of rent if a holder’s grant
describes the use of existing routes
outside of the ROW that are used to
access the ROW. These revisions are
consistent with § 2805.11(b), which
requires a grant to include and identify
new and/or existing routes that would
be used for ingress and egress. The BLM
will charge rent appropriate to the
nature of these access routes. For
instance, where ROW access is
facilitated by existing routes that are

25937

open to public use, rent would likely
not be appropriate. By contrast, the BLM
will charge appropriate rent for roads to
ROWs on public lands newly
constructed by a holder. See the
preamble discussion of § 2805.11 for
more information.
Existing § 2806.15(c) has been
redesignated as § 2806.15(b)(5) and
revised to maintain consistency with the
edits made in § 2806.15(b). With the
added reference to the BLM State
Director in paragraph (b) of this section,
it is appropriate to redesignate existing
paragraph (c) as paragraph (b)(5).
Waiving or reducing rent under
paragraphs (b)(1) through (b)(5), as
revised by this rule, will be at the
discretion of the BLM State Director.
This revision is consistent with existing
BLM practice.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2806.20 What is the rent for a
linear right-of-way grant?
Paragraph (c) of this section is revised
to update the contact address of the
BLM and highlight availability of the
Per Acre Rent Schedule on the BLM
website.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Sections 2806.30

Through 2806.44

The rule removes §§ 2806.30 through
2806.44, including the header
‘‘COMMUNICATION SITE RIGHTS–
OF–WAY’’ that had preceded § 2806.30.
Many of the requirements of these
sections are now set out in new part
2860, which consolidates all
requirements for communications uses.
Any substantive changes to those
requirements are discussed in the
sections of this preamble focused on
new part 2860. The following table
shows where the requirements of
existing §§ 2806.30 through 2806.44 can
be found in this rule.

TABLE 2—FORMER SUBPART 2806 VS. NEW SUBPART 2866

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New section 2866 based on or moved from former section 2806
Former
section

Former title

New section

New title

Subpart 2806

Annual rents and payments

Subpart 2866

Annual rents and payments

Moved from
§ 2806.30.
Moved from
§ 2806.31.
Moved from
§ 2806.32.

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How does BLM determine the population strata
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§ 2866.30

What are the rents for Communications Uses?

§ 2866.31

How will the BLM calculate rent for Communications Uses in the schedule?
How does the BLM determine the population strata served for your facility?

§ 2866.32

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TABLE 2—FORMER SUBPART 2806 VS. NEW SUBPART 2866—Continued
New section 2866 based on or moved from former section 2806

Former
section

Former title

New section

New title

Subpart 2806

Annual rents and payments

Subpart 2866

Annual rents and payments

Moved from
§ 2806.33.

How will BLM calculate the rent for a grant or
lease authorizing a single use communication
facility?
How will BLM calculate the rent for a grant or
lease authorizing a multiple-use communication
facility?
How will BLM calculate rent for private mobile
radio service (PMRS), internal microwave, and
‘‘other’’ category users.
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?
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?
Can I combine multiple grants or leases for facilities located on one site into a single grant or
lease?
How will BLM calculate rent for a lease for a facility manager’s use?
How will BLM calculate rent for a grant or lease
for ancillary communication uses associated
with communication uses on the rent schedule?

Moved from
§ 2806.34.
Moved from
§ 2806.35.
Moved from
§ 2806.36.
Moved from
§ 2806.37.

Moved from
§ 2806.38.
Moved from
§ 2806.39.
Moved from
§ 2806.40.
Moved from
§ 2806.41.
Moved from
§ 2806.42.
Moved from
§ 2806.43, but the
terms would be
moved to § 2861.5.
Moved from
§ 2806.44.

How will BLM calculate rent for communication facilities ancillary to a linear grant or other use authorization?
How will BLM calculate rent for a grant or lease
authorizing a communication use within a federally-owned communication facility?
How does BLM calculate rent for passive reflectors and local exchange networks?
How will BLM calculate rent for a facility owner’s
or facility manager’s grant or lease which authorizes communication uses?

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Section 2806.52 Rents and Fees for
Solar Energy Development Grants
This section revises paragraphs (a)(6)
and (b)(2) to update the contact address
of the BLM and highlight availability of
the current solar energy acreage rent
schedule and the current MW rate
schedule for solar energy development
on the BLM website.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Section 2806.62 Rents and Fees for
Wind Energy Development Grants
The proposed rule proposed revisions
to paragraphs (a)(7) and (b)(2) to update
the contact address of the BLM and
highlight availability of the current
wind energy acreage rent schedule and
the current MW rate schedule for wind
energy development on the BLM

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§ 2866.33

How will the BLM calculate the rent for a single
use communication facility grant?

§ 2866.34

How will the BLM calculate the rent for a multipleuse communication facility grant?

§ 2866.35

How will the BLM calculate rent for private mobile
radio service (PMRS), internal microwave, and
‘‘other’’ category uses?
If I am a tenant or customer in a facility, must I
have my own grant and if so, how will this affect
my rent?
How will the BLM calculate rent for a grant involving an entity with a single use (holder or tenant)
having equipment or occupying space in multiple BLM-authorized facilities to support that
single use?
Can I combine multiple grants for facilities located
at one site into a single grant?

§ 2866.36
§ 2866.37

§ 2866.38
§ 2866.39
§ 2866.40

§ 2866.41
§ 2866.42
§ 2866.43

§ 2866.44

How will the BLM calculate rent for a grant for a
facility manager’s use?
How will the BLM calculate rent for an authorization for ancillary Communications Uses associated with Communications Uses on the rent
schedule?
How will the BLM calculate rent for communications facilities ancillary to a linear grant or other
use authorization?
How will the BLM calculate rent for Communications Uses within a federally owned communications facility?
How does the BLM calculate rent for passive reflectors and local exchange networks?
How will the BLM calculate rent for a facility owner’s or facility manager’s grant which authorizes
Communications Uses?

website. However, the BLM intends to
address this in a separate rulemaking.
Therefore, this portion of the proposed
rulemaking is not carried forward in this
final rule.
Subpart 2807—Grant Administration
and Operation
Section 2807.10 When can I start
activities under my grant?
One commenter stated that the BLM
should modify § 2807.10 in the rule to
clarify when a grantee may start
activities under a grant. More
specifically, they stated that this
provision should be revised to clarify
that it only applies to activities
requiring a Notice to Proceed in
approved operating plans. This
discussion is outside the scope of the
proposed rule and would require a full
rulemaking process to address it.

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Therefore, the BLM will not address this
comment in this final rule, and the final
rule makes no changes to § 2807.10.
Section 2807.12 If I hold a grant, for
what am I liable?
The rule redesignates existing
paragraph (g) of this section as
paragraph (h) and adds a new paragraph
(g). New paragraph (g) codifies the
liability provisions at Section 512(g) of
FLPMA and provides that the BLM may
not impose strict liability in certain
circumstances.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.

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Federal Register / Vol. 89, No. 72 / Friday, April 12, 2024 / Rules and Regulations
Section 2807.17 Under what
conditions may the BLM suspend or
terminate my grant?
The rule amends § 2807.17(b)(2) by
changing the word ‘‘terminate’’ to
‘‘relinquish.’’ This change aligns with
changes made to § 2886.17 and with the
nomenclature that the BLM uses when
processing ROWs. The rule also adds
§ 2807.17(b)(3) to allow the BLM to
terminate a ROW grant when a court
terminates or requires the BLM to
terminate the ROW. The rule
redesignates paragraph (b)(3) as
paragraph (b)(4).
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.

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Section 2807.20 When must I amend
my application, seek an amendment of
my grant, or obtain a new grant?
The rule amends paragraph (b) of this
section by replacing ‘‘processing and
monitoring fees’’ with ‘‘cost recovery
fees’’ for consistency with other
revisions in this rule.
Section 2807.20(d) explains that preFLPMA grants (i.e., those issued before
October 21, 1976) cannot be amended,
renewed, or reinstated. Section 706 of
FLPMA repealed numerous laws to the
extent they applied to the issuance of
ROWs by the BLM. Once a law has been
repealed, the BLM can no longer
approve any actions under the repealed
law. The rule combines existing
language from different parts of
paragraph (d), including paragraph
(d)(2), as paragraph (d)(1) and revises
the text to clarify that, when a holder
seeks to amend a pre-FLPMA grant, the
BLM will retain the holder’s pre-FLPMA
ROW for the portion of the holder’s
ROW not affected by the holder’s
amendment application unless the
holder agrees to accept a wholly new
and comprehensive grant of the ROW
under FLPMA.
Paragraph (d)(2) of this section
requires a new application and grant for
expiring authorizations. Paragraph (d)(3)
requires a new application and grant if
a pre-FLPMA authorization is
terminated due to non-compliance.
Finally, existing paragraph (d)(1) is
redesignated as paragraph (d)(4) and
notes that the BLM will issue any new
authorization under the authority of
FLPMA and explains that the new
authorization may have the same terms
and conditions and annual rents as the
original grant.
One commenter requested the BLM
modify § 2807.20 to clarify that when
the grant holder is a Federal agency, the
decision to terminate the existing grant
and issue a new grant must be a mutual

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decision pursuant to § 2807.17(d). The
BLM has not made the proposed change
as it believes that § 2807.17(d) is
sufficiently clear on this point. Nor does
the final rule make any other changes to
the version of this section that appeared
in the proposed rule.
Section 2807.22
grant?

How do I renew my

The rule establishes new customer
service standards for the BLM for
renewal applications. The rule modifies
paragraph (f) of this section to establish
a customer service standard of 60 days
for the BLM to review an application for
a renewal to determine if that
application has been timely submitted
and is complete and to notify the
applicant in writing of the BLM’s
determination. If the BLM determines
that a renewal application was timely
submitted and is complete, then its
written notice will confirm that, until
the BLM issues a decision on the
renewal application, the holder’s
existing grant will remain valid,
provided that the holder of the
authorization remains in compliance,
including with rent and bonding
obligations.
The rule adds a new paragraph (h) to
this section that establishes when
renewal applications will be subject to
the BLM’s customer service standards. If
grant holders do not comply with the
existing requirement to submit their
application at least 120 days before their
grant expires, the BLM will not be held
to the customer service standards for
processing the application. This
paragraph is not a substantive change
from existing practice.
One commenter stated that decisions
whether to renew grants should
consider the multiple use mission of the
BLM and whether closure would be
beneficial to wildlife and the public.
This commenter also requested that the
60-day time limit in § 2807.22(f) be
eliminated to allow for adequate time
for public input.
The BLM complies with NEPA on
each renewal, as well as the Endangered
Species Act and the NHPA. The new
§ 2807.22(f) allows the holder to
continue to pay rent and maintain a
valid authorization until the BLM has
properly processed the ROW renewal,
including completing appropriate NEPA
analysis and land use plan consistency
review. Upon renewal, the BLM would
issue a new grant likely with new,
updated stipulations. The 60-day time
limit is for determination of timeliness
and sufficiency of an application, not
completing NEPA analysis, surveys or
public comment. This final rule does

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25939

not make any changes to this paragraph
as it appeared in the proposed rule.
One commenter noted that allowing
ROW holders to continue to operate
under an existing grant while the BLM
and the ROW holder go through the
grant renewal process helped ROW
holders. The BLM appreciates the
support and acknowledgement of the
value of maintaining operations during
the renewal process.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Subpart 2808—Trespass
Section 2808.10 What is a trespass?
The BLM revised this paragraph in
the final rule to make explicit that
‘‘subleasing’’ without BLM
authorization is a trespass. The
regulations already prohibited this
practice, so the addition of the term
‘‘subleasing’’ merely clarifies the scope
of the trespass provision. This change
also makes the language of this section
consistent with the communications
uses trespass provision at new
§ 2868.10. This provision did not appear
in the proposed rule.
Subpart 2809—Competitive Process for
Leasing Lands for Solar and Wind
Energy Development Inside Designated
Leasing Areas
Section 2809.19 Applications in
Designated Leasing Areas or on Lands
That Later Become Designated Leasing
Areas
This final rule does not carry forward
a proposed revision to this section in
the proposed rule because the BLM
plans to address the distinction between
designated and undesignated leasing
areas in a separate rulemaking.
43 CFR Part 2860 Communications
Uses
The rule establishes part 2860,
Communications Uses. This new part
explains the requirements for
communications uses grants and
consolidates all communications usespecific provisions into one location.
The requirements of part 2800 will
continue to apply to communications
uses grants, unless inconsistent with
any provision of this new part. Some
sections in part 2860 contain provisions
that were removed from part 2800.
Some sections in part 2860 have a direct
parallel to sections in part 2800 but
contain additional requirements that
apply specifically to communications
uses. This preamble describes how the
rule differs from existing requirements.
Subparts 2861 through 2865 and 2868

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are generally based on the provisions of
existing subparts 2801 through 2805 and
2808, respectively, but contain
additional communications use
requirements. Table 3 shows the
relationship between subparts 2861

between subpart 2866 and subpart 2806.
This preamble describes new or revised
provisions. Provisions not discussed are
substantially similar to their existing
counterpart.

through 2865 and 2868 and subparts
2801 through 2805 and 2808. Most of
the requirements pertaining to
communications uses in existing
subpart 2806 were moved to subpart
2866. Table 4 shows the relationship

TABLE 3—SECTIONS OF THE FORMER RULE SUPPLEMENTING THE 2860 REGULATIONS FOR COMMUNICATIONS USES
Former section

Former title

New section

New title

Subpart 2801

General information

Subpart 2861

General information

N/A ....................
§ 2801.2 .............
§ 2801.5(b) ........
§ 2801.8 .............
§ 2801.9(a)(5) ....
Subpart 2802
§ 2802.11 ...........

N/A.
What is the objective of BLM’s right-of-way program?
What acronyms and terms are used in the regulations in this part?
Severability.
When do I need a grant?
Lands Available for FLPMA Grants

2861.5(b)
§ 2861.8
§ 2861.9

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

§ 2862.11

Applying for FLPMA Grants

§ 2804.10 ...........
§ 2804.12 ...........
§ 2804.24 ...........

Who may hold a grant?
What must I do when submitting my application?
Do I always have to submit an application for a grant
using Standard Form 299?

§ 2864.10
§ 2864.12
§ 2864.24

§ 2804.25 ...........

How will BLM process my application?

§ 2864.25

§ 2804.26 ...........

Under what circumstances may BLM deny my application?
How will the BLM prioritize my solar or wind energy
application?

§ 2864.26

Subpart 2805
§ 2805.14 ...........

§ 2808.10 ...........

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Applying for Grants
What should I do before I file my application?
What must I do when submitting my application?
Do I always have to use Standard Form 299 when
submitting my application for a Communications
Uses authorization?
How will the BLM process my Communications Uses
application?
Under what circumstances may the BLM deny my
application?
How will the BLM prioritize my Communications
Uses application?
Terms and Conditions Of Grants
What rights does a grant provide?

Subpart 2868

What is a trespass?

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§ 2864.35

§ 2865.14

Trespass

17:11 Apr 11, 2024

How does the BLM designate communications sites
and establish communications site management
plans?

Subpart 2865

What rights does a grant provide?

§ 2868.10

One commenter expressed support for
consolidating all the BLM
communications use rules into a new
part 2860 to help streamline application
development and processing. Two other
commenters also expressed general
support for the BLM’s efforts to
streamline regulations and to remove
barriers to wireless infrastructure
deployment.
The BLM agrees that moving
regulations pertaining to
communications uses to its own part
will help streamline the regulations.
Some commenters expressed concern
that this proposed rule could result in
undesirable economic growth and
development for some local
communities. The BLM agrees there
may be some growth in rural areas due
to additional broadband deployment.
The ROW authorization process
includes compliance with NEPA, which

Lands Available for Grants

Subpart 2864

Terms and Conditions Of Grants

Subpart 2808

What requirements of part 2800 apply to my grant?
What is the objective of the BLM’s Communications
Uses program?
What acronyms and terms are used in the regulations in this part?
Severability.
When do I need a grant?

Subpart 2862

Subpart 2804

§ 2804.35 ...........

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§ 2861.1
§ 2861.2

Communications Uses Trespass
What is a Communications Uses trespass?

would include analysis of the impacts of
communication facilities on
development and allow for public input.
Commenters argued that use of a
categorical exclusion to comply with
NEPA would not be appropriate for all
decisions to approve communication
uses and that streamlining should only
be permitted if there are no visual or
environmental impacts; the project is
not within 5 miles of a residentially
zoned neighborhood; tower placement
and specifications comply with the
United States Fish and Wildlife
Service’s (USFWS) Recommended Best
Practices for Communication Tower
Design, Siting, Construction, Operation,
Maintenance, and Decommissioning;
and the community meets FCC criteria
for being underserved and no other
options for achieving high speed
(broadband) internet connection are
available.

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The BLM agrees that it should comply
with NEPA for proposed actions, which
includes using categorical exclusions
when they apply, and the BLM uses the
USFWS’s Recommended Best Practices.
Subpart 2861—General Information
One commenter requested that the
BLM modify the proposed rule to clarify
that minor modifications that do not
substantially change the physical
dimensions of a tower or base station do
not trigger the need for a new
authorization.
The BLM believes that the final rule
adequately addresses the commenter’s
concern. As written, amended
authorizations are required when
additional areas are needed for the
existing facility such as the addition of
a generator or expansion of a building
or tower. A new authorization is
required when an applicant does not co-

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Federal Register / Vol. 89, No. 72 / Friday, April 12, 2024 / Rules and Regulations
locate within or on an existing
authorized facility. Minor actions such
as the replacement or addition of
antennas and in-kind facility
maintenance are considered
maintenance actions unless the action
deviates from what has already been
authorized. (See the definition of
substantial deviation in § 2801.5(b) and
related discussion above in this
preamble).
One commenter recommended that
the BLM modify the proposed rule to
include language specifying that
installation and use of fiber for Federal
communication purposes is authorized
and no amendment to the ROW is
necessary.
The BLM did not make changes to the
rule in response to this comment. All
actions taken on Federal lands require
an authorization, supported by
appropriate NEPA analysis, including
communications uses by Federal
agencies. The exception is when a use
is ancillary to the primary use and held
by the same company (e.g., fiber optic
for a powerline used solely by that
power company holding the ROW). In
such cases, an amendment to the
existing ROW may be sufficient.
One commenter encouraged the BLM
to clarify that appurtenant uses, such as
installation of fiber and related
operations, upgrades, and maintenance
of the fiber system, may be included in
the authorization for a transmission line
under part 2800 and addressed in the
operations and maintenance plan for the
transmission system without requiring a
separate communications site
authorization. The BLM agrees with this
comment as fiber optic directly
supporting a powerline or other facility,
when not resold as a commercial use, is
considered ancillary to the powerline.
The BLM recommends, but does not
require, a separate authorization for
fiber optic uses which are ancillary,
with the possibility of rent waiver for
ancillary uses so long as the use is
solely internal to the holder’s needs and
the service is not resold. The BLM
would not require a separate
communications site management plan
for an ancillary facility but may
incorporate it into an existing
communications site management plan.

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Section 2861.1 What requirements of
part 2800 apply to my grant?
Grants issued under this part must
comply with the requirements of part
2800, except as otherwise described in
this part. The final rule makes no
changes to the version of this section
that appeared in the proposed rule.

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Section 2861.2 What is the objective of
the BLM’s Communications Uses
program?
The BLM’s objective in this section is
to authorize and administer
communications uses under Title V of
the Federal Land Policy and
Management Act of 1976 and the
regulations in this part to qualified
individual, business, or governmental
entities. The final rule makes no
changes to the version of this section
that appeared in the proposed rule.
Section 2861.5 What acronyms and
terms are used in the regulations in this
part?
Section 2861.5 defines terms that are
specific to communications uses. This
section includes terms that had been
defined in existing § 2801.5. New
definitions are added to provide clarity
for the public as to how the BLM
administers authorizations for
communications uses under part 2860.
The definitions for ‘‘RMA,’’ ‘‘Base
Rent,’’ ‘‘Customer,’’ ‘‘Facility Manager,’’
‘‘Facility Owner,’’ ‘‘Site,’’ and ‘‘Tenant’’
have been moved from § 2801.5; the
definitions of ‘‘Facility’’ and ‘‘Grant’’
were copied from § 2801.5, and those
terms are now defined in both sections,
with the definitions here revised
slightly to reflect their specific
application in the context of
communications uses.
The rule adds the term and a
definition of ‘‘Annual inventory
certification’’ to clarify the nature of the
document that a holder must provide on
an annual basis (see § 2866.31(c)). The
final rule makes no changes to the
version of this definition that appeared
in the proposed rule.
The term ‘‘collocation’’ was defined
in § 2861.5 of the proposed rule as
‘‘[A]nother use, other than the holder’s
use, added to a communications use
facility. Collocation may occur inside
the building or on a tower.’’ The BLM
removed the definition of the term from
this final rule because the term is not
used in the regulatory text. A
commenter noted this discrepancy as
well as a related error in the paperwork
collection requirements in the
supplemental information published
with the proposed rule. The paperwork
collection requirements stated that
§ 2866.41 will add a regulation requiring
holders of ancillary facilities to request
collocation, and if the BLM does not
respond to a request for collocation
within 60 days, the collocation will be
deemed approved. Section 2866.41 in
the proposed rule did not include a
provision requiring holders of ancillary
facilities to request collocation nor a

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25941

provision that such a request would be
deemed automatically approved in 60
days if not denied by BLM. The
statement in the paperwork collection
requirements was in error and has been
removed from the preamble of the final
rule. As ‘‘collocation’’ is not used in the
text of the final rule, the definition of
the term is unnecessary and has been
removed from the final rule.
The final rule adds a definition of
‘‘communications facility,’’ which was
requested by a commenter. The
definition of ‘‘communication facility’’
is the same as the definition of ‘‘facility’’
in § 2861.5 and § 2801.5(b).
The rule adds the term and a
definition of ‘‘communications site’’ to
establish what is meant when describing
a communications site within an
authorization document. The lack of a
definition has caused confusion
because, often, the BLM and industry
refer to a ‘‘communications site’’ when
they really mean a ‘‘communications
facility.’’ This definition clarifies the
difference between the terms. The final
rule makes no changes to the version of
this definition that appeared in the
proposed rule.
The rule adds the term and a
definition of ‘‘communications site
management plans’’ to clarify that these
plans guide development and
operations at communications sites.
These plans are implementation level
plans, meaning that they take action
consistent with the relevant land use
plan (generally a Resource Management
Plan (RMP)). Communication site
management plans provide direction to
the users for the day-to-day operations
of the communications site and provide
holders and future proponents with the
development conditions for a particular
site. The final rule makes no changes to
the version of this definition that
appeared in the proposed rule.
The rule adds the term and a
definition of ‘‘communications uses’’ to
describe the types of uses considered to
be a communications use. This
definition includes all ROW uses to
which part 2860 applies. The final rule
makes no changes to the version of this
definition that appeared in the proposed
rule.
The definition for the term
‘‘Communications uses rent schedule’’
was moved here from § 2801.5. The
change is necessary to maintain
consistency in terminology throughout
new part 2860. The term
‘‘communications uses rent schedule’’
continues to apply to all types of
communications uses identified in the
previous definition of the term at
§ 2801.5 for purposes of identifying and
collecting rent, and it also applies to the

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following additional uses added to this
definition: ‘‘facility manager,’’ ‘‘internet
service provider (ISP),’’ ‘‘passive
reflector,’’ and ‘‘local exchange
network.’’ The final rule includes only
minor, nonsubstantive changes to the
version of this definition that appeared
in the proposed rule.
The rule adds the term and definition
of ‘‘duly filed application’’ to explain
that it is an application that includes all
the elements required by § 2864.25. One
commenter asked that the BLM change
the definition for the term ‘‘duly filed
application’’ to include a reference to
§ 2864.25, not § 2804.25 as it was
written in the proposed rule. In
response to this comment, the citation
in the rule changed to § 2864.25.
The rule adds the term and a
definition of ‘‘occupant.’’ Occupants are
entities, other than the holder of a grant,
which use a facility covered by that
authorization. The final rule makes no
changes to the version of this definition
that appeared in the proposed rule.
A commenter stated that the BLM
should revise the proposed rule
language to clarify that before the BLM
will issue a grant to allow placement of
equipment on Federal property (or
property owned by others who
presumably have similar concerns),
permission must be attained from the
agency.
The authorization for
communications uses provides for
subleasing of uses so the agency does
not need to be involved in every change
within a communications facility so
long as the subleased collocated use is
within the existing facility or on the
existing tower. The final rule is not
revised in response to this comment.
Section 2861.8 Severability
This section of the rule, which is
based on existing § 2801.8 and parallels
§ 2881.8 in the final rule, states that if
a court holds any provisions of the rules
in this part or their applicability to any
person or circumstances invalid, the
remainder of these rules and their
applicability to other people or
circumstances should not be affected. If
any portion of this final rule were to be
stayed or invalidated by a reviewing
court, the remaining elements would
continue to provide BLM with
important and independently effective
tools relating to the administration of its
ROW program. For example, the cost
recovery provisions in this final rule
may function independently of the
provisions concerning communications
uses and FLPMA Section 512. Similarly,
the provisions implementing FLPMA
Section 512 and the provisions
governing communications uses may

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function independently. Individual
sections of the rule may function
independently as well. The final rule
makes no changes to the version of this
section that appeared in the proposed
rule.
Section 2861.9
grant?

When do I need a

This section explains the
communications-related activities that
require an authorization. The final rule
makes no changes to the version of this
section that appeared in the proposed
rule.
Subpart 2862—Lands Available for
Grants
Section 2862.11 How does the BLM
designate communications sites and
establish communications site
management plans?
Section 2862.11 describes how the
BLM designates communications sites
and when communications site
management plans are prepared. This
section is based on existing § 2802.11,
which describes how the BLM
designates ROW corridors and
designated leasing areas.
Under § 2862.11(a), the BLM will
coordinate in the preparation of the
communications site management plans
with other Federal agencies, State, local,
and Tribal governments, and the public,
consistent with the coordination
requirements of existing § 2802.11(a).
Paragraph (b) identifies factors the
BLM considers when determining land
suitability for communications uses, in
addition to the factors described in
existing § 2802.11(b). One commenter
recommended adding ‘‘proximity to
private and residential property’’ to the
list of factors that the BLM considers
under paragraph (b). The BLM will not
revise § 2802.11(b) because the
suggested addition is already covered by
§ 2802.11(b)(7).
Paragraph (c) provides for
communications site management
plans, which are implementation-level
plans that tier to the applicable RMP.
While communications site
management plans are generally
adopted outside the land use planning
process, the BLM often refers to these
plans in RMPs. The identification of
communications sites and the adoption
of their complementary management
plans must be supported by appropriate
NEPA analysis, which may take the
form of an applicable categorical
exclusion or determination that a prior
NEPA analysis is adequate.
A commenter noted that RMP
revisions may be necessary if existing
RMPs do not address communication

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sites. Communication site management
plans are site specific plans regarding
the current and future communication
site uses at a specific location and are
a technical report to supplement an
RMP, since the site can change over
time throughout the life of the RMP.
This comment does not make any
suggestions for changes to the rule and
thus is outside the scope of this
rulemaking effort.
Ultimately, the final rule makes no
changes to the version of this section
that appeared in the proposed rule.
Subpart 2864—Applying for Grants
Section 2864.10 What should I do
before I file my application?
Section 2864.10 is based on existing
§ 2804.10. Section 2864.10(a) describes
the purpose of a preliminary application
review meeting. Preliminary application
review meetings provide valuable
information and reveal project
constraints to proponents. This
information should result in more
thorough and complete applications that
may streamline BLM application
processing, consistent with E.O. 13821
and a Presidential Memorandum
directed to the Secretary, both issued on
January 8, 2018. A preliminary
application review meeting is not a
requirement but is strongly encouraged.
Paragraph (b) prompts applicants to
ask the BLM for a copy of any
applicable communications site
management plan for the site of the
proposed project. By using an existing
communications site management plan
as a reference, applicants can better
develop an application that is consistent
with the site management plan, which
will help streamline the BLM’s
application processing.
Paragraph (c) specifies what an
applicant should acquire before
submitting an application to the BLM. A
complete communications uses
application almost always requires
proof of a Federal Communications
Commission (FCC) license. If an
applicant has already included a license
as part of its application, it eliminates
the need for the BLM to request that
information, and thereby cuts down on
processing times.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2864.12 What must I do when
submitting my application?
Section 2864.12 describes the
supplemental information needed to
accompany the SF–299, which is
required for all communications uses
applications. Section 2864.12 is based

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on existing § 2804.12 but includes
additional specific communications
uses requirements for applications.
Existing § 2804.12(f) states that the BLM
may require you to submit additional
information during the processing of
your application. This section
standardizes the requirements specific
to communications uses to streamline
the application process for these types
of authorizations. Paragraph (a) of this
section clarifies that when an
application for a ROW is filed
electronically, an actual signature may
not be required. Instead of a manual
signature, the applicant could meet the
BLM’s standards for electronic
commerce. This revision allows
applicants to file their applications
electronically. These changes streamline
application submissions and allow for
more flexibility in how applications are
submitted.
Paragraph (a)(1) of this section refers
to § 2804.12 for a list of attachments that
should be included in all applications.
Paragraph (a)(2) requires an applicant
to provide proof of their FCC license.
This requirement is consistent with
current BLM practice, and the BLM is
incorporating this requirement into the
regulations to notify applicants of what
to expect. There is no expectation that
this new language will create any
additional burden for communications
uses applicants.
Paragraph (a)(3) of this section
requires an applicant to submit GIS
shapefiles for a map of the proposed
project. This requirement is consistent
with changes that the final rule makes
to § 2804.12(a)(4), which already
requires an applicant to submit a map
of the proposed project and now further
requires an applicant to submit GIS
shapefiles or equivalent format, upon
request. This new requirement is
expected to reduce application
processing times by allowing the BLM
to integrate project locations into
existing resource datasets and analyze
the potential resource impacts more
quickly.
One commenter expressed support for
the requirement in § 2864.12(a)(3) for
applicants to submit GIS shapefiles with
an application for a ROW. However, the
commenter also noted that data shared
may exclude attributes that could be
considered critical infrastructure and
may require a nondisclosure agreement
prior to submittal. Conversely, another
commenter requested the BLM modify
language to: (1) retain flexibility in the
geographic information required rather
than requiring a specific file format (i.e.,
shapefiles); and (2) limit data collection
to what is necessary for the purposes of
site management. The BLM agrees with

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both comments. However, the data
shared need to be in a format acceptable
to the BLM so that the agency can use
them in the analysis of the proposed
action. The final rule reflects a
compromise position that requires data
to be submitted in GIS shapefiles or an
equivalent format. The BLM collects
potential siting information such as
facilities, ROW boundaries, surface
disturbance, and access roads from
applicants for interdisciplinary analysis.
Per 43 CFR 2804.13, the BLM will keep
confidential any information marked as
such to the extent allowed by law.
Paragraph (a)(4) of this section
requires an application to include draft
engineering or construction drawings.
By including these drawings, applicants
should expect faster application
processing times. An applicant usually
produces draft construction drawings
before an applicant intends to submit
their application, so the BLM does not
expect this requirement to create any
additional burden. The BLM expects
that the inclusion of this information in
the application will streamline
application processing times.
Paragraph (a)(5) of this section
requires that a communications uses
application include technical data
related to communication equipment
used in and on the proposed facility.
This rule specifies the types of technical
data, such as frequencies and power
output of the proposed use, that
applicants must submit to allow the
BLM to determine whether the proposed
use would be consistent with the
applicable communications site
management plan and would be
compatible with existing
communications uses at the proposed
communications site. This provision is
consistent with current BLM policy,
which requires this information from
applicants.
Paragraph (a)(6) requires an applicant
to provide a communications uses plan
of development (POD) in support of an
application. The BLM may require a
POD for an application under
§ 2804.25(c). The POD is an essential
tool for the BLM to understand the
scope and complexity of the proposed
project. A complete POD can drastically
reduce the time spent on processing an
application, primarily during the NEPA
process. Since BLM policy already
requires a POD to be submitted with all
applications, this rule should not create
an additional burden on the applicant.
Paragraph (b) states that the BLM may
require additional information from an
applicant about their application while
it is being processed. For example, the
BLM may require an applicant to submit
information about the applicant’s plans

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25943

to comply with a visual plan included
in the RMP for the area (e.g., paint color
or stealth design). These changes
explain that the BLM will not process
an application until the additional
information has been submitted. The
BLM anticipates this change will help
expedite application review and
processing. This paragraph is based on
existing § 2804.12(f).
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Section 2864.24 Do I always have to
use Standard Form 299 when
submitting my application for a
Communications Uses authorization?
This section requires applicants to use
Standard Form 299 to file applications
for communications uses. The final rule
makes no changes to the version of this
section that appeared in the proposed
rule.
Section 2864.25 How will the BLM
process my Communications Uses
application?
Section 2864.25 provides that the
BLM will process communications uses
applications consistent with existing
§ 2804.25. In addition, this section
requires the BLM to approve or deny a
duly filed application for a grant within
270 days. This is in accordance with the
MOBILE NOW Act, which requires
Federal agencies to approve or deny a
communications facility installation
application within 270 days of receiving
a duly filed application. The BLM
believes this new regulation will
shorten application processing times
and establish consistency among BLM
offices.
Two commenters expressed support
for the 270-day timeline to help
expedite application review times and
decisions. One commenter requested
that the BLM clarify whether the 270day timeline outlined in proposed
§ 2864.25 would affect public
involvement opportunities, including
scoping and comment period durations.
The 270-day processing time limit is
not discretionary. It is a legislatively
mandated requirement of the MOBILE
NOW Act. The MOBILE NOW Act
requires agencies to approve or deny
applications within 270 days of a duly
filed application. (See definitions at 43
CFR 2861.5 for the definition of a duly
filed application.) For the large majority
of applications, the 270-day processing
time limit is sufficient for BLM to
complete the NEPA process, including
the public comment period. All public
comments on proposed actions subject
to the 270-day processing time limit will

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need to be delivered to the agency
within the timeframes given for public
comments to ensure the BLM has time
to review and, where appropriate,
incorporate comments into the NEPA
analysis. The BLM does not anticipate
shortening public comment periods, but
for proposed actions subject to the 270day processing time limit, the agency
will have less ability to review and
incorporate comments received after the
timeframes given for public comment.
While the BLM normally meets the
270-day time frame, sometimes the BLM
is not able to complete its application
review process in that time. Any work
conducted beyond the 270 days should
be with the applicant’s agreement.
One commenter recommended the
BLM further modify this language to
indicate that an application will be
deemed complete after BLM notification
of completeness or the passage of 60
days from submission of a duly filed
application, whichever is earlier.
Because the BLM cannot process an
incomplete application, the BLM cannot
adopt the commenter’s suggestion that
an application be deemed complete 60
days after it is filed, regardless of the
completeness of the application. If an
application is incomplete, the BLM will
notify the applicant within 60 days of
receiving the application as to what is
needed to complete the application.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2864.26 Under what
circumstances may the BLM deny my
application?
Section 2864.26 is based on existing
§ 2804.26 and identifies when an
application for communications uses
may be denied. Reasons for denial
include the provisions of existing
§ 2804.26, along with reasons specific to
communications uses, such as
interference with other communications
users.
Paragraph (a) of this section is based
on § 2804.26(a)(1), which states that an
application may be denied if the
proposed use is inconsistent with any
other previously authorized ROW,
including communications uses on the
public lands. It is the goal of the BLM
to allow multiple communications uses
within a communications site area if
they are compatible with one another.
Existing communications uses ROW
authorization holders will be given the
opportunity during the application
process to provide evidence of potential
interference with their use. The BLM
will evaluate any such evidence to
determine if the subsequently proposed
communications uses might potentially

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interfere with the previously authorized
communications uses, and if so,
whether a denial is warranted under the
circumstances.
Under paragraphs (b) and (c) of this
section, an application can be denied if
the proposed use presents a public
health or safety issue or is not in
conformance with the RMP or
communications site management plan.
One commenter requested the BLM
modify the proposed rule language to
provide the criteria the BLM will use
when deciding whether an application
is denied for failure to comply with
BLM requests for additional
information.
The BLM declines to change the rule
in response to this comment. The BLM
may require additional information
above what is specifically required in
the regulations in order to make an
informed decision on an application.
Additional information could be site
specific information, such as detailed
visual resource management analysis,
that is difficult to anticipate and
categorize in advance. Failure to receive
the information from an applicant
prevents the BLM from making a fully
informed decision. The BLM also uses
the seven criteria defined in § 2804.26
for denying an application. The BLM
will send a deficiency notice, usually
with a deadline, before denying an
application. If an application is denied,
the applicant has an opportunity to
appeal the decision.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2864.35 How will the BLM
prioritize my Communications Uses
application?
Section 2864.35 describes how the
BLM will prioritize applications for
grants. This section is based on existing
§ 2804.35, which describes how the
BLM prioritizes solar and wind
applications. Under this section, the
BLM will prioritize processing
applications for grants that meet the
needs of underserved, rural, and Tribal
communities and first responders. This
section was added in response to E.O.
13821, discussed earlier in this
preamble.
A commenter expressed support for
prioritizing applications for grants that
meet the needs of underserved, rural,
and Tribal communities and first
responders. The commenter requested
the BLM provide additional information
regarding how the categories are further
defined and how they might be
prioritized amongst each other in the
event a given site is proposed on

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property that overlaps multiple
categories.
The BLM did not address the portion
of the comment requesting the BLM
further define and prioritize the
categories of ‘‘underserved,’’ ‘‘rural,’’
‘‘Tribal,’’ and ‘‘first responder.’’ The
BLM will address each application on a
case-by-case basis and will provide
further guidance on this issue as
necessary. The final rule makes no
changes to the version of this section
that appeared in the proposed rule.
Subpart 2865—Terms and Conditions of
Grants
Section 2865.14
grant provide?

What rights does a

Section 2865.14 describes the rights
provided by a grant, in addition to the
rights described in existing § 2805.14.
Paragraph (a) of this section is based
on existing § 2805.14(a) but has been
revised to clarify that only facilities
explicitly allowed by an authorization
are acceptable. The final rule makes no
changes to the version of this paragraph
that appeared in the proposed rule.
Paragraph (b) of this section is based
on existing § 2805.14(b) and revises the
language so that subleasing provisions
are consistent between communications
uses and all other ROWs. In response to
a commenter’s request to clarify the
term ‘‘subleasing’’ as it relates to the
rights granted under an authorization
and whether subleasing refers only to
collocations within or on authorized
facilities, this final rule revises the
proposed rule to include definitions of
‘‘ancillary’’ and ‘‘subleasing’’ in § 2801.5
to help clarify each term.
Paragraph (c) of this section is based
on existing § 2805.14(c) and states that
the authorization holder may allow
another entity to conduct day-to-day
operations of the facility, as authorized
by the BLM. Section 2805.14(c)
describes access to lands, but this
section instead refers to ‘‘lands or
facilities.’’ This change is consistent
with other changes to the regulations
moved to new part 2860 from part 2800,
which acknowledge that an
authorization may be either a grant to
use a facility or a grant for the use of
public lands. The final rule makes no
changes to the version of this paragraph
that appeared in the proposed rule.
Paragraph (d) of this section sets the
standard length for a grant at 30 years.
The BLM considers a 30-year-term to be
consistent with Section 504(b) of
FLPMA’s ‘‘reasonable term’’ limitation,
and that interpretation is being carried
forward for grants under this new part.
The BLM may determine in a given case
that a shorter term is appropriate for an

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authorization. For example, a BLM
office could determine the resource
issues at the proposed site, such as
environmental or Tribal concerns, may
warrant a shorter term for the
authorization. One commenter
expressed support for the 30-year term
for communications use grants included
in the proposed rule, as consistent with
FLPMA, because it will provide
increased investment certainty for
applicants. The final rule makes no
changes to the version of this paragraph
that appeared in the proposed rule.
One commenter requested the BLM
modify proposed rule language to
address when and how owners can
attain rights to keep beam paths that
require clear line-of-sight

communication free of obstructions on
BLM-managed land.
The BLM is not modifying the
proposed rule in response to this
comment. It is the holder’s
responsibility to propose
communications use locations on public
lands that meet the needs of the
applicant. The applicant is responsible
for including issues such as the beam
path reliability in their POD. The POD
should contain clear direction as to how
the holder would need to operate and
maintain their beam path in the future
to achieve a clear path for operations.
The agency would subsequently analyze
the proposal under NEPA. The final
approved POD would then set the

25945

course for future maintenance actions
by the holder.
Subpart 2866—Annual Rents and
Payments
Subpart 2866 contains the rental
requirements for grants. Many of the
sections have been moved from existing
subpart 2806 with no substantive
changes from existing requirements. The
changes from existing requirements are
intended to streamline the rental
process for communications uses and
are discussed in detail in the following
section-by-section analysis. The
following chart shows which sections of
existing subpart 2806 are moved into
subpart 2866.

TABLE 4—NEW SUBPART 2866 VS FORMER SUBPART 2806
New section 2866 based on or moved from former section 2806
Former section

Former title

New section

New title

Subpart 2806

Annual rents and payments

Subpart 2866

Annual rents and payments

Based on § 2806.14
Based on § 2806.15
Based on § 2806.23

Moved from ..............
§ 2806.30 ..................
Moved from ..............
§ 2806.31 ..................
Moved from ..............
§ 2806.32 ..................
Moved from ..............
§ 2806.33 ..................
Moved from ..............
§ 2806.34 ..................
Moved from ..............
§ 2806.35 ..................
Moved from ..............
§ 2806.36 ..................
Moved from ..............
§ 2806.37 ..................

Moved from ..............
§ 2806.38 ..................

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Moved from ..............
§ 2806.39 ..................
Moved from ..............
§ 2806.40 ..................

Moved from ..............
§ 2806.41 ..................
Moved from ..............
§ 2806.42 ..................

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Under what circumstances am I exempt from paying rent?
Under what circumstances may BLM waive or reduce my rent?
How will the BLM calculate my rent for linear
rights-of-way the Per Acre Rent Schedule covers?
What are the rents for communication site rightsof-way?
How will BLM calculate rent for a right-of-way for
communication uses in the schedule?
How does BLM determine the population strata
served?
How will BLM calculate the rent for a grant or
lease authorizing a single use communication
facility?
How will BLM calculate the rent for a grant or
lease authorizing a multiple-use communication
facility?
How will BLM calculate rent for private mobile
radio service (PMRS), internal microwave, and
‘‘other’’ category uses?
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?
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?
Can I combine multiple grants or leases for facilities located on one site into a single grant or
lease?
How will BLM calculate rent for a lease for a facility manager’s use?
How will BLM calculate rent for a grant or lease
for ancillary communication uses associated
with communication uses on the rent schedule?

§ 2866.14

How will BLM calculate rent for communication facilities ancillary to a linear grant or other use authorization?
How will BLM calculate rent for a grant or lease
authorizing a communication use within a federally-owned communication facility?

§ 2866.41

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§ 2866.15
§ 2866.23

Under what circumstances am I exempt from paying rent?
Under what circumstances may the BLM waive or
reduce my rent?
How will the BLM calculate my rent for linear
rights-of-way for Communications Uses?

§ 2866.30

What are the rents for Communications Uses?

§ 2866.31

How will the BLM calculate rent for Communications Uses in the schedule?
How does the BLM determine the population strata served for your facility?
How will the BLM calculate the rent for a single
use communication facility grant?

§ 2866.32
§ 2866.33

§ 2866.34

How will the BLM calculate the rent for a multipleuse communication facility grant?

§ 2866.35

How will the BLM calculate rent for private mobile
radio service (PMRS), internal microwave, and
‘‘other’’ category uses?
If I am a tenant or customer in a facility, must I
have my own grant and if so, how will this affect
my rent?
How will the BLM calculate rent for a grant involving an entity with a single use (holder or tenant)
having equipment or occupying space in multiple BLM-authorized facilities to support that
single use?
Can I combine multiple grants for facilities located
at one site into a single grant?

§ 2866.36

§ 2866.37

§ 2866.38

§ 2866.39
§ 2866.40

§ 2866.42

How will the BLM calculate rent for a grant for a
facility manager’s use?
How will the BLM calculate rent for an authorization for ancillary Communications Uses associated with Communications Uses on the rent
schedule?
How will the BLM calculate rent for communication
facilities ancillary to a linear grant or other use
authorization?
How will the BLM calculate rent for Communications Uses within a federally owned communications facility?

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TABLE 4—NEW SUBPART 2866 VS FORMER SUBPART 2806—Continued
New section 2866 based on or moved from former section 2806

Former section

Former title

New section

New title

Subpart 2806

Annual rents and payments

Subpart 2866

Annual rents and payments

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Moved from
§ 2806.43, but the
terms would be
moved to § 2861.5.
Moved from ..............
§ 2806.44 ..................

How does BLM calculate rent for passive reflectors and local exchange networks?

§ 2866.43

How does the BLM calculate rent for passive reflectors and local exchange networks?

How will BLM calculate rent for a facility owner’s
or facility manager’s grant or lease which authorizes communication uses?

§ 2866.44

How will the BLM calculate rent for a facility owner’s or facility manager’s grant which authorizes
Communications Uses?

For a discussion of the sections in
subpart 2806 that were removed by this
rule, see the preamble discussion of
subpart 2806.

The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.

Section 2866.14 Under what
circumstances am I exempt from paying
rent?

Section 2866.15 Under what
circumstances may the BLM waive or
reduce my rent?
Section 2866.15 includes rental
reduction or waiver provisions that
apply specifically to the
communications uses program.
Under paragraph (a) of this section,
the BLM can waive or reduce rent for
holders that are licensed by the FCC as
non-commercial and educational
broadcasters.
Under paragraph (b) of this section,
and consistent with existing Section
2806.15, the BLM can waive or reduce
rent for amateur radio clubs that provide
a benefit to the general public or to the
programs of the Secretary, for verified
nonprofit organizations, or for entities
that can demonstrate undue hardship
and public interest.
Paragraph (c) of this section identifies
when the BLM may not waive or reduce
rent. These exceptions include when an
organization operates for the benefit of
its members; when any portion of the
authorized facility is being used for
commercial purposes; when the holder
is charging the United States to occupy
a facility; and when a holder charges
fees beyond reasonable operation and
maintenance to an occupant whose rent
would normally be exempt or waived by
the BLM. This provision is consistent
with § 2866.14(b)(2).
Paragraph (d) of this section describes
when the BLM can revoke a holder’s
waiver of rent. Under paragraph (d) of
this section, the BLM will revoke a
holder’s waiver if it determines that the
authorization holder no longer meets
the criteria for a waiver.
This section provides several
additional ways by which the BLM
could waive the rent of users who
provide a public benefit and are not
operating solely to make a profit. This
section will streamline our processes by

Section 2866.14 identifies when a
holder is exempt from paying rent.
Paragraph (a)(1) of this section states
that Federal, State, and local
governments, along with their
instrumentalities, are exempt from
paying rent. Paragraphs (a)(2) and (a)(3)
are based on paragraphs (a)(3) and (a)(4)
of § 2806.14. Paragraph (b) describes the
exceptions to these exemptions. Under
paragraph (b)(1) of this section, a holder
will not be exempt from paying rent if
the holder is in trespass. This is not a
change from existing requirements but
has been added to the regulations to
provide clarity to holders.
Paragraphs (b)(2)(i) and (b)(2)(ii)
explain that a State or local government
entity is not exempt from paying rent
when the facility is being used for
commercial purposes or when the
principal source of revenue is generated
from customer use charges. These
requirements are consistent with
existing § 2804.16(a).
Under added paragraph (b)(2)(iii), a
State or local government entity is not
exempt from rent if it charges rent to the
United States Government for
occupancy within an exempt facility
(above routine operation and
maintenance costs). The BLM and other
Federal agencies are often charged rent
to occupy space in another
governmental (State or local
government) facility when their
authorization to occupy the public lands
is exempt from rent. The BLM is making
this change to encourage reciprocal rent
exemptions for the United States. The
provisions of this section are intended
to ensure that the Federal Government
is charged reasonable rates for
maintenance and operations only.

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demonstrating to the public when rent
can be waived or reduced and by
reducing the need for the BLM to further
analyze a request.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2866.23 How will the BLM
calculate my rent for linear rights-ofway for Communications Uses?
Section 2866.23 is based on existing
§ 2806.23 and provides some additional
clarification that linear communications
uses, such as for fiber optic and
telephone cable, will be charged rent
using the linear ROW rent schedule
found in § 2806.23. The
communications uses rent schedule is
specific to small areas, while the linear
schedule is used for long and narrow
ROWs, such as pipelines or power lines.
Since a linear communications use is a
long and narrow facility, the linear rent
schedule is more appropriate.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2866.30 What are the rents for
Communications Uses?
While much of part 2860 is based on
sections of part 2800, which would
remain as part of the rule, the
communications site rent provisions
(§§ 2866.30 through 2866.44) have been
moved from subpart 2806 to new
subpart 2866. Changes from existing
provisions are discussed in this and the
following sections of this preamble.
Section 2866.30 is substantively the
same as existing § 2806.30. This section
describes how the BLM will assess
annual rent for communications uses.
The final rule updates the address for
the BLM and makes other minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.

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Section 2866.31 How will the BLM
calculate rent for Communications Uses
in the schedule?
Section 2866.31 is substantively the
same as existing § 2806.31. There are no
substantive changes from existing
requirements, and the final rule
includes only minor, nonsubstantive
changes to the version of this section
that appeared in the proposed rule.
Section 2866.32 How does the BLM
determine the population strata served
for your facility?
Section 2866.32 is substantively the
same as existing § 2806.32, and there are
no substantive changes from existing
requirements.
Section 2866.33 How will the BLM
calculate the rent for a single use
communication facility grant?
Section 2866.33 is substantively the
same as existing § 2806.33, and there are
no substantive changes from existing
requirements.
Section 2866.34 How will the BLM
calculate the rent for a multiple-use
communication facility grant?
Section 2866.34 is substantively the
same as existing § 2806.34. There are no
substantive changes from existing
requirements, and the final rule
includes only minor, nonsubstantive
changes to the version of this section
that appeared in the proposed rule.
Section 2866.35 How will the BLM
calculate rent for private mobile radio
service (PMRS), internal microwave,
and ‘‘other’’ category uses?
Section 2866.35 is substantively the
same as existing § 2806.35. There are no
substantive changes from existing
requirements, and the final rule
includes only minor, nonsubstantive
changes to the version of this section
that appeared in the proposed rule.

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Section 2866.36 If I am a tenant or
customer in a facility, must I have my
own grant and if so, how will this affect
my rent?
Section 2866.36 is substantively the
same as existing § 2806.36, and there are
no substantive changes from existing
requirements.
One commenter requested the BLM
revise proposed § 2866.36(c) to permit
the BLM to collect the full annual rent
from either the grant holder or the
tenant. This comment is outside the
scope of this rule. The BLM is not
addressing payment collection
requirements in this rulemaking.

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Section 2866.37 How will the BLM
calculate rent for a grant involving an
entity with a single use (holder or
tenant) having equipment or occupying
space in multiple BLM-authorized
facilities to support that single use?
Section 2866.37 is substantively the
same as existing § 2806.37, and there are
no substantive changes from existing
requirements.
Section 2866.38 Can I combine
multiple grants for facilities located at
one site into a single grant?
Section 2866.38 is substantively the
same as existing § 2806.38 and is
revised to require submittal of an SF 299
for BLM authorization to combine
facilities into a single grant.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2866.39 How will the BLM
calculate rent for a grant for a facility
manager’s use?
Section 2866.39 is substantively the
same as existing § 2806.39. There are no
substantive changes from existing
requirements, and the final rule
includes only minor, nonsubstantive
changes to the version of this section
that appeared in the proposed rule.
Section 2866.40 How will the BLM
calculate rent for an authorization for
ancillary Communications Uses
associated with Communications Uses
on the rent schedule?
Section 2866.40 is substantively the
same as existing § 2806.40, and there are
no substantive changes from existing
requirements. The BLM considers
‘‘ancillary’’ communication facilities to
be those used solely for the purpose of
internal communications.
For the final rule, the BLM added a
reference to the new definition of
‘‘ancillary’’ found in § 2801.5 to provide
clarity to the reader.
Section 2866.41 How will the BLM
calculate rent for communications
facilities ancillary to a linear grant or
other use authorization?
Section 2866.41 is substantively the
same as existing § 2806.41, and there are
no substantive changes from existing
requirements.
One commenter requested that the
BLM modify the proposed rule language
to acknowledge the rent exemption
clause (§ 2866.14), so it is clear that the
Federal rent exemption applies in
circumstances where the
communications use facility is
authorized as ancillary to a grant but is
not used for the sole purpose of internal
communications.

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The final rule is not modified in
response to this comment. If the
communications use is not for the sole
purpose of internal communications,
then the service is implied to be a
commercial communications use. If that
is the case, then the agency is allowed
to charge for that use, and therefore, the
use would not be rent exempt.
One commenter recommended that
the proposed rule allow BLM to permit
fiber optic cable on linear high voltage
transmission lines as ancillary or
appurtenant communication facilities
and equipment that support the electric
transmission grid.
The BLM believes that the final rule
accounts for this comment. Fiber optic
and microwave directly supporting a
powerline or other facility, when not
resold as a commercial use, is
considered an ancillary facility, and will
continue to be rent exempt. Therefore,
the final rule is not modified in
response to this comment.
Section 2866.42 How will the BLM
calculate rent for Communications Uses
within a federally-owned
communications facility?
Section 2866.42 is substantively the
same as existing § 2806.42, and there are
no substantive changes from existing
requirements.
One commenter requested the BLM
modify § 2866.42(b) to clarify (1) how
the term Facility Owner (as defined in
§ 2861.5) applies to Federal agencies
that do not operate for personal or
commercial purposes, and (2) that
Federal agencies are exempt from
paying rent even if the BLM considers
them to be a facility owner.
The final rule is not modified in
response to this comment. By definition,
a Federal agency is a facility owner
because it owns and operates equipment
on public lands. The use by a Federal
agency is generally exempt from rent.
Occupants who occupy space within a
Federal facility will hold their own
authorization for which they must
generally pay rent to the BLM for their
communications uses of the public
lands. The final rule revises the
definition of a ‘‘facility owner’’ to
provide clarification that a Federal
purpose is one purpose for which a
facility owner may operate
communications equipment in the
facility. The final rule makes no changes
to the version of this section that
appeared in the proposed rule.
Section 2866.43 How does the BLM
calculate rent for passive reflectors and
local exchange networks?
Section 2866.43 is substantively the
same as existing § 2806.43, except that

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the definitions for ‘‘passive reflector’’
and ‘‘local exchange network’’ have
been added to § 2861.5 instead. The
final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Section 2866.44 How will the BLM
calculate rent for a facility owner’s or
facility manager’s grant which
authorizes Communications Uses?
Section 2866.44 is substantively the
same as existing § 2806.44. There are no
substantive changes from existing
requirements, and the final rule
includes only minor, nonsubstantive
changes to the version of this section
that appeared in the proposed rule.
Subpart 2868—Communications Uses
Trespass

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Section 2868.10 What is a
Communications Uses trespass?
Section 2868.10 is based on § 2808.10
but provides for additional
communications uses-specific
circumstances that the BLM considers
trespass. The intent of this section is to
define a trespass so that facility owners
and users understand how best to avoid
unauthorized use.
Paragraph (a) states that adding to or
altering from the communications
facilities described in the authorization
without approval from the BLM is a
trespass.
Paragraph (b) of this section states
that facility owners who permit
communications uses of other users by
allowing them to sublease any portion
of their facilities without approval will
be considered to be in trespass.
Paragraph (c) provides that natural
structures, such as trees and rocks, may
not be used to house or support
equipment without the BLM’s prior
approval, and that doing so constitutes
trespass. Using trees and rocks to house
or support equipment leads to
unacceptable resource damage and is
not a sustainable practice.
All the provisions in this section have
been a part of BLM policy for many
years, but it became clear that users
were confused about what the BLM
considers trespass. The BLM believes
that publishing these provisions as
regulations offers additional clarity to
the public and will lead to a reduction
in unauthorized use.
One commenter stated that the BLM
should modify the proposed trespass
language in section 2868.10 to address
concerns that: (1) language regarding
placement of any type of facilities is too
broad; and (2) if the regulations require
authorization and, if necessary, rent to

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be paid to the BLM for entities that want
to locate equipment on structures, the
holder will retain the right to determine
if the proposed use is compatible with
the holder’s pre-existing use.
The BLM is not modifying the rule as
suggested by the comment. If a use of
the public lands is not provided for in
an authorization it is considered an
unauthorized use and therefore a
trespass. An application for a ROW
should accurately describe the facilities
it seeks an authorization for, and the
BLM will include a description of the
authorized facilities within the ROW
grant. Collocated equipment should be
disclosed to the BLM at the time of
applications and prior to installation. If
undisclosed equipment is discovered
later by the BLM, it will be considered
unauthorized.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
43 CFR Part 2880 Rights-of-Way Under
the Mineral Leasing Act
The MLA requires that the applicant
reimburse the United States for
administrative and other costs incurred
in processing a ROW application. The
BLM refers to such costs as ‘‘actual
costs’’ and defines that term to include
the financial resources the BLM
expends in processing and monitoring
ROW activities under the MLA,
including the direct and indirect costs,
exclusive of management overhead
costs.
The MLA does not limit or qualify the
actual cost requirement, nor does it list
any factors that the BLM may or should
consider when determining
reimbursable costs. The BLM bases
actual cost information on Federal
accounting and reporting systems. The
BLM is making changes to part 2880 to
provide consistency with the FLPMA
ROW regulations at part 2800.
Part 2881—General Information
Section 2881.2 What is the objective of
the BLM’s right-of-way program?
This rule adds the words ‘‘wherever
practical’’ to the objective described in
§ 2881.2(c). This change is consistent
with § 2801.2(c). For a more detailed
discussion, please see the preamble
discussion for § 2801.2(c).
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2881.5 What acronyms and
terms are used in the regulations in this
part?
This rule amends the definitions of
terms that appear in § 2881.5(b) to be
consistent with changes to the

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definitions of those same terms in
§ 2801.5. For a detailed discussion of
these changes and the BLM’s response
to relevant comments, please see the
preamble discussion of § 2801.5.
Section 2881.7

Scope

This rule amends paragraphs (a) and
(b)(1) in § 2881.7. These modifications
clarify when an action will be processed
under the regulations of Part 2880 and
when an action will be processed under
the Application for Permit to Drill
(APD) regulations (43 CFR part 3160
and subpart 3171). Within the surface
use plan of operation area, the BLM will
process ‘‘related facilities,’’ as defined
in § 2881.5, under the APD regulations.
Once a pipeline or related facility leaves
the surface use plan of operation area
and is outside the boundary of the lease
area it will be considered ‘‘off lease’’
and, at the lease boundary, becomes an
activity processed under these
regulations to the extent it is still on
Federal land and subject to paragraph
(b). Moreover, pipelines and related
facilities operated by a party who is not
the lessee or lease operator of a Federal
oil and gas lease or that are downstream
from a custody transfer metering device
will be processed under these
regulations regardless of whether the
pipelines and related facilities are on or
off lease.
These changes do not impact oil and
gas operators, who must still coordinate
with the BLM to manage their pipelines
and related facilities. This rule ensures
consistency in BLM operations and how
these facilities are managed under these
regulations.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2881.8

Severability

The BLM is redesignating § 2881.9 as
2881.8 to be consistent with the
numbering of the equivalent sections in
parts 2800 and 2860. This section of the
rule states that if a court holds any
provisions of the rules in this part or
their applicability to any person or
circumstances invalid, the remainder of
these rules and their applicability to
other people or circumstances should
not be affected. If any portion of this
final rule were to be stayed or
invalidated by a reviewing court, the
remaining elements would continue to
provide BLM with important and
independently effective tools relating to
the administration of its ROW program.

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Subpart 2883—Qualifications for
Holding MLA Grants and TUPs
Section 2883.14 What happens to my
grant or TUP if I die?
Because an application is not an
inheritable interest, the BLM is
changing the title of this section from
‘‘What happens to my application,
grant, or TUP if I die?’’ to ‘‘What
happens to my grant or TUP if I die?’’
Paragraph (a) has been revised to
remove the reference to the applicant
and the application.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Subpart 2884—Applying for MLA
Grants or TUPs
Section 2884.11 What information
must I submit in my application?
This rule revises §§ 2884.11(a) and
2884.11(c)(6) for consistency with
§ 2804.12. For a detailed discussion of
commenter suggestions and changes to
this section, see the preamble
discussion of § 2804.12.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Section 2884.12 What are the fee
categories for cost recovery?
The rule revises the title of this
section to read, ‘‘What are the fee
categories for cost recovery?’’ for
consistency with § 2804.14. For a
detailed discussion of the other changes
to this section, please see the preamble
discussion of § 2804.14.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.

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Section 2884.13 When will the BLM
waive cost recovery fees?
The rule revises the title of this
section to read ‘‘When will the BLM
waive cost recovery fees?’’ rather than
‘‘Who is exempt from paying processing
and monitoring fees?’’ The BLM is
amending § 2884.13 for consistency
with § 2804.16. For a detailed
discussion of these changes, please see
the preamble discussion of § 2804.16.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2884.14 When does the BLM
reevaluate the cost recovery fees?
The rule revises the title of this
section to change ‘‘processing and
monitoring’’ to ‘‘cost recovery.’’ This
change is consistent with the proposed
changes to § 2804.15.

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The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2884.15 What is a Master
Agreement (Cost Recovery Category 5)
and what information must I provide to
the BLM when I request one?
The rule amends § 2884.15 to clarify
the use of a Master Agreement and to
replace the term ‘‘processing and
monitoring’’ with ‘‘cost recovery’’ to be
inclusive of administrative actions.
These changes are consistent with the
changes to § 2804.17. For a more
detailed discussion of these changes,
please see the preamble discussion of
§ 2804.17.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2884.16 What provisions do
Master Agreements contain and what
are their limitations?
The rule amends provisions in
§ 2884.16(a) that describe how
processing and monitoring activities are
included in a Master Agreement.
Section 2884.16(c) was added to clarify
that a Master Agreement will waive a
holder’s rights to request a reduction in
cost recovery fees. This is the current
practice of the BLM and is not a
substantive change. These changes are
consistent with the amendments to
§ 2804.18. For a more detailed
discussion of these revisions, including
changes to the final rule, please see the
preamble discussion of § 2804.18.
Section 2884.17 How will the BLM
manage my Category 6 project?
The rule amends § 2884.17 by revising
the heading to read ‘‘How will the BLM
manage my Category 6 project?’’ The
BLM also revised § 2884.17(a) to include
processing and monitoring activities.
Revised § 2884.17(b) describes what the
BLM will do in monitoring a grant.
Paragraph (b)(4) of this section states
that the BLM could collect a deposit
before beginning work on a Category 6
project. These changes are consistent
with the amendments to § 2804.19. For
a more detailed discussion of these
revisions, please see the preamble
discussion of § 2804.19.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Section 2884.21 How will the BLM
process my application?
The rule amends § 2884.21 for
consistency with the revisions made to
§ 2804.25. For a more detailed

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discussion of these revisions, please see
the preamble discussion of § 2804.25.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2884.23 Under what
circumstances may the BLM deny my
application?
The rule revises paragraph (a)(6) of
this section, which states that the BLM
could deny your ROW application if
you fail to comply with a deficiency
notice. This revision makes this
paragraph consistent with §§ 2804.26
and 2864.26.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2884.24 What fees must I pay
if the BLM denies my application, or if
I withdraw my application or relinquish
my grant or TUP?
The rule amends § 2884.24 to provide
consistency with § 2804.27. For a more
detailed discussion of these
amendments, please see the preamble
discussion of § 2804.27.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Section 2884.27 What additional
requirements are necessary for grants for
pipelines 24 or more inches in
diameter?
The rule amends § 2884.27 by revising
the title to read, ‘‘What additional
requirements are necessary for grants for
pipelines 24 or more inches in
diameter?’’ Also, this section is revised
to remove any reference to a temporary
use permit (TUP). Currently, any time a
new grant or TUP application is filed
with the BLM and the project involves
a pipeline 24 or more inches in
diameter, the regulations require BLM to
notify Congress of the filed application.
This rule eliminates the requirement
to report a TUP for several reasons. The
Mineral Leasing Act, which draws a
distinction between ROWs and
temporary permits, see 30 U.S.C. 185(e),
requires Congressional notification only
for ROWs. 30 U.S.C. 185(w). Extending
this statutory requirement to TUPs,
which authorize activities that are only
of a temporary and limited nature,
creates a significant, unnecessary
workload for BLM offices, the
Department, and Congress.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.

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Subpart 2885—Terms and Conditions of
MLA Grants and TUPs
Section 2885.12 What rights does a
grant or TUP provide?
The rule amends the title of § 2885.12
from ‘‘What rights does a grant or TUP
convey?’’ to ‘‘What rights does a grant
or TUP provide?’’ to be clear that the
BLM does not convey any ownership
rights to a ROW holder.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2885.17 What happens if I do
not pay rents and fees or if I pay the
rents or fees late?
The rule amends § 2885.17 to provide
consistency with § 2806.13. For a more
detailed discussion of these changes,
please see the preamble discussion of
§ 2806.13.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Section 2885.19 What is the rent for a
linear right-of-way grant?
The rule revises paragraph (b) to
update the contact address of the BLM
and highlight availability of the Per
Acre Rent Schedule on the BLM
website.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.

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Section 2885.24 If I hold a grant or
TUP, what cost recovery fees must I
pay?
The rule amends the title for
§ 2885.24 to read, ‘‘If I hold a grant or
TUP, what cost recovery fees must I
pay?’’ to include permitting and
monitoring activities. The rule revises
§§ 2885.24(a) and 2885.24(b) and adds a
new § 2885.24(c). Section 2885.24(a)
now refers you to § 2884.12(b) for the
descriptions of the minor category fees.
Section 2885.24(b) states that Categories
1 through 4 will be updated on an
annual basis. New § 2885.24(c) explains
how to obtain a copy of the current cost
recovery fee schedule.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.
Subpart 2886—Operations on MLA
Grants and TUPs
Section 2886.17 Under what
conditions may the BLM suspend or
terminate my grant or TUP?
Section 2886.17 is revised to add a
new paragraph (c)(3), which states that

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the BLM may terminate your grant or
TUP if it is terminated by court order.
If a court were to terminate a grant or
TUP, the BLM must implement the
court order. This is not a change to BLM
practice but provides clarity to the
public.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Subpart 2887—Amending, Assigning, or
Renewing MLA Grants and TUPs
Section 2887.10 When must I amend
my application, seek an amendment of
my grant or TUP, or obtain a new grant
or TUP?
Section 2887.10(b) is revised to
change the term ‘‘processing and
monitoring’’ to ‘‘cost recovery,’’
consistent with § 2807.20(b).
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2887.11 May I assign or make
other changes to my grant or TUP?
Section 2887.11(i) is added to clarify
that an authorization amendment is
necessary for a substantial deviation
from location or use.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2887.12 How do I renew my
grant?
The rule amends § 2887.12 to provide
consistency with § 2807.22. For a more
detailed discussion of these changes,
please see the preamble discussion of
§ 2807.22.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Subpart 2888—Trespass
Section 2888.10 What is a trespass?
The BLM revised this paragraph in
the final rule to add ‘‘subleasing’’ to the
acts that may constitute a trespass,
consistent with the similar revision to
§ 2808.10.
Part 2920—Leases, Permits and
Easements
Subpart 2920—Leases, Permits and
Easements: General Provisions
Section 2920.0–5 Definitions
Section 2920.0–5 is amended to add
the term and a definition of ‘‘cost
recovery’’ and is reorganized to be in
alphabetical order and to make minor,
nonsubstantive language changes.
The final rule includes only minor,
nonsubstantive changes to the version of
this section that appeared in the
proposed rule.

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Section 2920.6 Payment of Cost
Recovery Fees
The title of § 2920.6 is amended from
‘‘Reimbursement of costs’’ to ‘‘Payment
of cost recovery fees,’’ and the content
of the section is updated to reflect this
change. The change better explains the
process of collecting estimated cost
recovery fees before the work is
performed rather than afterward through
reimbursement.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
Section 2920.8 Fees
Section 2920.8 is amended by revising
§ 2920.8(b) to say, ‘‘cost recovery fees,’’
to provide consistency with the
revisions made to part 2800.
The final rule makes no changes to
the version of this section that appeared
in the proposed rule.
IV. Procedural Matters
Regulatory Planning and Review
(Executive Orders 12866, 14094 and
13563)
Executive Order (E.O.) 12866 (58 FR
51725, October 4, 1993), as amended by
E.O. 14094, provides that the Office of
Information and Regulatory Affairs
(OIRA) in the Office of Management and
Budget (OMB) will review all significant
rules. E.O. 13563 (76 FR 3821, January
11, 2011) reaffirms the principles of E.O.
12866 while calling for improvements
in the nation’s regulatory system to
promote predictability, reduce
uncertainty, and use the best, most
innovative, and least burdensome tools
for achieving regulatory ends. The E.O.
directs agencies to consider regulatory
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public where these
approaches are relevant, feasible, and
consistent with regulatory objectives.
E.O. 13563 emphasizes further that
regulations must be based on the best
available science and that the rule
making process must allow for public
participation and an open exchange of
ideas. The BLM has developed this rule
in a manner consistent with these
requirements. OIRA has concluded that
the rule is a significant regulatory
action.
This rule would not have a significant
effect on the economy. The BLM
estimated that the rule would have
distributional impacts in the form of
transfer payments of about $3.47 million
per year from firms and individuals to
the BLM. Transfer payments are
monetary payments from one group to
another that do not affect total resources
available to society.

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For more detailed information, see the
Economic and Threshold Analysis
prepared for this rule. The economic
analysis has been posted in the docket
for the rule on the Federal eRulemaking
Portal: https://www.regulations.gov. In
the Searchbox, enter ‘‘RIN 1004–AE60,’’
click the ‘‘Search’’ button, open the
Docket Folder, and look under
Supporting Documents.
One commenter disagreed with the
BLM’s findings in the Economic
Analysis that the rule would not
increase the burden on society or cause
detrimental economic effects and
requested that the BLM further evaluate
the rule’s compliance with Executive
Orders (E.O.) 12866 and 13563, with
particular focus on how public
comment periods could be affected by
the proposed changes to the regulation.
The BLM determined that the changes
made by this rule are administrative or
procedural in nature. Additionally, in
preparing this regulation, the BLM was
cognizant of the goal of minimizing
economic impacts to ROW applicants
and holders. For instance, entities that
make cost recovery payments may take
advantage of a Master Agreement which
in many instances will reduce their
costs. Also, there are opportunities for
users to request reductions in cost
recovery payments for hardship
situations. This rule will not shorten
public comment periods.
The BLM has evaluated the rule’s
compliance with E.O. 12866 and 13563.
Under E.O. 12866, the Office of
Information and Regulatory Affairs
(OIRA) determined that the final rule is
a significant regulatory action. The rule,
like all BLM regulations, will be subject
to a periodic review under E.O. 13563
to ensure the regulation remains
necessary.
There are several provisions in the
rule that help ensure the rule does not
increase the burden on society. For
instance, in § 2804.25, a new paragraph
is added to the rule requiring an
operating plan or agreement for all
powerline ROWs, which gives the BLM
an opportunity to ensure there is, in
every instance, a plan to reduce risk of
wildfire and other adverse impacts.
Section 2805.12 includes a provision
that the BLM may require grant holders
to remove facilities that pose health and
safety risks sooner than 3 months, as is
presently the case under the existing
regulation, thereby potentially reducing
adverse impacts of projects in such
cases. Section 2805.14 enhances
protection of safety and the
environment by removing the word
‘‘minor’’ from its discussion of removing
vegetation. Section 2805.15 includes
language clarifying that any change in

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the terms or conditions will require a
new grant, which may require a fresh
environmental analysis by the BLM.
Section 2806.13 expands the provision
for collecting unpaid rents, thereby
promoting compensation for the use of
public lands.
Revitalizing Our Nation’s Commitment
to Environmental Justice (E.O. 14096;
E.O. 12898)
Under Executive Order 14096,
‘‘Revitalizing Our Nation’s Commitment
to Environmental Justice for All’’ (which
builds upon Executive Order 12898 1)
agencies must, as appropriate and
consistent with applicable law, identify,
analyze, and address the
disproportionate and adverse human
health and environmental effects
(including risks) and hazards of
rulemaking actions and other Federal
activities on communities with
environmental justice concerns. (88 FR
25251, Apr. 26, 2023). This rule
streamlines the processing of ROWs and
their associated fees and requires
operations and maintenance plans for
powerline ROWs. These rule changes
are not expected to have an effect on
any particular population. Therefore,
this rule is not expected to negatively
impact any community and is not
expected to cause any disproportionate
and adverse impacts to communities
with environmental justice concerns.
Regulatory Flexibility Act
This rule will not have a significant
economic effect on a substantial number
of small entities under the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601 et
seq.). The RFA generally requires that
Federal agencies prepare a regulatory
flexibility analysis for rules subject to
the ‘‘notice-and-comment’’ rulemaking
requirements found in the
Administrative Procedure Act (5 U.S.C.
500 et seq.) if the rule would have a
significant economic impact, whether
detrimental or beneficial, on a
substantial number of small entities. See
5 U.S.C. 601–612. Congress enacted the
RFA to ensure that government
regulations do not unnecessarily or
disproportionately burden small
entities. Small entities include small
businesses, small governmental
jurisdictions, and small not-for-profit
enterprises.
The BLM reviewed the Small
Business Size standards for 30 affected
industries. The BLM determined that a
large share of the entities in the affected
industries—in the majority of the
industries, over 90% of the covered
entities at the national level—are small
1 59

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businesses as defined by the Small
Business Act (SBA).1 The BLM’s
analysis of this point is given in Table
3 of the Economic Analysis for this final
rule.
However, the BLM believes that the
impact on the small entities is not
significant. In the Economic Analysis,
the total cost recovery payments per
year of a small entity are compared to
its receipts. Table 11 in the Economic
Analysis gives a break-out of small
establishments by industry and size
class. The table shows the cost recovery
payments as a percentage of receipts.
Cost recovery payments of a small
business under the final rule are
estimated to be $9,000 per year,
including an incremental $3,500 cost
attributable to the rule. For most of the
size categories, cost recovery charges as
a percentage of receipts are less than
1%.
Moreover, section 2804.21 of the
BLM’s regulations currently provides
that the BLM may account for financial
hardship on a case-by-case basis when
determining cost recovery fees,
providing an avenue for relief for small
businesses if they are meaningfully
impacted by cost recovery payments.
Further, the rule will benefit small
businesses by streamlining the BLM’s
processes.
For the purpose of carrying out its
review pursuant to the RFA, we certify
that the rule will not have a ‘‘significant
economic impact on a substantial
number of small entities,’’ as that phrase
is used in 5 U.S.C. 605. A regulatory
flexibility analysis is therefore not
required.
Small Business Regulatory Enforcement
Fairness Act
This rule is not a major rule under the
Small Business Regulatory Enforcement
Fairness Act, 5 U.S.C. 804(2). This rule:
(a) Does not have an annual effect on
the economy of $100 million or more.
The rule will result in additional cost
recovery payments (or receipts to the
United States Government) paid mostly
by firms and individuals. These
payments are ‘‘transfer payments.’’
Transfer payments are monetary
payments from one group to another
that do not affect total resources
available to society.
(b) Will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, State, or
local government agencies, or
geographic regions. The BLM
determined that the relatively minor
increase in minor category fees will not
1 13 CFR 121.201 and U.S. Census Bureau 2017
Economic Analysis.

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pose an impact to small businesses. As
explained above, cost recovery
payments for a small business under the
final rule are estimated to be $9,000 per
year, including an incremental $3,500
cost attributable to the rule. Table 11 of
the Economic Analysis shows that for
most industry and size categories, cost
recovery payments as a percentage of
receipts are less than 1%. In a few
industries, for the smallest size
categories, cost recovery payments
exceed 1% of receipts. In such cases, it
is important to note that section 2804.21
of the BLM’s existing regulations
provides that the BLM may account for
financial hardship on a case-by-case
basis when determining cost recovery
fees. Further, there are aspects of the
rule that will provide operating
flexibility for small businesses, likely
allowing them to manage their
powerline and communications site
ROWs more efficiently or at reduced
cost.
(c) Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
The rule will not have adverse effects on
any of these criteria. It will encourage
the development of communications
uses in rural areas in accordance with
E.O. 13821 and the MOBILE NOW Act.

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Unfunded Mandates Reform Act
Under the Unfunded Mandates
Reform Act (UMRA) (2 U.S.C. 1531 et
seq.), agencies must prepare a written
statement about benefits and costs, prior
to issuing a final rule that may result in
aggregate expenditure by State, local,
and Tribal governments, or by the
private sector, of $100 million or more
in any one year.
This rule is not subject to the
requirements under the UMRA. The rule
does not contain a Federal mandate that
may result in expenditures of $100
million or more for State, local, or Tribal
governments, in the aggregate, or to the
private sector in any 1 year. The rule
will not significantly or uniquely affect
small governments. A statement
containing the information required by
the UMRA is not required.
Governmental Actions and Interference
With Constitutionally Protected Property
Right—Takings (E.O. 12630)
This rule does not affect a taking of
private property or otherwise have
taking implications under E.O. 12630.
Section 2(a) of E.O. 12630 (53 FR 8859,
March 15, 1988) identifies policies that
do not have takings implications, such
as those that abolish regulations,
discontinue governmental programs, or

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modify regulations in a manner that
lessens interference with the use of
private property. This rule will not
interfere with private property. A
takings implication assessment is not
required.
Federalism (E.O. 13132)
Under the criteria in section 1 of E.O.
13132 (64 FR 43255, August 4, 1999),
this rule does not have sufficient
federalism implications to warrant the
preparation of a federalism summary
impact statement. It does not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. A federalism
summary impact statement is not
required.
Civil Justice Reform (E.O. 12988)
This rule complies with the
requirements of E.O. 12988 (61 FR 4729,
February 5, 1996). Specifically, this
rule:
(a) Meets the criteria of section 3(a)
requiring that all regulations be
reviewed to eliminate errors and
ambiguity and be written to minimize
litigation; and
(b) Meets the criteria of section 3(b)(2)
requiring that all regulations be written
in clear language and contain clear legal
standards.
Consultation and Coordination With
Indian Tribal Governments (E.O. 13175,
E.O. 14112, and Departmental Policy)
The Department strives to strengthen
its government-to-government
relationship with Indian Tribes through
a commitment to consultation with
Indian Tribes and recognition of their
right to self-governance and Tribal
sovereignty.
In accordance with E.O. 13175 (65 FR
67249, November 9, 2000) and E.O.
14112 (88 FR 86021, December 11,
2023), the BLM has evaluated this
rulemaking and determined that it
would not have substantial direct effects
on federally recognized Indian tribes.
Nevertheless, on a government-togovernment basis the BLM initiated
consultation with Tribal governments
that wished to discuss the rule.
In August 2021, the BLM sent a letter
to federally recognized Indian Tribes
and Alaska Native Corporations
notifying them about the BLM’s intent
to pursue this rulemaking. In that letter,
the BLM invited the tribes to
government-to-government
consultation. On October 28, 2021, the
BLM met with Ahtna, Inc., an Alaska
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this and other BLM rulemakings. Ahtna
encouraged BLM to work with other
state land management agencies, asked
for clarification of the Tribal
consultation process during the BLM
rulemaking process, and requested a
timeline for implementation of the rule
and the new cost recovery schedule. On
December 1, 2021, the BLM met with
the Santa Rosa Rancheria Tachi-Yokut
Tribe to discuss this and other BLM
rulemakings. The Tribe asked whether
the time requirements for processing
applications in the MOBILE NOW Act
would eliminate or reduce Tribal
consultation. Neither the MOBILE NOW
Act nor this rule alters the BLM’s
responsibility to consult with Tribes.
Tribal consultation will continue
consistent with applicable law and
policy. The Tribe also requested a
timeline for when the rule would be
finalized. The rule will take effect 30
days after it is published in the Federal
Register.
Paperwork Reduction Act (44 U.S.C.
3501 et seq.)
The Paperwork Reduction Act (PRA)
generally provides that an agency may
not conduct or sponsor, and not
withstanding any other provision of law
a person is not required to respond to,
a collection of information, unless it
displays a currently valid Office of
Management and Budget (OMB) control
number. Collections of information
include any request or requirement that
persons obtain, maintain, retain, or
report information to an agency, or
disclose information to a third party or
to the public (44 U.S.C. 3502(3) and 5
CFR 1320.3(c)). This rule contains new
information collections that require
OMB approval under the PRA. The BLM
may not conduct or sponsor and,
notwithstanding any other provision of
law, you are not required to respond to
a collection of information unless it
displays a currently valid OMB control
number.
The information collection activities
associated with the application process
in this rule require the use of SF–299
(Application for Transportation, Utility
Systems, Telecommunications and
Facilities on Federal Lands and
Property) and the Communications Site
Tenant/Customer Inventory
Certification of Facility Owner or
Manager. The OMB has previously
approved the information collection
requirements associated with BLM’s use
of Common Form SF–299 as part of the
application process. You may view the
BLM’s approved Request for use of the
Common Form at http://
www.reginfo.gov/public/do/PRAMain.
Additionally, § 2884.11 refers to BLM

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forms Application for Permit to Drill or
Reenter (BLM Form 3160–3) and Sundry
Notice and Report on Wells (BLM Form
3160–5). These forms are part of the
requirements for applying for MLA
Grants or TUPs. The information
required as part of these applications is
contained in the current regulations
under this paragraph and is currently
approved by OMB under OMB control
number 1004–0137. The rule would not
change these forms, nor the associated
information collected as part of the
application requirements.
This rule includes provisions
pertaining to non-hour burdens
authorized by FLPMA and the MLA.
FLPMA is the only authority under
which communications uses on BLMmanaged lands may be authorized.
However, both FLPMA (43 U.S.C.
1734(b) and 1764(g)) and the MLA (30
U.S.C. 185(l)) authorize the BLM and
other applicable Federal agencies to
collect funds from ROW applicants or
holders to reimburse an agency for
expenses incurred while processing an
application and monitoring a grant.
When this rule becomes effective, the
BLM will include non-hour burdens for
other uses (e.g., electric generation and
pipelines) in requests to revise OMB
Control Numbers 1004–0137 (Onshore
Oil and Gas Operations and Production)
and 1004–0206 (Competitive Processes,
Terms and Conditions for Leasing of
Public Lands for Solar and Wind Energy
Development).
The information collection
requirements identified below require
approval by OMB:
(1) Appeals/Petitions for a Stay (43
CFR 2801.10 and 43 CFR 2881.10)—
Current regulations at 43 CFR 2801.10
and 43 CFR 2881.10 provide a process
for applicants to appeal a BLM decision
issued under the regulations in parts
2800 and 2880, respectively, in
accordance with part 4 of Title 43. All
BLM decisions under parts 2800 and
2880 remain in effect pending appeal
unless the Secretary of the Interior rules
otherwise, or as noted in the respective
part. The applicant may petition for a
stay of a BLM decision under part 4
with the Department’s Office of
Hearings and Appeals. Unless otherwise
noted, the BLM would take no action on
the application while the appeal is
pending. (43 CFR 2801.10(b),
2881.10(b).)
(2) Designation of Agent or Third
Party (43 CFR 2803.11)—Amendments
to § 2803.11 require notification of an
intent to designate another person or
entity to act on behalf of a holder of a
FLPMA grant (i.e., any authorization or
instrument issued under FLPMA Title
V, 43 U.S.C. 1761–1772). This is a new

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information collection activity, although
existing § 2803.11 states that another
person may act on the holder’s behalf if
the holder has ‘‘authorized the person to
do so under the laws of the State where
the ROW is or will be located.’’ These
amendments retain the existing
language and, in addition, require the
following in a designation notification:
(A) Notify the BLM office having
jurisdiction over the grant in writing of their
intention and provide a copy of the Power of
Attorney, if one exists; and
(B) Provide and maintain the current
contact information for the intended agent.

If an applicant designates an agent or
third party to act on their behalf, they
are still responsible for following the
terms and conditions of the grant. In
addition, these amendments require the
holder of the grant to maintain current
contact information for the intended
agent.
(3) Request for a Master Agreement
(43 CFR 2804.17 and 43 CFR 2884.15)—
Sections 2804.17 and 2884.15 describe
the information a holder of a FLPMA
grant, MLA grant, or TUP must provide
to the BLM when requesting a ‘‘Master
Agreement (Cost Recovery Category 5).’’
A Master Agreement, as described in
§§ 2804.17 and 2884.15, is a written
agreement covering processing and
monitoring fees negotiated between the
BLM and the holder. The term ‘‘Cost
Recovery Category 5’’ refers to
agreements involving multiple BLM
grant approvals within defined
geographic areas. As amended,
§§ 2804.17 and 2884.15 will further
define Cost Recovery Category 5 as
involving projects within defined
geographic areas ‘‘or for a specific
common activity for many projects.’’
These are the only amendments to
§§ 2804.17 and 2884.15.
Sections 2804.17 and 2884.15 require
that a request for a Master Agreement
include:
(A) A description of the geographic
area covered by the Agreement and the
scope of the activity the holder plans;
(B) A preliminary work plan that
states what work the holder must do
and what work the BLM must do to
process the application;
(C) A preliminary cost estimate and a
timetable for processing the application
and completing the projects;
(D) A statement whether the holder
wants the Agreement to apply to future
applications in the same geographic area
that are not part of the same projects;
and
(E) Any other relevant information
that the BLM needs to process the
application (e.g., financial information,
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about the area covered by the
application and/or grants).
(4) Written Agreements—Category 6
Projects (43 CFR 2804.19 and 43 CFR
2884.17)—The term ‘‘Cost Recovery
Category 6’’ refers to agreements
involving a large scale or highly
complex FLPMA grant, MLA grant, or
TUP approval. As amended, §§ 2804.14
and 2884.12 define Cost Recovery
Category 6 to include activities that will
require more than 64 hours or require an
environmental impact statement. For
Category 6 applications, the applicant
and the BLM must enter into a written
agreement that describes how the BLM
will process the application and
monitor the grant. The BLM may require
that the final agreement contains a work
plan and a financial plan, and a
description of any existing agreements
they have with other Federal agencies
for cost reimbursement associated with
the application or grant.
For the BLM to determine reasonable
costs associated with a Category 6
project, the written agreement must
include a written analysis of those
factors applicable to the project, unless
the applicant agrees in writing to waive
consideration of reasonable costs and
elects to pay actual costs. The BLM may
require the applicant to submit
additional information in support of
their position.
(5) Analysis of Factors—Cost
Recovery Fee Determination (43 CFR
2804.21)—Along with the written
application, applicants may submit their
analysis of how each of the factors, as
applicable, in § 2804.21(a) pertains to
their application. The BLM will notify
the applicant in writing of the fee
determination.
(6) Withdrawing Applications/
Relinquishing Grants (43 CFR 2804.27
and 43 CFR 2884.24)—Applicants may
withdraw their application in writing
before the BLM issues a grant. Grant
holders may request to relinquish their
grant in writing. If they withdraw their
application or relinquish their grant,
they are liable for all processing costs
the United States has incurred up to the
time of the withdrawal or
relinquishment and for the reasonable
costs of termination proceedings. Any
money not paid by the applicant is due
within 30 calendar days after receiving
a bill for the amount due. Any money
paid by the applicant that is not used to
cover costs the United States incurred as
a result of their application will be
refunded to them.
(7) Request for Alternative
Requirement (43 CFR 2804.40)—If the
applicant is unable to meet any of the
requirements in subpart 2804, they may
request approval for an alternative

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requirement from the BLM. Any such
request is not approved until the BLM
provides their approval in writing. The
request for alternative must:
(A) Show good cause for the
applicant’s inability to meet a
requirement;
(B) Suggest an alternative requirement
and explain why that requirement is
appropriate; and
(C) Be received in writing by the BLM
before the deadline of a particular
requirement has passed.
(8) Request for Extension (43 CFR
2805.12(c)(5))—Grant holders must take
appropriate remedial action within 30
days after receipt of a written
noncompliance notice unless they have
been provided an extension of time by
the BLM. Alternatively, they must show
good cause for any delays in repairs,
use, or removal; estimate when
corrective action will be completed;
provide evidence of diligent operation
of the facilities; and submit a written
request for an extension of the 30-day
deadline. If they do not comply with
this provision, the BLM may suspend or
terminate the authorization.
(9) Rights the United States Retains—
Financial Documents (43 CFR
2805.15)—The amendment to § 2805.15
adds to the list of rights retained by the
United States the right to require a
holder to submit applicable financial
documents and supporting documents
including, but not limited to,
contractual and subleasing agreements.
This amendment is consistent with the
requirements of existing
§ 2805.12(a)(15).
(10) Operating Plans or Agreements
(43 CFR 2804.25(c)(2) and 43 CFR
2805.21(a))—Paragraphs 2804.25(c)(2)
and 2805.21(a) require an operating plan
or agreement for all new powerline
ROWs. Applications to amend and
renew powerline ROWs must follow the
same procedures as applications for new
ROWs and are subject to this
requirement. Existing holders of
powerline ROWs are not required to
submit an operating plan or agreement
under the rule until they renew or
amend their grant but may submit such
plans on a voluntary basis. Holders of
ROWs may submit an operating plan or
agreement to the BLM on a voluntary
basis even if their ROW is not for a
powerline.
Under existing § 2804.25(c), the BLM
may require applicants to submit a POD
for a ROW, as necessary.
Paragraph 2805.21(c) describes
requirements of the operating plans or
agreements that powerline ROW
applicants are required to submit.
(A) Plan requirements: An operating
plan or agreement must:

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(i) Identify the applicable facilities to
be maintained;
(ii) Take into account the holder’s
own operations and maintenance plans
for the applicable ROW;
(iii) Include the vegetation
management, inspection, operation and
maintenance methods that may be used
to comply with applicable law,
including fire safety requirements and
reliability standards established by the
ERO;
(iv) Include schedules for:
(a) The applicable owner or operator
to notify the BLM about non-emergency
routine and major maintenance;
(b) The applicable owner or operator
to request approval from the BLM about
undertaking non-emergency routine and
major maintenance; and
(c) The BLM to respond to a request
by an owner or operator;
(v) Describe processes for:
(a) Identifying changes in conditions;
and
(b) Modifying the approved operating
plan or agreement, if necessary; and
(vi) Provide for the disposition of cut
trees and branches, including plans for
sale of forest products.
(11) Modification of Operating Plans
or Agreements (43 CFR 2805.21(e))—
Paragraph 2805.21(e) provides that the
BLM will notify the holder if an
operating plan or agreement requires
modifications. The BLM will provide
advance reasonable notice to the holder
that a modification is necessary, and the
holder would submit the proposed
modification to the BLM. The BLM will
review and approve the operating plan
or agreement modification in the
timeframe identified for submitting new
approvals. Under § 2805.21(e)(4), the
holder may continue to operate and
maintain the ROW or facility in
accordance with the approved operating
plan or agreement, if the activity does
not conflict with the identified
condition that requires a plan
modification.
(12) Agreements in Lieu of Operating
Plans (43 CFR 2805.21(f))—
Paragraph 2805.21(f) provides that
certain holders may enter into an
agreement with the BLM in lieu of an
operating plan. Agreements need to
include schedules, as described in
section 2805.21(c)(4) and are subject to
the same modification requirements of
section 2805.21(e).
(13) Notifications—Emergency
Conditions (43 CFR 2805.22(a))—
Owners or operators of electric
transmission or distribution lines will
notify the authorized officer not later
than 1 day after the date of their
response to emergency conditions.

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(14) Request for Approval—NonEmergency Conditions (43 CFR
2805.22(b))—Owners or operators must
request approval from the BLM for a
proposed activity if their plan:
(A) Requires them to seek specific
approval for the proposed activity; or
(B) Does not address the proposed
activity. They may also need to amend
their operating plan or agreement if they
anticipate conducting this activity on a
recurring basis.
(15) Phasing Rent—Hardship (43 CFR
2806.22 & 43 CFR 2866.31)—The BLM
uses separate rental schedules for linear
ROWs (see § 2806.22) and for
communications uses grants (see
§ 2866.30). When the BLM adjusts its
rental schedule under these sections,
some holders’ rents may increase
dramatically. The rule includes
provisions in each of these sections (see
§§ 2806.22(c) and 2866.30) to provide
holders experiencing undue hardship
with the option to phase in the cost
difference over a 3-year period. If a
holder’s rent would more than double
from the previous year, the holder may
request a phase-in of the increased rent
in accordance with § 2806.15(b)(5).
(16) Amendments (43 CFR 2807.20
and 43 CFR 2887.10)—Applicants must
amend their application or seek an
amendment of their grant when there is
a proposed substantial deviation in
location or use. The requirements to
amend an application or grant are the
same as those for a new application,
including paying cost recovery fees and
rent according to §§ 2804.14, 2805.16,
and 2806.10.
(17) Renewals (43 CFR 2807.22 and 43
CFR 2887.12)—Applicants must submit
an application to renew their existing
grant at least 120 days prior to grant
expiration.
(18) Request for Preliminary
Application Review (43 CFR 2864.10)—
In addition to the provisions listed in
§ 2804.10, before filing their application,
the applicant should:
(A) Schedule a preliminary
application review meeting with the
appropriate personnel in the BLM field
office with jurisdiction over the lands
the applicant seeks to use. During the
preliminary application review meeting,
the BLM can:
(i) Identify potential constraints;
(ii) Determine whether the lands are
located inside a communications site
management plan area;
(iii) Tentatively schedule the
processing of the proposed application;
and
(iv) Inform the applicant of financial
obligations, such as processing and
monitoring costs and rents.

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(B) Request a copy of the most recent
communications site management plan
for that site, if one is available.
(C) Ensure the applicant has all other
necessary licenses, authorizations, or
permits required for the operation of the
facility.
(19) Request for Exemption (43 CFR
2806.14 and 43 CFR 2866.14)—
Applicants for or holders of an
authorization for electric or telephone
facilities may request an exemption if
they were financed in whole or in part
by, or were eligible for financing under,
the Rural Electrification Act of 1936, as
amended (REA) (7 U.S.C. 901 et seq.) or
if their facilities are extensions of
facilities that are exempt from paying
rental. This exemption may be
requested during the application
process for a new grant, or an existing
grant holder may request an exemption
if they are now eligible after a change
in policy. The BLM issued an
Instruction Memorandum in 2016 (IM–
2016–122) after a Memorandum of
Understanding in 2014 established the
new policy. Holders do not need to have
sought financing from the Rural Utilities
Service to qualify for this exemption.
Holders will need to document the
facility’s eligibility for REA financing.
(20) Request for Waiver or Reduction
in Annual Rent (43 CFR 2806.15, 43
CFR 2866.15, and 43 CFR 2866.30)—A
holder may request a rent waiver or
reduction if paying the full rent would
cause the holder undue hardship and it
is in the public interest to waive or
reduce the rent. For example, an undue
hardship can be a financial impact on a
small business, or it could involve
situations where there is a need to
relocate the facility to comply with
public health and safety or
environmental protection laws not in
effect at the time the original grant was
issued. The holder would need to
submit information to support an undue
hardship claim. Several other sections
of the rule allow a holder to request a
waiver or reduction to their rent under
the provisions of §§ 2806.15, 2866.15,
and 2866.30.
(21) Annual Statement (43 CFR
2866.31(c))—By October 15 of each year,
communications uses grant holders
must submit to the BLM a certified
statement listing any tenants and
customers in their facility or facilities
and the category of use for each tenant
or customer as of September 30 of the
same year. The BLM may require grant
holders to submit additional
information to calculate their rent. The
BLM will determine the rent based on
the annual inventory certification
statement provided. The BLM requires
only facility owners or facility managers

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to hold a grant (unless they are an
occupant in a federally owned facility as
described in § 2866.42) and will charge
rent for grants based on the total number
of communications uses within the
right-of-way and the type of uses and
population strata the facility or site
serves. Failure to submit the annual
inventory certification (by electronic
correspondence or postmarked) by
October 15 may result in the grantee not
receiving any discounts, reductions,
exemptions, or waivers (see §§ 2866.14,
2866.15, and 2866.34), for which they
may have been entitled.
(22) Request to Authorize Facilities
Under a Single Grant (43 CFR
2866.38)—Applicants holding
authorizations for two or more facilities
on the same communications site may
submit a written request to authorize
those facilities under a single grant.
(23) Environmental Impact Statement
(43 CFR 2804.14(e), 43 CFR
2884.12(e))—In processing an
application, the BLM may determine at
any time that an Environmental Impact
Statement (EIS) is necessary to evaluate
the application. The EIS may be
prepared by the applicant, the BLM, or
by both parties.
A summary of the information
collection burdens imposed by this rule
is provided below. A detailed analysis
of each information collection as
contained in this rule is provided in the
information collection request that has
been submitted to OMB for review
under the PRA.
Title of Collection: Communications
Uses Program, Cost Recovery Fee
Schedules, and Section 512 of FLPMA
for Rights-of-Way.
43 CFR parts 2800, 2860, 2880 and
2920.
OMB Control Number: 1004–0219.
Form Numbers: SF–299 (Burden
approved by OMB in Request for
Common Form under OMB Control No.
0596–0249); BLM Forms 3160–3 and
3160–5 (Burden approved by OMB
under OMB Control No. 1004–0137).
Type of Review: New Collection.
Respondents/Affected Public:
Individuals, private sector, and State/
local/Tribal governments who seek or
hold rights-of-way on public lands.
Respondent’s Obligation: Required to
Obtain or Retain a Benefit.
Frequency of Collection: On occasion
and annually for the Annual Statement
required in 43 CFR 2866.31.
Number of Respondents: 5,554.
Annual Responses: 5,554.
Total Annual Burden Hours: 187,816.
Average Response Time: Varies from
4 to 40 hours depending on actively.
Total Annual Cost Burden (non-hour
burden): $15,790,000.

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If you want to comment on the
information-collection requirements in
this rule, please send your comments
and suggestions on this informationcollection request within 30 days of
publication of this final rule in the
Federal Register to OMB at
www.reginfo.gov. Click on the link,
‘‘Currently under Review—Open for
Public Comments.’’
National Environmental Policy Act
The BLM determined the
promulgation of this final rule is
administrative and procedural in nature
and that whatever environmental effects
it may have are too broad, speculative,
or conjectural to lend themselves to
meaningful analysis at this stage. Future
actions implementing the final rule will
be subject to NEPA, either collectively
or case by case. The BLM also
determined that the rule does not
involve any of the extraordinary
circumstances listed in 43 CFR 46.215
that would require further analysis
under NEPA. Therefore, the action is
categorically excluded from
environmental review under NEPA. 43
CFR 46.210(i). The BLM has
documented this categorical exclusion’s
applicability to this action and posted it
for public review. See DOI–BLM–WO–
3500–2022–0002–CX at
www.regulations.gov.
One commenter expressed concern
that outreach efforts associated with the
rule limited public awareness and
opportunity to comment on the rule’s
environmental impacts as part of a
NEPA process. This commenter also
disagreed with the BLM’s determination
that the rule is categorically excluded
from further documentation under
NEPA in accordance with 43 CFR
46.210(i) and requested a more detailed
environmental analysis. Another
commenter expressed concern that
inclusion of temporary access rights in
grants could establish a precedent for
future action, which could be deemed to
be an ‘‘extraordinary circumstance,’’
identified at 43 CFR 46.215(e), that
makes application of the categorical
exclusion inappropriate.
The BLM followed all requirements to
publish a proposed rule. The BLM also
prepared a communication plan, posted
content to the website and on social
media, and published a news release.
Additionally, the BLM re-opened the
comment period to allow further
comments.
Additional process under NEPA is not
required for this rule because a
categorical exclusion applies. The BLM
determined that the changes made by
this rule are administrative or
procedural in nature and that the

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environmental effects of the rule are too
speculative at this stage for meaningful
analysis. 43 CFR 46.210(i). Actions
taken to implement the procedures in
this rule will be subject to NEPA.
The BLM does not share the
commenter’s concern that granting
temporary access rights for a ROW will
establish a precedent for granting future
action. Each application submitted to
the BLM is evaluated on an individual
basis, and granting temporary access
rights for a particular ROW application
does not create a precedent for future
action on other applications.
The BLM has determined that none of
the extraordinary circumstances applies.
See Categorical Exclusion, DOI–BLM–
WO–3500–2022–0002–CX at
www.regulations.gov.
Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use (E.O. 13211)
This rule is not a significant energy
action under E.O. 13211 (66 FR 28355,
May 22, 2001). Section 4(b) of E.O.
13211 defines a ‘‘significant energy
action’’ as ‘‘any action by an agency
(normally published in the Federal
Register) that promulgates or is
expected to lead to the promulgation of
a final rule or regulation, including
notices of inquiry, advance notices of
proposed rulemaking, and notices of
proposed rulemaking: (1)(i) that is a
significant regulatory action under E.O.
12866 or any successor order, and (ii) is
likely to have a significant adverse effect
on the supply, distribution, or use of
energy; or (2) that is designated by the
Administrator of OIRA as a ‘‘significant
energy action.’’
The BLM reviewed the rule and
determined that it is not a significant
energy action as defined by E.O. 13211.
A Statement of Energy Effects is not
required.

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Authors
The principal authors of this rule are:
Stephen Fusilier, BLM Division of
Lands, Realty and Cadastral Survey;
Erica Pionke, BLM Division of Lands,
Realty and Cadastral Survey; Robert
Wilson, BLM Division of Lands, Realty
and Cadastral Survey; Delissa Minnick,
BLM Division of Lands, Realty and
Cadastral Survey; Jeff Holdren, BLM
Division of Lands, Realty and Cadastral
Survey; Jennifer Noe, BLM Division of
Regulatory Affairs; assisted by the DOI
Office of the Solicitor.

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This action by the Principal Deputy
Assistant Secretary is taken pursuant to
an existing delegation of authority.
Steven H. Feldgus,
Principal Deputy Assistant Secretary, Land
and Minerals Management.

List of Subjects
43 CFR Part 2800
Electric power, Highways and roads,
Penalties, Public lands and rights-ofway, Reporting and recordkeeping
requirements.
43 CFR Part 2860
Communications, Penalties, Public
lands and rights-of-way, Reporting and
recordkeeping requirements.
43 CFR Part 2880
Administrative practice and
procedures, Common carriers, Pipelines,
Federal lands and rights-of-way,
Reporting and recordkeeping
requirements.
43 CFR Part 2920
Penalties, Public lands, Reporting and
recordkeeping requirements.
Accordingly, for the reasons stated in
the preamble, the BLM is amending 43
CFR chapter II as set forth below:
PART 2800—RIGHTS-OF-WAY UNDER
THE FEDERAL LAND POLICY AND
MANAGEMENT ACT
1. The authority citation for part 2800
continues to read as follows:

■

Authority: 43 U.S.C. 1733, 1740, 1763, and
1764.

Subpart 2801—General information
2. Amend § 2801.2 by revising
paragraph (c) to read as follows:

■

§ 2801.2 What is the objective of the BLM’s
right-of-way program?

*

*
*
*
*
(c) Promotes the use of rights-of-way
in common wherever practical,
considering engineering and
technological compatibility, national
security, and land use plans; and
*
*
*
*
*
■ 3. Amend § 2801.5 by
■ a. In paragraph (a), removing the
acronym ‘‘RMA’’;
■ b. Revising and republishing
paragraph (b).
The revision and republication reads
as follows:
§ 2801.5 What acronyms and terms are
used in the regulations in this part?

(a) * * *
(b) Terms. As used in this part, the
term:

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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.
Ancillary means a secondary use
entirely within the scope of a primary
authorization that is for the sole purpose
of supporting the operations allowed by
that primary authorization and that the
same holder of the primary
authorization does not make available to
third parties through commercial sales.
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 changein-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.
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.
Complete application means the BLM
has verified that your application
contains all of the information required
under section 2804.12. The BLM will
notify you after it determines that your
application is complete.

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Cost recovery is a fee charged to an
applicant or holder to pay the United
States for processing and monitoring
costs that concern applications and
other documents relating to the public
lands, or that are incurred when
processing, inspecting, or monitoring
any proposed or authorized rights-ofway located on the public lands.
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-ofway 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.
Exempt from rent means that the BLM
is precluded by statute or regulation
from collecting rent.
Facility means an improvement or
structure, whether existing or planned,
that is or would be owned and
controlled by the grantee within a rightof-way.
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, 1976, under then existing statutory
authority. It does not include
authorizations issued under the Mineral
Leasing Act (30 U.S.C. 185).
Hazard tree, for purposes of
vegetation management for a powerline
facility and when used in section
2805.22 of this part, means any tree,
brush, shrub, other plant, or part
thereof, hereinafter ‘‘vegetation’’
(whether located on public lands inside
or outside the linear boundary of the
right-of-way for the powerline facility),
that has been designated, prior to
failure, by a certified or licensed arborist
or forester under the supervision of the
Bureau of Land Management or the
right-of-way holder to be:
(i) Dead; likely to die or fail before the
next routine vegetation management
cycle; or in a position that, under
geographical or atmospheric conditions,
could cause the vegetation to fall, sway,

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or grow into the powerline facility
before the next routine vegetation
management cycle; and
(ii) Likely to cause substantial damage
to the powerline facility; disrupt
powerline facility service; come within
10 feet of the powerline facility; or come
within the minimum vegetation
clearance distance as determined in
accordance with applicable reliability
and safety standards and as identified in
the right-of-way for the powerline
facility and the associated approved
operating plan or agreement.
Hazardous material means:
(i) Any substance or material defined
as hazardous, a pollutant, or a
contaminant under CERCLA at 42
U.S.C. 9601(14) and (33);
(ii) 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;
(iii) 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
(iv) 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.
Maintenance when the term is used in
relation to vegetation management for a
powerline facility means:
(i) With respect to routine
maintenance, the repair or replacement
of any component of a powerline facility
due to ordinary wear and tear, such as
repair of broken strands of conductors
and overhead ground wire; replacement
of hardware (e.g., insulator assembly)
and accessories; maintenance of
counterpoise, vibration dampers, and
grading rings; scheduled replacement of
decayed and deteriorated wood poles;
and aerial or ground patrols to perform
observations, conduct inspections,
correct problems, and document
conditions to provide for operation in
accordance with applicable reliability
and safety standards and as identified in
an approved operating plan or
agreement;
(ii) With respect to non-routine
maintenance, the realigning, upgrading,
rebuilding, or replacing an entire
powerline facility or any segment
thereof, including reconductoring, as
identified in an approved operating plan
or agreement; and
(ii) With respect to maintenance to
address emergency conditions, the
immediate repair or replacement of any
component of a powerline facility that
is necessary to prevent imminent loss,
or to redress the loss, of electric service
due to equipment failure in accordance
with applicable reliability and safety

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standards and as identified in an
approved operating plan or agreement.
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.
Maximum operating sag means the
theoretical position of a powerline
facility conductor (wire) when operating
at 100 degrees Celsius, which must be
accounted for when determining
minimum vegetation clearance distance.
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:
(i) 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:
(A) Photovoltaic (PV)—20 percent;
(B) Concentrated photovoltaic (CPV)
and concentrated solar power (CSP)—25
percent;
(C) CSP with storage capacity of 3
hours or more—30 percent; and
(D) Wind energy—35 percent;

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(ii) 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.);
(iii) 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 10year average of the 20-year U.S.
Treasury bond yield rounded to the
nearest one-tenth percent; and
(iv) Hours per year means the total
number of hours in a year, which, for
purposes of this part, means 8,760
hours.
Minimum vegetation clearance
distance (MVCD) means the calculated
distance (stated in feet or meters) that is
used to prevent flashover between
conductors and vegetation for various
altitudes and operating voltages. The
MVCD is measured from a conductor’s
maximum operating sag to vegetation on
public lands within the linear right-ofway for a powerline facility and on
public lands adjacent to either side of
the linear right-of-way for a powerline
facility for purposes of felling or
pruning hazard trees, which the right-ofway holder uses to determine whether
vegetation poses a system reliability
hazard to the powerline facility.
Monetary value of the rights and
privileges you seek means the objective
value of the right-of-way or what the
right-of-way grant is worth in financial
terms to the applicant.
Monitoring activities means those
activities the Federal Government
performs to ensure compliance with a
right-of-way grant, including
administrative actions, such as
assignments, amendments, or renewals.
(i) For Monitoring Categories 1
through 4, monitoring activities include
inspecting construction, operation,
maintenance, and termination of
permanent or temporary facilities and
protection and rehabilitation activities
up to the time the holder completes
rehabilitation of the right-of-way, and
the BLM approves it;
(ii) For Monitoring Category 5 (Master
Agreements), monitoring activities
include those actions or activities
agreed to in the Master Agreement; and
(iii) For Monitoring Category 6,
monitoring activities include those
actions or activities agreed to between
the BLM and the applicant.
Operating plan or agreement means a
plan or agreement prepared by the rightof-way holder, approved by the
authorized officer, and incorporated by
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effective, efficient, and timely
inspection, operation, maintenance, and
vegetation management of the facility or
facilities on public lands within the
linear right-of-way and on public lands
adjacent to either side of the linear
right-of-way to fell or prune hazard trees
and to construct, reconstruct, and
maintain access roads and trails, to
enhance electric reliability, promote
public safety, and avoid fire hazards.
Operations and maintenance means
activities conducted by a ROW holder to
manage facilities and vegetation within
and adjacent to the ROW boundary.
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.
(i) 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.
(ii) Unacceptable bond instruments.
The BLM will not accept a corporate
guarantee as an acceptable form of bond
instrument.
Powerline facility means one or more
electric distribution or transmission
lines authorized by a right-of-way, and
all appurtenances to those lines
supporting conductors of one or more
electric circuits of any voltage for the
transmission of electric energy,
overhead ground wires, and
communications equipment that is
owned by the right-of-way holder; that
solely supports operation and
maintenance of the electric distribution
or transmission lines; and that is not
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communications uses that serve other
purposes.
Processing activities means those
actions or activities the Federal
Government undertakes to evaluate an
application for a right-of-way grant,
including administrative actions, such
as assignments, amendments, or
renewals. It also includes preparation of
an appropriate environmental document
and compliance with other legal
requirements in evaluating an
application.
(i) For Processing Categories 1
through 4, processing activities means
preliminary application reviews,
application processing and
administrative actions related to the
right-of-way or temporary use permit;
(ii) For Processing Category 5 (Master
Agreements), processing activities
means those actions or activities agreed
to in the Master Agreement; and
(iii) For Processing Category 6,
processing activities means those
actions or activities agreed to between
the BLM and the applicant.
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:
(i) Located on the Outer Continental
Shelf; and
(ii) 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-ofway applications to facilitate the
environmentally responsible

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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.
Subleasing means allowing another
party or parties to use your facility for
the purposes specified in your
authorization, for which use you may
charge fees. The BLM may permit
subleasing under the requirements of 43
CFR 2805.14 and 2865.14.
Substantial deviation means a change
in the authorized location or use that
requires-construction or use outside the
boundaries of the right-of-way, or any
change from, or modification of, the
authorized use. The BLM may
determine that there has been a
substantial deviation in some of the
following circumstances: When a rightof-way holder adds overhead or
underground lines, pipelines,
structures, or other facilities within the
right-of-way not expressly included in
the current grant. Maintenance actions
or safety-related improvements within
an existing right-of-way, including
vegetation management, are not
considered a substantial deviation.
Activities undertaken to reasonably
prevent and suppress wildfires on or
adjacent to the right-of-way do not
constitute a substantial deviation.
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 identified
through a land use planning process 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-ofway use or facility, provided that the
uses are compatible with one another
and the corridor designation.
Vegetation management means:
(i) Emergency vegetation
management—unplanned felling and

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pruning of vegetation on public lands
within the linear right-of-way for a
powerline facility and unplanned felling
and pruning of hazard trees on abutting
public lands that have contacted or
present an imminent danger of
contacting the powerline facility to
avoid the disruption of electric service
or to eliminate an immediate fire or
safety hazard; and
(ii) Non-emergency (routine)
vegetation management—planned
actions as described in an operating
plan or agreement periodically taken to
fell or prune vegetation on public lands
within the linear right-of-way for a
powerline facility and on abutting
public lands to fell or prune hazard
trees to ensure normal powerline facility
operations and to prevent wildfire in
accordance with applicable reliability
and safety standards and as identified in
an approved operating plan or
agreement.
Waived from rent means a
discretionary decision by the BLM to
reduce the rent. Waivers may result in
a reduction in rent or no rent at all.
Zone means a geographic grouping
necessary for linear right-of-way rent
assessment purposes, covering all lands
in the contiguous United States.
§ 2801.9

[Amended]

4. Amend § 2801.9 by removing
paragraph (a)(5) and redesignating
paragraphs (a)(6) and (a)(7) as
paragraphs (a)(5) and (a)(6).

■

Subpart 2802—Lands Available for
FLPMA Grants
5. Amend § 2802.10 by revising
paragraph (c) to read as follows:

■

§ 2802.10
grants?

What lands are available for

*

*
*
*
*
(c) You should contact the BLM to:
(1) Determine the appropriate BLM
office with which to coordinate;
(2) Determine whether or not the land
you want to use is available for that use;
and
(3) Begin discussions about any
application(s) you may need to file.
Subpart 2803—Qualifications for
Holding FLPMA Grants
■

6. Revise § 2803.11 to read as follows:

§ 2803.11
behalf?

Can another person act on my

Another person may act on your
behalf if you have authorized that
person to do so under the laws of the
State where the right-of-way is or will
be located.
(a) If you intend to designate another
person or entity to act on your behalf or

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25959

operate as your third-party agent, you
must first:
(1) Notify the BLM office having
jurisdiction over your grant in writing of
your intention and provide a copy of the
Power of Attorney, if one exists; and
(2) Provide and then maintain the
current contact information for the
intended agent.
(b) If you designate an agent or thirdparty to act on your behalf after you
have been issued a grant, you are still
responsible for ensuring the terms and
conditions of the grant are followed.
■ 7. Amend § 2803.12 by revising the
section heading and paragraph (a) to
read as follows:
§ 2803.12
die?

What happens to my grant if I

(a) If a grant holder dies, any
inheritable interest in a grant will be
distributed under State law.
*
*
*
*
*
Subpart 2804—Applying for FLPMA
Grants
8. Amend § 2804.12 by revising
paragraphs (a) introductory text and
(a)(4) to read as follows:

■

§ 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 https://www.blm.gov, and fill
in the required information. The
application must include the applicant’s
original signature or meet the BLM
standards for electronic commerce. Your
complete application must include the
following:
*
*
*
*
*
(4) A map of the project showing its
proposed location and existing facilities
adjacent to the proposal, and
Geographic Information Systems (GIS)
shapefiles, or equivalent format, when
requested by the BLM;
*
*
*
*
*
■ 9. Revise § 2804.14 to read as follows:
§ 2804.14 What are the fee categories for
cost recovery?

(a) Unless your fees are waived under
§ 2804.16, you must pay cost recovery
fees for the reasonable costs associated
with your application and grant. Subject
to applicable laws and regulations, if
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. The

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fees for Categories 1 through 4 (see
paragraph (b) of this section) are onetime fees and are not refundable.
Reasonable costs are those costs defined
in Section 304(b) of FLPMA (43 U.S.C.
1734(b)). The fees are categorized based
on an estimate of the amount of time
that the Federal Government will
expend to process your application,
issue a decision granting or denying the

application, and monitor that land use
authorization.
(b) The BLM bases cost recovery fees
on categories. The BLM will update the
fee schedule for Categories 1 through 4
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 fees,
which may include preliminary
application review, processing, and

monitoring, as specified in the
applicable Master Agreement. Category
6 fees are for situations when a right-ofway activity will require more than 64
hours, or when an environmental
impact statement (EIS) is required and
may include preliminary application
review costs. The cost recovery
categories and the estimated range of
Federal work hours for each category
are:

TABLE 1 TO PARAGRAPH (b)—COST RECOVERY CATEGORIES
FLPMA right-of-way cost recovery category descriptions

Federal work hours involved

Category 1. Processing and monitoring associated with an application or existing grant ...
Category 2. Processing and monitoring associated with an application or existing grant ...
Category 3. Processing and monitoring associated with an application or existing grant ...
Category 4. Processing and monitoring associated with an application or existing grant ...
Category 5. Master Agreements * .........................................................................................
Category 6. Processing and monitoring associated with an application or existing grant,
including preliminary-application reviews *.

Estimated Federal work hours are ≤8.
Estimated Federal work hours are >8 ≤24.
Estimated Federal work hours are >24 ≤40.
Estimated Federal work hours are >40 ≤64.
Varies, depending on the agreement.
Estimated Federal work hours are >64.

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* Preliminary application review costs are those expenses related to meetings held between a Federal agency and the applicant to discuss a
right-of-way application. These reviews are required only when an application is for a wind or solar right-of-way but are encouraged for other
right-of-way application filings. A Master Agreement may include preliminary application review costs.

(c) You may obtain a copy of the
current year’s cost recovery fee schedule
at https://www.blm.gov, by contacting
your local BLM state, district, or field
office, or by writing: Attention to the
Division of Lands, Realty and Cadastral
Survey, U.S. Department of the Interior,
Director (HQ–350), Bureau of Land
Management, 1849 C Street NW, Mail
Stop 2134LM, Washington, DC 20240.
(d) After an initial review of your
application, the BLM will notify you of
the cost recovery category into which
your application fits. You must then
submit to the BLM the appropriate
payment for that category before the
BLM will begin processing your
application. Your signature on a cost
recovery Master Agreement constitutes
your agreement with the cost recovery
category decision. If you disagree with
the category that the BLM has
determined for your application, you
may appeal the decision under
§ 2801.10. For Category 5 and 6
applications or grants, see §§ 2804.17,
2804.18, and 2804.19. If you paid the
cost recovery fee and you appeal a
Category 1 through 4 or Category 6
determination, the BLM will work on
your application or grant while the
appeal is pending. If the Interior Board
of Land Appeals (IBLA) finds in your
favor, you will receive a refund or an
adjustment of your cost recovery fee.
(e) In processing your application, the
BLM may determine at any time that the
application requires preparing an EIS. If
this occurs, the BLM will send you a
decision changing your cost recovery

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category to Category 6. You may appeal
this decision under § 2801.10.
(f) To expedite processing of your
application, you may notify the BLM in
writing that you are waiving application
of the factors identified in §§ 2804.20(a)
and 2804.21 to determine reasonable
costs and are electing to pay the actual
costs incurred by the BLM in processing
your application and monitoring your
grant.
10. Amend § 2804.15 by revising the
section heading to read as follows:

■

§ 2804.15 When does the BLM reevaluate
the cost recovery fees?

*

*

*

*

*

11. Revise § 2804.16 to read as
follows:

■

§ 2804.16 When will the BLM waive cost
recovery fees?

(a) The BLM may waive your cost
recovery fees if:
(1) You are a State or local
government, or an agency of such a
government, and the BLM issues the
grant for governmental purposes
benefitting the general public. However,
if you collect revenue from charges you
levy on customers for services similar to
those of a profit-making corporation or
business, or you assess similar fees to
the United States for similar purposes,
cost recovery fees will not be waived;
(2) Your application under this
subpart is associated with a cost-share
road or reciprocal right-of-way
agreement; or

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(3) You are a Federal agency, and your
cost recovery category determination is
Category 1 to 4.
(b) The BLM will not waive your cost
recovery fees if you are in trespass.
■ 12. Amend § 2804.17 by revising the
section heading and paragraph (a) to
read as follows:
§ 2804.17 What is a Master Agreement
(Cost Recovery Category 5) and what
information must I provide to the BLM when
I request one?

(a) A Master Agreement (Cost
Recovery Category 5) is a written
agreement covering processing and
monitoring fees (see § 2804.14)
negotiated between the BLM and you
that involves multiple BLM grant
approvals and/or monitoring scenarios
for projects within defined geographic
areas or for a specific common activity
for many projects.
*
*
*
*
*
■ 13. Revise and republish § 2804.18 to
read as follows:
§ 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 the BLM will do to
complete right-of-way activities;
(3) Describes the method of periodic
billing, payment, and auditing;
(4) Describes the processes, studies, or
evaluations you will pay for;

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(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
(6) Complete final scoping and
develop final work and financial plans
that reflect any work you have agreed to
do. The BLM will also present you with
the final estimate of the reasonable costs
for which you must reimburse the BLM,
including the cost for monitoring the
project, using the factors in §§ 2804.20
and 2804.21 of this subpart.
*
*
*
*
*
■ 15. Amend § 2804.20 by revising the
section heading, introductory text, and
paragraph (a) introductory text to read
as follows:

(5) Explains how the BLM will
monitor a grant and how the BLM will
receive payment for this work;
(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;
(9) May be prepared so that it
includes previously granted rights-ofway held by the right-of-way holder;
and
(10) 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 cost recovery fees.
■ 14. Amend § 2804.19 by revising the
section heading and paragraphs (a) and
(b) to read as follows:

§ 2804.20 How does the BLM determine
reasonable costs for Category 6 right-ofway activities?

§ 2804.19 How will the BLM manage my
Category 6 project?

(a) For Category 6 applications, you
and the BLM must enter into a written
agreement that describes how the BLM
will process your application and
monitor your grant. The BLM may
require that the final agreement contain
a work plan and a financial plan, and a
description of any existing agreements
you have with other Federal agencies for
cost reimbursement associated with
your application or grant.
(b) In processing your application, the
BLM will:
(1) Determine the issues subject to
analysis under NEPA;
(2) Prepare a preliminary work plan,
if applicable;
(3) Develop a preliminary financial
plan, if applicable, which estimates the
reasonable costs of processing your
application and monitoring your
project;
(4) Collect, in advance and at the
BLM’s discretion, a deposit for your
Category 6 project to initiate processing
your application while all of the plans
and agreements are being completed;
(5) Discuss with you:
(i) The preliminary plans and data;

The 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 those factors and elect to pay actual
costs (see § 2804.14(f) of this subpart).
Submitting your analysis with the
application will expedite its handling.
The BLM may require you to submit
additional information in support of
your position. The BLM will continue to
work on your application while you are
responding to our request, as long as a
deposit has been received by the BLM
as provided in § 2804.19(a)(4).
(a) FLPMA factors. If the BLM
determines that a Category 6 cost
recovery fee is appropriate for your
project, the BLM will apply the
following factors as set forth in Section
304(b) of FLPMA, 43 U.S.C. 1734(b), to
determine the amount you owe:
*
*
*
*
*
■ 16. Amend § 2804.21 by revising the
section heading and paragraphs (a)
introductory text, (a)(2), (a)(7), and (b) to
read as follows:

25961

§ 2804.21 What other factors will the BLM
consider in determining cost recovery fees?

(a) Other factors. If you include this
information in your application, in
arriving at your cost recovery fee in any
category, the BLM will consider
whether:
*
*
*
*
*
(2) The costs of performing any or all
right-of-way activities grossly exceed
the costs of constructing the project;
*
*
*
*
*
(7) For whatever other reason, such as
public benefits or public services
provided, cost recovery 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, pertains to your application.
The BLM will notify you in writing of
the fee determination. You may appeal
this decision under § 2801.10 of this
part.
■ 17. Amend § 2804.25 by:
■ a. Revising the section heading and
paragraph (a)(1);
■ b. Redesignating paragraph (c)(2) as
(c)(3) and adding a new paragraph (c)(2);
and
■ c. Revising paragraph (d).
The revisions and addition read as
follows:
§ 2804.25 How will the BLM process my
application?

(a) * * *
(1) Identify your cost recovery fee
described at § 2804.14, unless you are
exempt from paying fees; and
*
*
*
*
*
(c) * * *
(2) For all powerline rights-of-way,
you must submit an operating plan or
agreement, unless you have an approved
plan that meets the requirements of
§ 2805.21; or
*
*
*
*
*
(d) Customer service standard. The
BLM will process your complete
application as follows:

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TABLE 1 TO PARAGRAPH (d)
Processing
category

Processing time

Conditions

1–4 ....................

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

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

As specified in the Master Agreement.

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 Master Agreement.

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TABLE 1 TO PARAGRAPH (d)—Continued

Processing
category

Processing time

Conditions

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

Over 60 calendar days ..

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

*

*
*
*
*
18. Amend § 2804.26 by adding
paragraph (a)(9) to read as follows:

■

§ 2804.26 Under what circumstances may
the BLM deny my application?

(a) * * *
(9) You do not comply with a
deficiency notice (see § 2804.25(c))
within the time specified in the notice
or with a BLM request for additional
information needed to process your
application.
*
*
*
*
*
■ 19. Revise § 2804.27 to read as
follows:

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§ 2804.27 What fees must I pay if the BLM
denies my application or if I withdraw my
application or relinquish my grant?

If the BLM denies or you withdraw
your application, or you relinquish your
grant, you owe the current fees for the
applicable cost recovery category as set
forth at § 2804.14, unless you have a
Category 5 or 6 application, in which
case, the following conditions apply:
(a) If the BLM denies your Category 5
or 6 right-of-way 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 Category
5 or 6 application in writing before the
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
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; and
(c) You may relinquish your grant in
writing. If you do so, you are liable for
all reasonable costs the United States
has incurred up to the time you
relinquish the grant and for the
reasonable costs of closing your grant.
Any cost recovery fees you have not
previously paid are due within 30
calendar days after receiving a bill for
the amount due. The BLM will refund
any cost recovery fees you paid in
Categories 5 or 6 that were not used to

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cover costs the United States incurred as
a result of your grant.
■ 20. Amend subpart 2805 by revising
the heading to read as follows:
Subpart 2805—Terms and Conditions
of Grants
21. Amend § 2805.11 by redesignating
paragraphs (b) and (c) as paragraphs (c)
and (d) and adding a new paragraph (b)
to read as follows:

■

§ 2805.11

What does a grant contain?

*

*
*
*
*
(b) Right of ingress and egress to a
right-of-way. To facilitate the use of a
right-of-way, the authorized officer must
include in the grant rights of ingress and
egress, as may be necessary for access to
and from the right-of-way. Access routes
must be identified in the grant and may
include existing roads or other
infrastructure.
*
*
*
*
*
■ 22. Amend § 2805.12 by revising the
section heading, and paragraphs (a)(4),
(a)(8)(vi), (c)(5), and (d)(3) to read as
follows:
§ 2805.12 With what terms and conditions
must I comply?

(a) * * *
(4) Do everything reasonable to
prevent and suppress wildfires on or
adjacent to the right-of-way;
*
*
*
*
*
(8) * * *
(vi) Ensure that you construct,
operate, maintain, and decommission
the facilities authorized by the right-ofway in a manner consistent with the
grant, including the approved POD, if
one was required, or any approved
operating plan or agreement;
*
*
*
*
*
(c) * * *
(5) Repair and place into service, or
remove from the site, damaged or
abandoned facilities that:
(i) Have been inoperative for any
continuous period of 3 months and
present a hazard to the public lands; or
(ii) Present a hazard to human health
or safety. 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

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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
*
*
*
*
*
(d) * * *
(3) You must repair and place into
service, or remove from the site,
damaged or abandoned facilities that:
(i) Have been inoperative for any
continuous period of 3 months and
present a hazard to the public lands; or
(ii) Present a hazard to human health
or safety; and
*
*
*
*
*
■ 23. Amend § 2805.14 by revising the
section heading and paragraphs (b), (d),
and (e) to read as follows:
§ 2805.14
provide?

What rights does a grant

*

*
*
*
*
(b) If your authorization specifically
allows for subleasing, you may allow
other parties to use your facility for the
purposes specified in your authorization
and you may charge fees for such use.
If your authorization does not
specifically allow subleasing, you may
not let anyone else use your facility and
you may not charge for its use unless
the BLM authorizes or requires it in
writing;
*
*
*
*
*
(d) Do trimming, pruning, and
removal of vegetation to maintain the
right-of-way or facility and protect
public health and safety;
(e) Use common varieties of stone and
soil which are necessarily removed
during construction of the project in
constructing the project within the
authorized right-of-way, or use
vegetation removed during maintenance
of the right-of-way, so long as any
necessary authorization to remove or
use such materials has been obtained
from the BLM pursuant to applicable
laws;
*
*
*
*
*
■ 24. Amend § 2805.15 by revising
paragraphs (a) and (e) and adding
paragraphs (f) and (g) to read as follows:

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§ 2805.15 What rights does the United
States retain?

*

*
*
*
*
(a) Access the lands and enter the
facilities described in the authorization.
The BLM will give you reasonable
notice before it enters any facility on the
right-of-way;
*
*
*
*
*
(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. After a grant
is signed by the BLM, any modification
of the terms and conditions generally
requires the BLM to issue a new or
amended grant;
(f) Terminate your authorization for
non-compliance; and
(g) Require you to provide applicable
financial documents and supporting
documents including, but not limited to,
contractual and subleasing agreements.
■ 25. Revise § 2805.16 to read as
follows:

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§ 2805.16 If I hold a grant, what cost
recovery fees must I pay?

(a) You must pay a fee to the BLM for
the reasonable costs the Federal
Government incurs in processing,
inspecting, and monitoring the
construction, operation, maintenance,
and termination of the project and
protection and rehabilitation of the
public lands that your grant covers.
Instead of paying the BLM a fee for the
reasonable costs incurred by other
Federal agencies in processing or
monitoring your grant, you may pay the
other Federal agencies directly for such
costs. The BLM will annually adjust the
Category 1 through 4 cost recovery fees
in the manner described at § 2804.14(b).
The BLM will update Category 5 cost
recovery fees as specified in the
applicable Master Agreement. Category
6 cost recovery fees are addressed at
§ 2805.17(c). The BLM categorizes the
cost recovery fees based on the
estimated number of work hours
necessary to process and monitor your
grant. Category 1 through 4 cost
recovery fees are not refundable. The
Federal work hours for each category
and their descriptions are found at
§ 2804.14(b).
(b) The BLM will update the cost
recovery fee schedule for Categories 1
through 4 each calendar year, based on
the previous year’s change in the IPD–
GDP, as measured second quarter to
second quarter and rounded to the
nearest dollar. The BLM will update
Category 5 cost recovery fees as
specified in the applicable Master
Agreement.

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(c) You may obtain a copy of the
current year’s cost recovery fee schedule
from any BLM state, district, or field
office, or by writing: Attention to the
Division of Lands, Realty and Cadastral
Survey, U.S. Department of the Interior,
Director (HQ–350), Bureau of Land
Management, 1849 C Street NW, Mail
Stop 2134LM, Washington, DC 20240.
The BLM also posts the current cost
recovery fee schedule at https://
www.blm.gov.
■ 26. Add §§ 2805.21 and 2805.22 to
read as follows:
§ 2805.21 What is an operating plan or
agreement for electric transmission and
distribution and other rights-of-way?

(a) Operating plans or agreements. An
operating plan or agreement:
(1) Is required for all new, renewed,
and amended powerline rights-of-way
(see section 2804.25(c)(2)); and
(2) May be submitted on a voluntary
basis by:
(i) Holders of powerline rights-of-way
not subject to Section (a)(1); and
(ii) Holders of rights-of-way other
than powerline rights-of-way.
(b) Electric Reliability Organization
(ERO) standards: Holders subject to
mandatory reliability standards
established by the ERO (or superseding
standards) may use those standards as
part of the operating plan or agreement.
(c) Plan requirements: An operating
plan or agreement must:
(1) Identify the applicable
transmission or distribution facilities to
be maintained;
(2) Take into account the holder’s
own operations and maintenance plans
for the applicable right-of-way;
(3) Include vegetation management,
inspection, operation and maintenance,
and fire prevention plans, including
methods to comply with applicable law,
such as fire safety requirements and
reliability standards established by the
ERO;
(4) Include schedules for:
(i) The holder to notify the BLM about
routine and major maintenance;
(ii) The holder to request approval
from the BLM to undertake routine and
major maintenance; and
(iii) The BLM to respond to a request
by a holder under paragraph (c)(4)(ii) of
this section;
(5) Describe processes for:
(i) Identifying changes in conditions;
and
(ii) Modifying the approved operating
plan or agreement, if necessary; and
(6) Provide for the disposition of cut
trees and branches, including plans for
sale of forest products.
(d) Plan approval. The BLM will, to
the extent practicable, review and

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decide whether to approve an operating
plan or agreement within 120 days.
(e) Operating plan or agreement
modifications: The BLM may notify a
holder that changed conditions warrant
a modification to the operating plan or
agreement.
(1) The BLM will provide advance
reasonable notice that the holder must
submit an operating plan or agreement
modification.
(2) The holder must submit a
proposed operating plan or agreement
modification to the BLM to address the
changed condition identified by the
BLM.
(3) The BLM will, to the extent
practicable, review and approve
modifications in the same 120-day
timeframe that applies to the initial
submission of an operating plan or
agreement.
(4) The holder may continue to
implement any element of an approved
operating plan or agreement that does
not directly and adversely affect the
condition precipitating the need for
modification.
(f) Agreements in lieu of an operating
plan: Certain holders meeting the
requirements described in paragraph (g)
of this section may enter into an
agreement with the BLM in lieu of an
operating plan.
(g) Eligibility to enter into an
agreement: Holders of a right-of-way for
an electric transmission or distribution
facility are eligible to enter into an
agreement with the BLM if they:
(1) Are not subject to the mandatory
reliability standards established by the
ERO; or
(2) Sold less than or equal to
1,000,000 megawatt hours of electric
energy for purposes other than resale
during each of the 3 calendar years prior
to submitting a request to enter into an
agreement to the BLM.
§ 2805.22 Special provisions for
vegetation management for electric
transmission and distribution rights-of-way.

(a) Emergency Conditions. If
vegetation or hazard trees have
contacted or present an imminent
danger of contacting an electric
transmission or distribution line from
within or adjacent to an electric
transmission or distribution right-ofway, the electric transmission or
distribution line holder:
(1) May prune or remove the
vegetation or hazard tree to avoid the
disruption of electric service or to
eliminate immediate fire and safety
hazards; and
(2) Shall notify the authorized officer
not later than 1 day after the date of the
response to emergency conditions.

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(b) Non-Emergency Conditions. For
non-emergency conditions, the holder of
a right-of-way for an electric
transmission or distribution facility
must conduct vegetation management
activities in accordance with the terms
and conditions of the grant,
§§ 2805.12(a)(4) and 2805.14(d), and any
approved operating plan or agreement.
(1) You must request approval from
the BLM for a proposed activity if your
plan:
(i) Requires you to seek specific
approval for the proposed activity; or
(ii) Does not address the proposed
activity. You may also need to amend
your operating plan or agreement if you
anticipate conducting this activity on a
recurring basis.
(2) If the BLM does not timely
respond to your request according to the
schedule set forth in the approved
operating plan or agreement, if your
request pertains to vegetation
management activities, including the
removal of hazard trees or other wildfire
risk reduction activities, and if the
proposed action does not conflict with
your approved operating plan or
agreement, you may proceed with the
proposed activity.
(c) Wildfire prevention. You must do
everything reasonable to prevent and
suppress wildfires on or adjacent to the
right-of-way. Reasonable actions
include:
(1) Pruning or removal of vegetation
or hazard trees to prevent fire ignition
from electric transmission and
distribution facilities during emergency
conditions or cyclic maintenance; and
(2) Cooperating with the BLM in its
efforts to investigate, suppress, and
respond to fires within and near the
right-of-way.
Subpart 2806—Annual Rents and
Payments
27. Amend § 2806.13 by revising
paragraph (e) and adding paragraph (h)
to read as follows:

■

§ 2806.13 What happens if I do not pay
rents and fees or if I pay the rents or fees
late?

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*

*
*
*
*
(e) Subject to applicable laws and
regulations, the BLM will retroactively
bill for uncollected or under-collected
rent, fees, and late payments.
*
*
*
*
*
(h) You must pay rent even if you
have not been sent or received a
courtesy bill.
■ 28. Amend § 2806.14 by revising
paragraph (a)(4) to read as follows.

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§ 2806.14 Under what circumstances am I
exempt from paying rent?

§ 2806.20 What is the rent for a linear
right-of-way grant?

(a) * * *
(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. The BLM may require you to
document the facility’s eligibility for
REA financing.
*
*
*
*
*
■ 29. Amend § 2806.15 by revising and
republishing paragraph (b) and
removing paragraph (c) to read as
follows:

*

*
*
*
*
(c) You may obtain a copy of the
current Per Acre Rent Schedule at
https://www.blm.gov, from any BLM
state, district, or field office, or by
writing: Attention to the Division of
Lands, Realty and Cadastral Survey,
U.S. Department of the Interior, Bureau
of Land Management, 1849 C Street NW,
Mail Stop 2134LM, Washington, DC
20240.
§§ 2806.30 through 2806.44

[Removed]

31. Remove the undesignated heading
‘‘Communication Site Rights-of-Way’’
and

■

§§ 2806.30 through 2806.44.

32. Amend § 2806.52 by adding a
paragraph heading to paragraph (a)(3),
and revising paragraphs (a)(6) and (b)(2)
to read as follows:

■

§ 2806.15 Under what circumstances may
BLM waive or reduce my rent?

*

*
*
*
*
(b) A BLM State Director may, on a
case-by-case basis, evaluate and approve
any requests for waiver or reduction in
the annual rent for grants if you show
the 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) Your grant describes your
intended use of new and existing routes
to access your right-of-way (see
§ 2805.11(b)). This paragraph does not
apply to oil and gas leases issued under
part 3100 of this chapter;
(4) Your grant involves a cost share
road or a reciprocal right-of-way
agreement not subject to subpart 2812 of
this chapter. In these cases, the BLM
will determine the rent based on the
proportion of use; or
(5) 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. The 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.
■ 30. Amend § 2806.20 by revising
paragraph (c) to read as follows:

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§ 2806.52 Rents and fees for solar energy
development grants.

*

*
*
*
*
(a) * * *
(3) Basis of assignment. * * *
*
*
*
*
*
(6) Copies. You may obtain a copy of
the current per acre zone rates for solar
energy development (solar energy
acreage rent schedule) at https://
www.blm.gov, from your local BLM
state, district, or field office, or by
writing: Attention to the National
Renewable Energy Coordination Office,
U.S. Department of the Interior, Bureau
of Land Management, 1849 C Street NW,
Mail Stop 2134LM, Washington, DC
20240.
(b) * * *
(2) MW rate schedule. You may obtain
a copy of the current MW rate schedule
for solar energy development at https://
www.blm.gov, from your local BLM
state, district, or field office, or by
writing: Attention to the National
Renewable Energy Coordination Office,
U.S. Department of the Interior, Bureau
of Land Management, 1849 C Street NW,
Mail Stop 2134LM, Washington, DC
20240.
*
*
*
*
*
Subpart 2807—Grant Administration
and Operation

33. Amend § 2807.12 by redesignating
paragraph (g) as paragraph (h) and
adding a new paragraph (g) to read as
follows:

■

§ 2807.12
liable?

*

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(g) The BLM will not impose strict
liability for damages or injuries
resulting from:
(1) The BLM unreasonably
withholding or delaying approval of an
operating plan or agreement submitted
under § 2805.21; or
(2) The BLM failing to adhere to an
applicable schedule in an approved
plan (see § 2805.21(d)).
*
*
*
*
*
■ 34. Amend § 2807.17 by revising
paragraph (b) to read as follows:
§ 2807.17 Under what conditions may the
BLM suspend or terminate my grant?

*

*
*
*
*
(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 relinquish the grant;
(3) A court terminates it or requires
the BLM to terminate it; or
(4) It is required by law to terminate.
*
*
*
*
*
■ 35. Amend § 2807.20 by revising
paragraphs (b) and (d) to read as
follows:
§ 2807.20 When must I amend my
application, seek an amendment of my
grant, or obtain a new grant?

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*

*
*
*
*
(b) The requirements to amend an
application or grant are the same as
those for a new application, including
paying cost recovery fees and rent
according to §§ 2804.14, 2805.16, and
2806.10.
*
*
*
*
*
(d) Grants issued prior to October 21,
1976:
(1) If 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. The BLM may keep the old
grant in effect for the portion of the
right-of-way not amended and issue a
new grant for the new use or location,
or terms and conditions.
(2) If you wish to renew your grant,
you must apply for a new grant.
(3) If the BLM has terminated your
grant due to non-compliance with the
terms and conditions of your grant, you
must apply for a new grant.
(4) If the BLM approves your
application for an amendment, the 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. The BLM may include the same
terms and conditions in the new grant
as were in the original grant as to annual

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rent, duration, and nature of interest if
the BLM determines, based on current
land use plans and other management
decisions, that it is in the public interest
to do so.
*
*
*
*
*
■ 36. Amend § 2807.22 by revising
paragraph (f) and adding paragraph (h)
to read as follows:
§ 2807.22

How do I renew my grant?

*

*
*
*
*
(f) If you make a timely and sufficient
application for a renewal of your
existing grant, in accordance with this
section, and you are in conformance
with applicable laws, regulations, and
terms and conditions in your grant, the
existing grant does not expire until the
BLM has issued a decision to approve
or deny the renewal application. Within
60 days of receiving an application for
a renewal, the BLM will notify you in
writing of its determination regarding
the timeliness and sufficiency of your
application. If the BLM determines that
your application is timely and
sufficient, the BLM’s written notice will
confirm that until the BLM issues a
decision on your renewal application,
your existing grant will remain valid,
provided that you remain in compliance
with applicable laws, regulations, and
terms and conditions.
*
*
*
*
*
(h) If you do not submit your
application under paragraphs (a) or (b)
of this section at least 120 days prior to
grant expiration, it is considered
delinquent; the BLM will not be subject
to the customer service standards in this
section; and it will be processed only as
the BLM has time and resources
available.
Subpart 2808—Trespass
37. Amend § 2808.10 by revising
paragraph (a) to read as follows:

■

§ 2808.10

What is a trespass?

(a) Trespass is using, occupying,
developing, or subleasing 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.
*
*
*
*
*
■ 38. Add part 2860 to read as follows:
PART 2860—COMMUNICATIONS USES
Sec.
Subpart 2861—General Information
2861.1 What requirements of part 2800
apply to my grant?
2861.2 What is the objective of the BLM’s
Communications Uses program?

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2861.5 What acronyms and terms are used
in the regulations in this part?
2861.8 Severability.
2861.9 When do I need a grant?
Subpart 2862—Lands Available for Grants
2862.11 How does the BLM designate
communications sites and establish
communications site management plans?
Subpart 2864—Applying for Grants
2864.10 What should I do before I file my
application?
2864.12 What must I do when submitting
my application?
2864.24 Do I always have to use Standard
Form 299 when submitting my
application for a Communications Uses
authorization?
2864.25 How will the BLM process my
Communications Uses application?
2864.26 Under what circumstances may the
BLM deny my application?
2864.35 How will the BLM prioritize my
Communications Uses application?
Subpart 2865—Terms and Conditions of
Grants
2865.14 What rights does a grant provide?
Subpart 2866—Annual Rents and Payments
General Provisions
2866.14 Under what circumstances am I
exempt from paying rent?
2866.15 Under what circumstances may the
BLM waive or reduce my rent?
Communications Uses Rental
2866.23 How will the BLM calculate my
rent for linear rights-of-way for
Communications Uses?
2866.30 What are the rents for
Communications Uses?
2866.31 How will the BLM calculate rent
for Communications Uses in the
schedule?
2866.32 How does the BLM determine the
population strata served for your facility?
2866.33 How will the BLM calculate the
rent for a single use communication
facility grant?
2866.34 How will the BLM calculate the
rent for a multiple-use communication
facility grant?
2866.35 How will the BLM calculate rent
for private mobile radio service (PMRS),
internal microwave, and ‘‘other’’
category uses?
2866.36 If I am a tenant or customer in a
facility, must I have my own grant and
if so, how will this affect my rent?
2866.37 How will the BLM calculate rent
for a grant involving an entity with a
single use (holder or tenant) having
equipment or occupying space in
multiple BLM-authorized facilities to
support that single use?
2866.38 Can I combine multiple grants for
facilities located at one site into a single
grant?
2866.39 How will the BLM calculate rent
for a grant for a facility manager’s use?
2866.40 How will the BLM calculate rent
for an authorization for ancillary
Communications Uses associated with
Communications Uses on the rent
schedule?

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2866.41 How will the BLM calculate rent
for communications facilities ancillary to
a linear grant or other use authorization?
2866.42 How will the BLM calculate rent
for Communications Uses within a
federally owned communications
facility?
2866.43 How does the BLM calculate rent
for passive reflectors and local exchange
networks?
2866.44 How will the BLM calculate rent
for a facility owner’s or facility
manager’s grant which authorizes
Communications Uses?
Subpart 2868—Communications Uses
Trespass
2868.10 What is a Communications Uses
trespass?
Authority: 43 U.S.C. 1733, 1740, 1763 and
1764.

Subpart 2861—General Information
§ 2861.1 What requirements of part 2800
apply to my grant?

Grants issued under this part must
comply with the requirements of part
2800, except as otherwise described in
this part.

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§ 2861.2 What is the objective of the BLM’s
Communications Uses program?

It is the BLM’s objective to authorize
and administer communications uses
under Title V of the Federal Land Policy
and Management Act of 1976 and the
regulations in this part to qualified
individuals or business or governmental
entities and to direct and control
communications uses 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 governmental entity;
(b) Facilitates the orderly
development of communications uses
on BLM-administered lands and
provides for a safe and high-quality
communications environment for the
public;
(c) Prevents unnecessary or undue
degradation to public lands;
(d) Collects fair market value for
communications uses that occupy BLMadministered lands through the
collection of annual rental fees;
(e) Promotes the expansion of
communications uses in rural America
and use of rights-of-way in common
wherever practical, considering
engineering and technological
compatibility, national security, and
land use plans; and
(f) Coordinates, to the fullest extent
possible, all BLM actions under the
regulations in this part with State and
local governments, Tribes, interested
individuals, and appropriate quasipublic entities.

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§ 2861.5 What acronyms and terms are
used in the regulations in this part?

In addition to the acronyms and terms
listed in this section, the acronyms and
terms listed in part 2800 of this chapter
apply to this part. As used in this part:
RMA means the Ranally Metro Area
Population Ranking as published in the
most recent edition of the Rand McNally
Commercial Atlas and Marketing Guide.
Annual inventory certification means
a report that the holder of a grant
submits to the BLM each year to report
the uses within or on their facilities (see
§ 2866.31(c)).
Base rent means the dollar amount
required from an authorization holder
on BLM managed lands based on the
communications uses with the highest
value in the associated facility or
facilities, as calculated according to the
communications uses 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.
Communications facility has the same
meaning as facility under § 2801.5(b) of
this chapter. Communications site
means an area of public land designated
for wireless communications uses that
may be limited to a single
communications facility, but most often
encompasses more than one, and is
identified by name, usually featuring a
local prominent landmark.
Communications site management
plans means implementation-level
plans that provide direction to the users
for the day-to-day operations of the
communications site. Communications
uses means any uses associated with the
transmission of data, voice, or video, or
any other transmission or reception uses
authorized by 43 U.S.C. 1761(a)(5).
Communications uses may occur in or
on a communications facility or a linear
facility, such as a telephone line or fiber
optic cable line.
Communications uses rent schedule is
a schedule of rents for the following
types of communications uses,
including related technologies, located
in a facility associated with a particular
grant. 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

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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 § 2866.30 for calculating
rent for communications facilities and
uses located on public land:
(i) 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;
(ii) 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;
(iii) Cable television means a use that
transmits video programming to
multiple subscribers in a community
over a wired or wireless network. This
category 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;
(iv) 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;
(v) Commercial mobile radio service
(CMRS) means commercial mobile radio
uses that provide mobile
communication service to individual
customers. Examples of CMRS include:
Community repeaters, trunked radio
(specialized mobile radio), two-way
radio voice dispatch, public switched
network (telephone/data) interconnect
service, microwave communications
link equipment, and other two-way
voice and paging services;
(vi) Facility managers are grant
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

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equipment in the facility for their own
uses;
(vii) Cellular telephone means a
system of mobile or fixed
communication devices that uses a
combination of radio and telephone
switching technology and provides
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 include: Personal
Communication Service, Enhanced
Specialized Mobile Radio, Improved
Mobile Telephone Service, Air-toGround, Offshore Radio Telephone
Service, Cell Site Extenders, and Local
Multipoint Distribution Service;
(viii) 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
include: Private local radio dispatch,
private paging services, and ancillary
microwave communications equipment
for controlling mobile facilities;
(ix) Microwave means
communications uses that:
(A) Provide long-line intrastate and
interstate public telephone, television,
and data transmissions; or
(B) Support the primary business of
pipeline and power companies,
railroads, land resource management
companies, or wireless internet service
provider (ISP) companies;
(x) Internet service provider (ISP)
refers to a holder who utilizes wireless
technology to connect subscribers to the
internet;
(xi) Passive reflector means various
types of non-powered 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-topoint line-of-sight with the connecting
relay stations, but does not require
electric power;
(xii) Local exchange network means
radio service that provides basic
telephone service, primarily to rural
communities; and
(xiii) Other communications uses
means private communications uses,
such as amateur radio, personal/private
receive-only antennas, natural resource
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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. The BLM
considers persons or entities benefitting
from private or internal
communications 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) of this chapter
and 2866.42. 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 communications
uses’’ (see paragraph (xiii) of the
definition of communications uses rent
schedule in this section).
Duly filed application means an
application which includes all the
elements required by § 2864.25.
Facility means an improvement or
structure, whether existing or planned,
that is or would be owned and
controlled by the authorization holder.
For purposes of communications site
rights-of-way, facility means the
building, tower, cabinet, and related
incidental structures or improvements
authorized under the terms of the
authorization.
Facility manager means a person or
entity that leases space in a facility to
communications users and:
(i) Holds a communication use grant;
(ii) Owns a communications facility
on lands covered by that grant; and
(iii) 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 communications users
and:
(i) Holds a communications uses
grant;
(ii) Owns a communications facility
on lands covered by that grant; and
(iii) Owns and operates their own
communications equipment in the
facility for personal, Federal, or
commercial purposes.
Grant means an authorization or
instrument (e.g., lease) the 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 the BLM and its

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predecessors issued for like purposes
before October 21, 1976, under then
existing statutory authority.
Occupant means an entity who uses
any portion of a facility owned by a
grant holder.
Site means an area, such as a
mountaintop, where a holder locates
one or more communication or other
right-of-way facilities.
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
the BLM charges, a tenant’s use does not
include:
(i) Private mobile radio or internal
microwave use that is not being sold; or
(ii) A use in the category of ‘‘Other
Communications Uses’’ (see paragraph
(xiii) of the definition of
Communications uses rent schedule in
this section).
§ 2861.8

Severability.

If a court holds any provisions of the
rules in this part or their applicability
to any person or circumstances invalid,
the remainder of these rules and their
applicability to other people or
circumstances will not be affected.
§ 2861.9

When do I need a grant?

You must have an authorization
under this part to use public lands for
communications uses systems or
facilities over, under, on, or through
public lands. These include, but are not
limited to systems for transmitting or
receiving electronic signals and other
means of communication by:
(a) Installing a facility that is not
under a current valid authorization; or
(b) Installing a linear communications
facility, such as fiber optic cable.
Subpart 2862—Lands Available for
Grants
§ 2862.11 How does the BLM designate
communications sites and establish
communications site management plans?

(a) The BLM may determine the
location and boundaries of
communications sites. When
establishing a communications site, the
BLM coordinates with other Federal
agencies, State, local, and Tribal
governments, and the public to identify
resource-related issues, concerns, and
needs.
(b) When determining which lands
may be suitable for communications
sites, the BLM will consider all factors
described in § 2802.11(b). Additional

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factors the BLM will consider include,
but are not limited to, access to the site,
existing infrastructure, signal coverage,
available space, and industry demand.
(c) The BLM may establish a
communications site management plan
to guide the development of
communications uses at the site. The
plans describe the types of
communications uses that are permitted
to operate at a communications site.
Subpart 2864—Applying for Grants
§ 2864.10 What should I do before I file my
application?

In addition to the suggested actions
listed in § 2804.10, before you file your
application you should:
(a) Schedule a preliminary
application review meeting with the
appropriate personnel in the BLM field
office having jurisdiction over the lands
you seek to use. Preliminary application
review meetings help you to plan your
project, coordinate with the BLM, and
ensure a smooth permitting process.
During the preliminary application
review meeting, the BLM can:
(1) Identify potential constraints;
(2) Determine whether the lands are
located inside a communications site
management plan 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) Request a copy of the most recent
communications site management plan
for that site if one is available.
(c) Ensure you have all other
necessary licenses, authorizations, or
permits required for the operation of
your facility.

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§ 2864.12 What must I do when submitting
my application?

(a) You must file your application on
a hard copy of Standard Form 299,
available from any BLM office or
electronically at http://www.blm.gov,
and fill in the required information as
completely as possible. The application
must include the applicant’s original
signature or meet the BLM standards for
electronic commerce. Your complete
application must include the following:
(1) All necessary information under
§ 2804.12 of this chapter;
(2) Federal Communications
Commission (FCC) call sign, or license,
for all licensed uses;
(3) Geographic Information Systems
(GIS) shapefiles, or equivalent format;
(4) Draft engineering/construction
drawings of your proposed facility;
(5) Technical data related to your
project; and

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(6) Draft communications use plan of
development.
(b) The BLM may at any time during
the application process request
additional information relevant to the
permitting of your proposal. You must
submit this information before the BLM
will continue processing your
application.
§ 2864.24 Do I always have to use
Standard Form 299 when submitting my
application for a Communications Uses
authorization?

You must file an application for
communications uses using Standard
Form 299.
§ 2864.25 How will the BLM process my
Communications Uses application?

The BLM will process your
communications uses application in
accordance with the provisions in
§ 2804.25. The BLM will notify you in
writing with an offer of an authorization
or a denial of your application within
270 days of receiving a duly filed
application.
§ 2864.26 Under what circumstances may
the BLM deny my application?

In addition to the considerations
listed in § 2804.26, the BLM may deny
your application under this part if:
(a) The proposed use would interfere
with previously authorized uses of
public lands, including rights-of-way for
communications uses;
(b) The proposed use presents a
public health or safety issue; or
(c) The proposed use is not in
conformance with the applicable
resource management plan or
communications site management plan.
§ 2864.35 How will the BLM prioritize my
Communications Uses application?

The BLM will prioritize your
application in a manner that assists in
meeting the needs of underserved, rural,
and Tribal communities and first
responders to strengthen
telecommunications infrastructure
throughout the United States.
Subpart 2865—Terms and Conditions
of Grants
§ 2865.14
provide?

What rights does a grant

In addition to the rights listed in
§ 2805.14 of this chapter, the
authorization provides to you the right
to:
(a) Use the described lands to
construct, operate, maintain, and
terminate authorized facilities within
the right-of-way for authorized purposes
under the terms and conditions of your
authorization;

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(b) If your authorization specifically
allows for subleasing, allow other
parties to use your facility for the
purposes specified in your authorization
and charge fees for such use. If your
authorization does not specifically
authorize subleasing, you may not let
anyone else use your facility and you
may not charge for its use unless the
BLM authorizes or requires it in writing;
(c) Allow others to utilize the lands or
facilities if the authorization specifies;
and
(d) Hold the grant for a term of 30
years, unless the BLM determines a
shorter term is appropriate.
Subpart 2866—Annual Rents and
Payments
General Provisions
§ 2866.14 Under what circumstances am I
exempt from paying rent?

(a) You are exempt from rent under
this part if:
(1) You are a Federal, State, or local
governmental entity (except as provided
by paragraph (b) of this section);
(2) You have been granted an
exemption under a statute providing for
such; or
(3) Your facilities were financed in
whole or in part, or are 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. However,
when a holder who is exempt from rent
under REA adds non-eligible tenant
uses on the authorization, the holder
will become subject to rent in
accordance with §§ 2866.30 through
2866.44.
(b) Exceptions:
(1) The exemptions in this section do
not apply if you are in trespass.
(2) If you are a governmental entity,
you are not exempt from rent when:
(i) The facility, system, space, or any
part of the authorization is being used
for commercial purposes;
(ii) You are a municipal utility or
cooperative whose principal source of
revenue is customer charges; or
(iii) You charge the United States rent
for occupancy within or on your facility
beyond standard operation and
maintenance fees.
§ 2866.15 Under what circumstances may
the BLM waive or reduce my rent?

(a) The BLM may waive or reduce
your rent if you are licensed by the FCC
as noncommercial and educational.
(b) The BLM may evaluate and
approve, in writing, any requests for
waiver or reduction in the annual rent
for authorizations granted to:
(1) An amateur radio club (such as
Civil Air Patrol) which provides a

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benefit to the general public or to the
programs of the Secretary of the Interior;
(2) A nonprofit organization; or
(3) Holders that demonstrate that their
rates will cause undue hardship and
that it is in the public interest to waive
or reduce the rent (see § 2806.15(b)(5)).
(c) The BLM will not waive or reduce
your rent when:
(1) Your organization exists and
operates for the principal benefit of its
members;
(2) The facility, system, space, or any
part of the right-of-way area is being
used for commercial purposes;
(3) You charge the United States to
occupy your facility; or
(4) You charge rent to your occupant
or occupants, beyond standard
operation and maintenance fees, when
those occupants’ use or uses are
exempted or waived from rent by the
BLM.
(d) The BLM will revoke your existing
waiver or reduction of rent if the BLM
determines that you no longer meet the
criteria above for a waiver or reduction.
§ 2866.23 How will the BLM calculate my
rent for linear rights-of-way for
Communications Uses?

The BLM will calculate your rent for
linear rights-of-way for communications
uses, such as telephone lines and fiber
optic cable, as provided in § 2806.23.

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§ 2866.30 What are the rents for
Communications Uses?

(a) Rent schedule. You may obtain a
copy of the current schedule from any
BLM state, district, or field office, or by
writing: Attention to the Division of
Lands, Realty and Cadastral Survey,
U.S. Department of the Interior, Bureau
of Land Management, 1849 C St. NW,
Mail Stop 2134LM, Washington, DC
20240. The BLM also posts the current
communications use rent schedule at
http://www.blm.gov.
(1) The BLM uses a rent schedule to
calculate the rent for communications
uses. The schedule is based on
population strata (the population
served), as depicted in the most recent
version of the Ranally Metro Area
(RMA) Population Ranking, and the
type of communications use or uses for
which the BLM normally grants
communication site rights-of-way.
These uses are listed as part of the
definition of ‘‘communications uses rent
schedule,’’ set out at § 2861.5.
(2) The BLM will update the schedule
annually based on 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.

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(3) The BLM will limit the annual
adjustment based on the Consumer
Price Index to no more than 5 percent.
The BLM will review the rent schedule
to ensure that the schedule reflects fair
market value.
(b) Uses not covered by the schedule.
The communications uses rent schedule
does not apply to:
(1) Communications uses located
entirely within the boundaries of an oil
and gas lease, and solely supporting the
operations of the oil and gas lease (see
parts 3160 through 3190 of this
Chapter);
(2) Communications facilities and
uses ancillary to a linear authorization
that are entirely within the scope of an
authorized linear right-of-way, such as a
railroad authorization or an oil and gas
pipeline authorization, that solely
support the operations authorized by
that right-of-way and that are owned
and operated by the authorization
holder for that right-of-way;
(3) Linear communications uses not
listed on the schedule, such as
telephone lines, fiber optic cables, and
new technologies;
(4) Grants for which the BLM
determines the rent by competitive
bidding; or
(5) Communication facilities and uses
for which a BLM State Director concurs
that:
(i) The expected annual rent, that the
BLM estimates from market data,
exceeds the rent from the rent schedule
by at least five times; or
(ii) The communication site serves a
population of one million or more and
the expected annual rent for the
communications use or uses is more
than $10,000 above the rent from the
rent schedule.
§ 2866.31 How will the BLM calculate rent
for Communications Uses in the schedule?

(a) Basic rule. The BLM calculates
rents for:
(1) Single-use facilities by applying
the rent from the communications uses
rent schedule (see § 2866.30) 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 the base rent 25 percent of the
rent from the rent schedule for all tenant
uses in the facility or facilities that are
not already being 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 §§ 2866.32
and 2866.34).
(b) Exclusions. When calculating rent,
the BLM will exclude customer uses,

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except as provided for at
§§ 2866.34(b)(4) and 2866.42. The BLM
will also exclude those uses exempted
from rent by § 2866.14 of this subpart,
and any uses for which rent has been
waived or reduced to zero as described
in § 2866.15.
(c) Annual statement. By October 15
of each year, you, as a grant holder,
must submit to the 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. The BLM may require you to
submit additional information to
calculate your rent. The BLM will
determine the rent based on the annual
inventory certification statement
provided. The BLM requires only
facility owners or facility managers to
hold a grant (unless you are an occupant
in a federally owned facility as
described in § 2866.42) and will charge
you rent for your grant based on the
total number of communications uses
within the right-of-way and the type of
uses and population strata the facility or
site serves. If you fail to submit your
annual inventory certification by
October 15 (by electronic
correspondence or postmarked), you
may not receive any discounts,
reductions, exemptions, or waivers (see
§§ 2866.14, 2866.15, and 2866.34), to
which you may have been entitled.
§ 2866.32 How does the BLM determine
the population strata served for your
facility?

(a) The BLM determines the
population strata served as follows:
(1) If the site or facility is within a
designated RMA, the 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, the 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,
the 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, the 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; or
(5) If the site or facility is outside an
RMA, and it serves a community of less
than 25,000, the BLM will use the
lowest population strata shown on the
rent schedule.
(b)(1) The BLM considers all facilities
(and all uses within the same facility)

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located at one site to serve the same
RMA or community. However, at its
discretion, the BLM may make case-bycase 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. For example, when a site has a
mix of high-power and low-power uses
that are authorized by separate grants,
and only the high-power uses are
capable of serving an RMA or
community with the greatest
population, the 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 the rent as
described in § 2866.30.
(2) For purposes of rent calculation,
all uses within the same facility and/or
authorized under the same grant must
serve the same population strata.
(3) For purposes of rent calculation,
the BLM will not modify the population
rankings published in the Rand McNally
Commercial Atlas and Marketing Guide
or the population of the community
served.
§ 2866.33 How will the BLM calculate the
rent for a single use communication facility
grant?

The BLM calculates the rent for a
grant authorizing a single-use
communication facility from the
communications uses rent schedule (see
§ 2866.30 of this subpart), based on your
authorized single use and the
population strata it serves (see § 2866.32
of this subpart).

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§ 2866.34 How will the BLM calculate the
rent for a multiple-use communication
facility grant?

(a) Basic rule. The BLM first
determines the population strata the
communication facility serves according
to § 2866.32 of this subpart and then
calculates the rent assessed to facility
owners and facility managers for a grant
for a communication facility that
authorizes subleasing with tenants,
customers, or both, as follows:
(1) The 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 § 2866.30) 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, the BLM will consider the
owner’s or manager’s use like any tenant
or customer use in calculating the rent
(see § 2866.35(b) for facility owners and
§ 2866.39(a) for facility managers);
(3) If a tenant use is the highest value
use, the BLM will exclude the rent for

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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, such
as a TV and a FM radio station, the 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
the 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 rents for communications
uses exempted from rent under
§ 2866.14 of this subpart or
communications uses whose rent has
been waived or reduced to zero under
§ 2866.15 of this subpart:
(1) The BLM will exclude exempted
uses or uses whose rent has been
waived or reduced to zero (see
§§ 2866.14 and 2866.15) of either a
facility owner or a facility manager in
calculating rents. The BLM will exclude
similar uses (see §§ 2866.14 and
2866.15) of a customer or tenant if they
choose to hold their own grant (see
§ 2866.36) or are occupants in a Federal
facility (see § 2866.42(a));
(2) The 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
§§ 2866.14 and 2866.15), 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) The BLM will not charge rent to
a facility owner, facility manager, or
tenant (when holding a grant) when all
of the following occur:
(i) The BLM exempts from rent,
waives, or reduces to zero the rent for
the holder’s use (see §§ 2866.14 and
2866.15);
(ii) Rent from all other uses in the
facility is exempted, waived, or reduced
to zero, or the BLM considers such uses
as customer uses; and
(iii) The holder is not operating the
facility for commercial purposes (see
§ 2866.15(c)(2)) 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
§§ 2866.14 and 2866.15), the BLM will
charge rent, notwithstanding
§ 2866.31(b), based on the highest value
use within the facility. This paragraph

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(b)(4) does not apply to facilities exempt
from rent under § 2866.14(a)(3) except
when the facility also includes
ineligible facilities.
§ 2866.35 How will the 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, the 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, the BLM will
follow the provisions in § 2866.31 to
calculate rent for a grant involving these
uses. However, the BLM includes 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.
The BLM excludes these uses in the 25
percent calculation (see § 2866.31(a))
when their value does not exceed the
highest value in the facility.
§ 2866.36 If I am a tenant or customer in
a facility, must I have my own grant and if
so, how will this affect my rent?

(a) You may have your own
authorization, but the BLM does not
require a separate grant for tenants and
customers using a facility authorized by
a BLM grant that contains a subleasing
provision. The 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) 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 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.
(c) The BLM will charge tenants and
customers who hold their own grant in
a facility, as grant holders, the full
annual rent for their use based on the
BLM communications use rent
schedule. The BLM will also include
such tenant or customer use in
calculating the rent the facility owner or
facility manager must pay.

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§ 2866.37 How will the BLM calculate rent
for a grant involving an entity with a single
use (holder or tenant) having equipment or
occupying space in multiple BLMauthorized facilities to support that single
use?

The BLM will include the single use
in calculating rent for each grant
authorizing that use. For example, a
television station locates its antenna on
a tower authorized by grant ‘‘A’’ and
locates its related broadcast equipment
in a building authorized by grant ‘‘B.’’
The statement listing tenants and
customers for each facility (see
§ 2866.31(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.
§ 2866.38 Can I combine multiple grants
for facilities located at one site into a single
grant?

If you hold grants for two or more
facilities on the same communications
site, you may submit an SF–299
application and be subject to cost
recovery for the BLM to authorize those
facilities under a single grant. The
highest value use in all the combined
facilities determines the base rent. The
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
the BLM previously calculated as base
rents when the BLM authorized each of
the facilities on an individual basis.

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§ 2866.39 How will the BLM calculate rent
for a grant for a facility manager’s use?

(a) The BLM will follow the
provisions in § 2866.31 to calculate rent
for a grant involving a facility manager’s
use. However, the BLM includes the
rent from the rent schedule for a facility
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. The BLM excludes
the facility manager’s use in the 25
percent calculation (see § 2866.31(a))
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 grant for other
purposes, the BLM will continue to
charge you for your authorized use until
the BLM amends the grant to change
your use to facility manager or to some
other communications use.

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§ 2866.40 How will the BLM calculate rent
for an authorization for ancillary
Communications Uses associated with
Communications Uses on the rent
schedule?

If the ancillary communication
equipment is used solely in direct
support of the primary use (see the
definition of communications uses rent
schedule in § 2861.5 and the definition
of ancillary in § 2801.5 of this chapter),
the BLM will calculate and charge rent
only for the primary use.
§ 2866.41 How will the BLM calculate rent
for communications facilities ancillary to a
linear grant or other use authorization?

When a communications facility is
authorized as ancillary to (i.e., used for
the sole purpose of internal
communications) a grant or some other
type of use authorization (e.g., a mineral
lease or sundry notice), the BLM will
determine the rent using the linear rent
schedule (see § 2866.20) or rent scheme
associated with the other authorization,
and not the communications uses rent
schedule.
§ 2866.42 How will the BLM calculate rent
for Communications Uses within a federally
owned communications facility?

(a) If you are an occupant of a
federally owned communication
facility, you must have your own grant
and pay rent in accordance with these
regulations; and
(b) If a Federal agency holds a grant
and agrees to operate the facility as a
facility owner under § 2866.31,
occupants do not need a separate BLM
grant, and the BLM will calculate and
charge rent to the Federal facility owner
under §§ 2866.30 through 2866.44.
§ 2866.43 How does the BLM calculate rent
for passive reflectors and local exchange
networks?

The 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, the BLM will use the
provisions in § 2806.70 of this chapter
to determine rent. See the Forest Service
regulations at 36 CFR chapter II.
§ 2866.44 How will the BLM calculate rent
for a facility owner’s or facility manager’s
grant which authorizes Communications
Uses?

This section applies to a grant that
authorizes a mixture of communications

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25971

uses, some of which are subject to the
communications uses rent schedule and
some of which are not. The BLM will
determine rent for these grants 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 communications
uses rent schedule using § 2806.70 of
this chapter.
(b) The BLM establishes the rent for
each of the uses in the facility that are
covered by the rent schedule using
§§ 2866.30 and 2866.31.
(c) The 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.
Subpart 2868—Communications Uses
Trespass
§ 2868.10 What is a Communications Uses
Trespass?

In addition to the provisions of
§ 2808.10 of this chapter, holders of a
grant must comply with this section.
The following are prohibited:
(a) Placement of any type of facilities
such as generators, fuel tanks,
equipment cabinets, additional towers
or wind or solar power generation
equipment on the public lands without
formal BLM authorization to do so;
(b) Subleasing communications
facilities by allowing another entity to
place equipment or utilize your tower
without having BLM subleasing
authority to do so; or
(c) Affixing communications
equipment, such as antennas, to
vegetation or rocks on public lands
without express authorization to do so.
PART 2880—RIGHTS-OF-WAY UNDER
THE MINERAL LEASING ACT
39. The authority citation for part
2880 continues to read as follows:

■

Authority: 30 U.S.C. 185 and 189, and 43
U.S.C. 1732(b), 1733, and 1740.

Subpart 2881—General Information
40. Amend § 2881.2 by revising
paragraph (c) to read as follows:

■

§ 2881.2 What is the objective of the BLM’s
right-of-way program?

*

*
*
*
*
(c) Promotes the use of rights-of-way
in common wherever practical,
considering engineering and
technological compatibility, national
security, and land use plans; and
*
*
*
*
*

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41. Amend § 2881.5 by revising and
republishing paragraph (b) to read as
follows:

■

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§ 2881.5 What acronyms and terms are
used in the regulations in this part?

(b) Terms. Unless a term is defined in
this part, the defined terms in part 2800
of this chapter apply to this part. As
used in this part, the term:
Act means section 28 of the Mineral
Leasing Act of 1920, as amended (30
U.S.C. 185).
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 include both direct and indirect
costs, exclusive of management
overhead costs.
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 prepare applications
for grants or TUPs.
Complete application means your
application contains all the required
information under § 2884.11 and you
received notification from the BLM that
your application is complete.
Cost recovery is a fee charged to an
applicant or holder to cover the costs
incurred by the BLM in the processing
and monitoring associated with a rightof-way grant or TUP on public lands.
Exempt from rent means that the BLM
is precluded by statute or policy from
collecting rent.
Facility means an improvement or
structure, whether existing or planned,
that is, or would be, owned and
controlled by the grant or TUP holder
within the right-of-way or TUP area.
Federal lands means all lands owned
by the United States, except lands:
(i) In the National Park System;
(ii) Held in trust for an Indian or
Indian tribe; or
(iii) On the Outer Continental Shelf.
Grant means any authorization or
instrument BLM issues under section 28
of the Mineral Leasing Act, 30 U.S.C.
185, authorizing a nonpossessory,
nonexclusive right to use Federal lands
to construct, operate, maintain, or
terminate a pipeline. The term includes
those authorizations and instruments
BLM and its predecessors issued for like
purposes before November 16, 1973,
under then existing statutory authority.
It does not include authorizations
issued under FLPMA (43 U.S.C. 1761 et
seq.).
Monitoring activities means those
activities, subject to § 2886.11, the

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Federal Government performs to ensure
compliance with a right-of-way grant or
TUP, such as assignments, amendments,
or renewals.
(i) For Monitoring Categories 1
through 4, monitoring activities include
inspecting construction, operation,
maintenance, and termination of
permanent or temporary facilities and
protection and rehabilitation activities
up to the time the holder completes
rehabilitation of the right-of-way or TUP
and the BLM approves it;
(ii) For Monitoring Category 5 (Master
Agreements), monitoring activities
include those actions or activities
agreed to in the Master Agreement; and
(iii) For Monitoring Category 6,
monitoring activities include those
actions or activities agreed to between
the BLM and the applicant.
Oil or gas means oil, natural gas,
synthetic liquid or gaseous fuels, or any
refined product produced from them.
Pipeline means a line crossing Federal
lands for transportation of oil or gas.
The term includes feeder lines, trunk
lines, and related facilities, but does not
include a lessee’s or lease operator’s
production facilities located on its oil
and gas lease.
Pipeline system means all facilities,
whether or not located on Federal lands,
used by a grant holder in connection
with the construction, operation,
maintenance, or termination of a
pipeline.
Processing activities means those
activities the Federal Government
undertakes to evaluate an application
for a right-of-way grant or TUP,
including activities such as
assignments, amendments, or renewals.
It also includes preparation of an
appropriate environmental document
and compliance with other legal
requirements in evaluating an
application.
(i) For Processing Categories 1
through 4, processing activities include
preliminary application reviews,
application processing, and
administrative actions such as
assignments and amendments to the
right-of-way or TUP;
(ii) For Processing Category 5 (Master
Agreements), processing activities
include those actions or activities
agreed to in the Master Agreement; and
(ii) For Processing Category 6,
processing activities include those
actions or activities agreed to between
the BLM and the applicant.
Production facilities means a lessee’s
or lease operator’s pipes and equipment
used on its oil and gas lease to aid in
extracting, processing, and storing oil or
gas. The term includes:

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(i) Storage tanks and processing
equipment;
(ii) Gathering lines upstream from
such tanks and equipment, or in the
case of gas, upstream from the point of
delivery; and
(iii) Pipes and equipment, such as
water and gas injection lines, used in
the production process for purposes
other than carrying oil and gas
downstream from the wellhead.
Related facilities means those
structures, devices, improvements, and
sites, located on Federal lands, which
may or may not be connected or
contiguous to the pipeline, the
substantially continuous use of which is
necessary for the operation or
maintenance of a pipeline, such as:
(i) Supporting structures;
(ii) Airstrips;
(iii) Roads;
(iv) Campsites;
(v) Pump stations, including
associated heliports, structures, yards,
and fences;
(vi) Valves and other control devices;
(vii) Surge and storage tanks;
(viii) Bridges;
(ix) Monitoring and communication
devices and structures housing them;
(x) Terminals, including structures,
yards, docks, fences, and storage tank
facilities;
(xi) Retaining walls, berms, dikes,
ditches, cuts and fills; and
(xii) Structures and areas for storing
supplies and equipment.
Right-of-way means the Federal lands
BLM authorizes a holder to use or
occupy under a grant.
Substantial deviation means a change
in the authorized location or use that
requires-construction or use outside the
boundaries of the right-of-way or TUP
area or any change from, or modification
of, the authorized use. The BLM may
determine that there has been a
substantial deviation in some of the
following circumstances: When a rightof-way holder adds overhead or
underground lines, pipelines,
structures, or other facilities not
expressly included in the current grant
or TUP. Operation and maintenance
actions or safety related improvements
within an existing right-of-way are not
considered a substantial deviation.
Activities undertaken to reasonably
prevent and suppress wildfires on or
adjacent to the right-of-way do not
constitute a substantial deviation.
Temporary use permit or TUP means
a document BLM issues under 30 U.S.C.
185 that is a revocable, nonpossessory
privilege to use specified Federal lands
in the vicinity of and in connection with
a right-of-way, to construct, operate,
maintain, or terminate a pipeline or to

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Federal Register / Vol. 89, No. 72 / Friday, April 12, 2024 / Rules and Regulations
protect the environment or public
safety. A TUP does not convey any
interest in land.
Third party means any person or
entity other than BLM, the applicant, or
the holder of a right-of-way
authorization.
■ 42. Amend § 2881.7 by revising
paragraphs (a) and (b)(1) to read as
follows:
§ 2881.7

Scope.

(a) What do these regulations apply
to? The regulations in this part apply to:
(1) Issuing, amending, assigning,
renewing, and terminating grants and
TUPs for pipelines, or parts thereof, that
are:
(i) On Federal land and outside the
boundary of any Federal oil and gas
lease;
(ii) Within the boundary of a Federal
oil and gas lease but owned by a party
who is not a lessee or lease operator
with respect to that lease; or
(iii) Within the boundary of a Federal
oil and gas lease but downstream from
a custody transfer metering device; and
(2) All grants and permits the BLM
and its predecessors previously issued
under Section 28 of the Act.
(b) * * *
(1) Production facilities on an oil and
gas lease that operate for the benefit of
the lease;
*
*
*
*
*
§ 2881.9
■

[Redesignated as § 2881.8]

43. Redesignate § 2881.9 as § 2881.8.

Subpart 2883—Qualifications for
Holding MLA Grants and TUPs
44. Amend § 2883.14 by revising the
section heading and paragraph (a) to
read as follows:

■

§ 2883.14 What happens to my grant or
TUP if I die?

(a) If a grant or TUP holder dies, any
inheritable interest in the grant or TUP
will be distributed under State law.
*
*
*
*
*
Subpart 2884—Applying for MLA
Grants or TUPs
45. Amend § 2884.11 by revising
paragraphs (a) introductory text and
(c)(6) to read as follows:

■

§ 2884.11 What information must I submit
in my application?

(a) File your application on Form SF–
299 or as part of an Application for
Permit to Drill or Reenter (BLM Form
3160–3) or Sundry Notice and Report on
Wells (BLM Form 3160–5), available
from any BLM office. The application
must include the applicant’s original
signature or meet the BLM standards for
electronic commerce. Your complete
application must include:
*
*
*
*
*
(c) * * *
(6) A map of the project, showing its
proposed location and showing existing
facilities adjacent to the proposal. The
required map may include Geographic
Information Systems (GIS) file
geodatabases (FGDB), or equivalent
format such as shapefiles or .kmz files,
as requested by the BLM;
*
*
*
*
*
■ 46. Revise § 2884.12 to read as
follows:
§ 2884.12 What are the fee categories for
cost recovery?

(a) You must pay a cost recovery fee
with the application to cover the costs
to the Federal Government of processing
your application before the Federal

25973

Government incurs them. These cost
recovery fees are for the processing and
monitoring activities associated with
your grant. Subject to applicable laws
and regulations, if your application will
involve 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
estimated work of other Federal
agencies in processing your application,
you may pay other Federal agencies
directly for the costs estimated to be
incurred by them. The cost recovery fees
for Categories 1 through 4 (see
paragraph (b) of this section) are not
refundable. The fees are categorized
based on an estimate of the amount of
time that the Federal Government will
spend to process your application and
monitor your grant.
(b) The BLM bases cost recovery fees
on categories. The BLM will update the
fee schedule for Categories 1 through 4
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 fees,
which may include preliminary
application review, processing, and
monitoring, as specified in the
applicable Master Agreement. Category
6 fees are for situations when a right-ofway activity will require more than 64
hours, or when an environmental
impact statement (EIS) is required and
may include preliminary application
review costs. The cost recovery
categories and the estimated range of
Federal work hours for each category
are:

TABLE 1 TO PARAGRAPH (b)—MLA RIGHT-OF-WAY COST RECOVERY FEE CATEGORIES
MLA right-of-way cost recovery category descriptions

Federal work
hours involved

Category 1. Processing and monitoring associated with an application or existing grant or TUP ................................................

Estimated Federal work hours
are ≤8.
Estimated Federal work hours
are >8 ≤24.
Estimated Federal work hours
are >24 ≤40.
Estimated Federal work hours
are >40 ≤64.
Varies, depending on the
agreement.

Category 2. Processing and monitoring associated with an application or existing grant or TUP ................................................

Category 3. Processing and monitoring associated with an application or existing grant or TUP ................................................

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Category 4. Processing and monitoring associated with an application or existing grant or TUP ................................................

Category 5. Master Agreements .....................................................................................................................................................

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Federal Register / Vol. 89, No. 72 / Friday, April 12, 2024 / Rules and Regulations
TABLE 1 TO PARAGRAPH (b)—MLA RIGHT-OF-WAY COST RECOVERY FEE CATEGORIES—Continued
MLA right-of-way cost recovery category descriptions

Federal work
hours involved

Category 6. Processing and monitoring associated with an application or existing grant or TUP, including preliminary-application reviews.*

Estimated Federal work hours
are >64.

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* Preliminary application review costs are those expenses related to meetings held between a Federal agency and the applicant to discuss a
right-of-way application. These reviews are not required but are encouraged.

(c) You may obtain a copy of the
current cost recovery fee schedule at
https://www.blm.gov, by contacting your
local BLM state, district, or field office,
or by writing: Attention to the Division
of Lands, Realty and Cadastral Survey,
U.S. Department of the Interior, Bureau
of Land Management, 1849 C Street NW,
Mail Stop 2134LM, Washington, DC
20240.
(d) After an initial review of your
application, the BLM will notify you of
the processing category into which your
application fits. You must then submit
the appropriate payment for that
category before the BLM will begin
processing your application. Your
signature on a cost recovery Master
Agreement constitutes your agreement
with the cost recovery category
decision. For reimbursement of the
BLM’s costs for Category 5 and 6 rightof-way applications or grants, see
§§ 2884.15, 2884.16, and 2884.17. If you
disagree with the category that the BLM
has determined for your application,
you may appeal the decision under
§ 2881.10. If you paid the cost recovery
fee and you appeal a Category 1 through
4 determination, the BLM will work on
your application, grant, or TUP while
the appeal is pending. If IBLA finds in
your favor, you will receive a refund or
adjustment of your cost recovery fee.
(e) In processing your application, the
BLM may determine at any time that the
application requires preparing an EIS. If
this occurs, the BLM will send you a
decision changing your cost recovery
category to Category 6. You may appeal
the decision under § 2881.10.
(f) If you hold an authorization
relating to TAPS, the BLM will send you
a written statement seeking
reimbursement of actual costs within 60
calendar days after the close of each
quarter. Quarters end on the last day of
March, June, September, and December.
In processing applications and
administering authorizations relating to
TAPS, the Department of the Interior
will avoid unnecessary employment of
personnel and needless expenditure of
funds.
47. Revise § 2884.13 to read as
follows:

■

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§ 2884.13 When will the BLM waive cost
recovery fees?

(a) The BLM may waive your cost
recovery fees if you are a:
(1) State or local government, or an
agency of such a government, and the
BLM issues the grant for governmental
purposes benefitting the general public.
However, if you collect revenue from
charges you levy on customers for
services similar to those of a profitmaking corporation or business, or you
assess similar fees to the United States
for similar purposes, cost recovery fees
will not be waived; or
(2) Federal agency, and your cost
recovery category determination is
Category 1 to 4.
(b) The BLM will not waive your cost
recovery fees if you are in trespass.
■ 48. Amend § 2884.14 by revising the
section heading to read as follows:
§ 2884.14 When does the BLM reevaluate
the cost recovery fees?

*

*
*
*
*
49. Amend § 2884.15 by revising the
section heading and paragraph (a) to
read as follows:

■

§ 2884.15 What is a Master Agreement
(Cost Recovery Category 5) and what
information must I provide to the BLM when
I request one?

(a) A Master Agreement (Cost
Recovery Category 5) is a written
agreement covering processing and
monitoring fees (see § 2884.16 of this
part) negotiated between the BLM and
you that involves multiple BLM grant or
TUP approvals for projects within a
defined geographic area or for a specific
common activity for many projects.
*
*
*
*
*
■ 50. Amend § 2884.16 by:
■ a. Revising paragraphs (a)(2), (5) and
(8);
■ b. Redesignating paragraph (a)(9) as
(a)(10) and adding a new paragraph
(a)(9); and
■ c. Adding paragraph (c).
The additions and revisions read as
follows:
§ 2884.16 What provisions do Master
Agreements contain and what are their
limitations?

(a) * * *

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(2) Describes the work you will do
and the work the BLM will do to
complete right-of-way activities;
*
*
*
*
*
(5) Explains how the BLM will
monitor actions on a grant or TUP and
how the BLM will receive payment for
this work;
*
*
*
*
*
(8) Contains specific conditions for
terminating the Agreement;
(9) May be prepared so that it
includes previously granted rights-ofway held by the right-of-way holder;
and
*
*
*
*
*
(c) If you sign a Master Agreement,
you waive your right to request a
reduction of cost recovery fees.
■ 51. Amend § 2884.17 by
■ a. Revising the section heading,
paragraph (a), and paragraph (b)(3);
■ b. Redesignating paragraphs (b)(4) and
(b)(5) as paragraphs (b)(5) and (b)(6);
and
■ c. Adding a new paragraph (b)(4).
The revisions and addition read as
follows:
§ 2884.17 How will the BLM manage my
Category 6 project?

(a) For Category 6 applications, you
and the BLM must enter into a written
agreement that describes how the BLM
will process your application or monitor
your grant. The BLM may require that
the final agreement contains a work
plan and a financial plan, and a
description of any existing agreements
you have with other Federal agencies for
cost reimbursement associated with
such application or grant.
(b) * * *
(3) Develop a preliminary financial
plan, if applicable, which estimates the
actual costs of processing your
application and monitoring your
project;
(4) Collect, in advance and at the
BLM’s discretion, a deposit for your
Category 6 project to initiate processing
your application while all of the plans
and agreements are being completed;
*
*
*
*
*
■ 52. Amend § 2884.21 by revising
paragraph (c) to read as follows:

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§ 2884.21 How will the BLM process my
application?

*

*

*

*

25975

(c) Customer service standard. The
BLM will process your complete
application as follows:

*

TABLE 1 TO PARAGRAPH (c)
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(s) for a right-of-way or TUP 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 your right-of-way or TUP application(s) as specified in the Master Agreement.
The BLM will notify you in writing within the initial 60-day processing period of the estimated processing time.

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

*

*
*
*
*
53. Amend § 2884.23 by revising
paragraph (a)(6) to read as follows:

■

§ 2884.23 Under what circumstances may
the BLM deny my application?

(a) * * *
(6) You do not comply with a
deficiency notice (see § 2804.25(c)) or
with any requests from the BLM for
additional information needed to
process the application.
*
*
*
*
*
■ 54. Revise § 2884.24 to read as
follows:

§ 2884.27 What additional requirements
are necessary for grants for pipelines 24 or
more inches in diameter?

If an application is for a grant for a
pipeline 24 inches or more in diameter,
the BLM will not issue or renew the
grant until after the BLM notifies the
appropriate committees of Congress in
accordance with 30 U.S.C. 185(w).

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§ 2884.24 What fees must I pay if the BLM
denies my application, or if I withdraw my
application or relinquish my grant or TUP?

If the BLM denies your application,
you withdraw it, or you relinquish your
grant or TUP, you owe the current fees
for the applicable cost recovery category
as set forth at § 2884.12(b), unless you
have a Category 5 or 6 application.
Then, the following conditions apply:
(a) If the BLM denies your Category 5
or 6 application, you are liable for the
actual 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) If you withdraw your application
in writing before the BLM issues a grant
or TUP, you are liable for all actual
processing costs the United States has
incurred up to the time you withdraw
the application and for the actual costs
of terminating your application. Any
money you have not paid is due within
30 calendar days after receiving a bill
for the amount due; and
(c) If you relinquish your grant or TUP
in writing, you are liable for all actual
costs the United States has incurred up
to the time you relinquish the grant and
for the actual costs of closing your grant.
Any cost recovery money you have not
previously paid is due within 30
calendar days after receiving a bill for
the amount due. The BLM will refund

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any cost recovery money you paid in
Categories 5 or 6 that was not used to
cover costs the United States incurred as
a result of your grant.
■ 55. Revise § 2884.27 to read as
follows:

Subpart 2885—Terms and Conditions
of MLA Grants and TUPs
56. Amend § 2885.12 by revising the
section heading to read:

■

§ 2885.12
provide?

What rights does a grant or TUP

*

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*
*
*
57. Amend § 2885.17 by revising
paragraph (e) and adding a new
paragraph (g) to read as follows:

■

§ 2885.17 What happens if I do not pay
rents and fees or if I pay the rents or fees
late?

*

*
*
*
*
(e) The BLM will retroactively bill for
uncollected or under-collected rent,
including late payment and
administrative fees.
*
*
*
*
*
(g) The BLM will not approve any
further activities associated with your
right-of-way until the BLM receives any
outstanding payments that are due.
58. Amend § 2885.19 by revising
paragraph (b) to read as follows:
§ 2885.19 What is the rent for a linear
right-of-way grant?

*

*
*
*
*
(b) You may obtain a copy of the
current Per Acre Rent Schedule at
https://www.blm.gov, by contacting your
local BLM state, district, or field office,

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or by writing: Attention to the Division
of Lands, Realty and Cadastral Survey,
U.S. Department of the Interior, Bureau
of Land Management, 1849 C Street NW,
Mail Stop 2134LM, Washington, DC
20240.
■ 59. Revise § 2885.24 to read as
follows:
§ 2885.24 If I hold a grant or TUP, what
cost recovery fees must I pay?

(a) Subject to § 2886.11, you must pay
a fee to the BLM for any costs the
Federal Government incurs in
processing, inspecting, and monitoring
the construction, operation,
maintenance, and termination of the
pipeline and protection and
rehabilitation of the Federal lands your
grant or TUP covers. The BLM
categorizes the cost recovery fees based
on the estimated number of work hours
necessary to manage your grant or TUP.
Categories 1 through 4 fees are not
refundable. The description of each
Category and the associated work hours
is found at § 2884.12(b).
(b) The BLM will update the cost
recovery fee schedule for Categories 1
through 4 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
cost recovery fees as specified in the
applicable Master Agreement.
(c) You may obtain a copy of the
current cost recovery fee schedule at
https://www.blm.gov, by contacting
your local BLM state, district, or field
office, or by writing: Attention to the
Division of Lands, Realty and Cadastral
Survey, U.S. Department of the Interior,
Bureau of Land Management, 1849 C
Street NW, Mail Stop 2134LM,
Washington, DC 20240.
Subpart 2886—Operations on MLA
Grants and TUPs
60. Amend § 2886.17 by revising
paragraph (c)(2), redesignating

■

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paragraph (c)(3) as paragraph (c)(4) and
adding a new paragraph (c)(3) to read as
follows:

■

§ 2886.17 Under what conditions may BLM
suspend or terminate my grant or TUP?

§ 2888.10

64. Amend § 2888.10 by revising
paragraph (a) to read as follows:
What is a trespass?

*

*
*
*
*
(c) * * *
(2) The BLM consents in writing to
your request to relinquish the grant or
TUP;
(3) A court terminates it or requires
the BLM to terminate it; or
*
*
*
*
*

(a) Trespass is using, occupying,
developing, or subleasing 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.
*
*
*
*
*

Subpart 2887—Amending, Assigning,
or Renewing MLA Grants and TUPs

PART 2920—LEASES, PERMITS AND
EASEMENTS

61. Amend § 2887.10 by revising
paragraph (b) to read as follows:

■

65. The authority citation for part
2920 continues to read as follows:

■

§ 2887.10 When must I amend my
application, seek an amendment of my
grant or TUP, or obtain a new grant or TUP?

*

*
*
*
*
(b) The requirements to amend an
application or a grant or TUP are the
same as those for a new application,
including paying cost recovery fees and
rent according to §§ 2884.12, 2885.23,
2885.19, and 2886.11.
*
*
*
*
*
■ 62. Amend § 2887.11 by adding
paragraph (i) to read as follows:
§ 2887.11 May I assign or make other
changes to my grant or TUP?

*

*
*
*
*
(i) You must seek an amendment of
your authorization if you propose a
substantial deviation in location or use.
■ 63. Amend § 2887.12 by revising
paragraph (b) and adding paragraphs (f)
and (g) to read as follows:
§ 2887.12

How do I renew my grant?

*

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Subpart 2888—Trespass

*
*
*
*
(b) The BLM may modify the terms
and conditions of the grant at the time
of renewal, and you must pay the cost
recovery fees.
*
*
*
*
*
(f) If you do not submit your
application under paragraph (a) of this
section at least 120 days prior to
authorization expiration, it is
considered delinquent; the BLM will
not be subject to the customer service
standards in this chapter, and it will be
processed only as time and resources
are available.
(g) The BLM will review your
application and determine if you have
complied with all of the provisions in
this part and whether or not your
authorized use will be renewed. The
BLM will notify you within 30 days
from acceptance of a complete
application if it will take longer than 60
days to review your application.

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Authority: 43 U.S.C. 1740.

Subpart 2920—Leases, Permits and
Easements: General Provisions
66. Revise § 2920.0–5 to read as
follows:

■

§ 2920.0–5

Definitions.

As used in this part, the term:
(a) Applicant means any person who
submits an application for a land use
authorization under this part.
(b) Authorized officer means any
employee of the Bureau of Land
Management to whom has been
delegated the authority to perform the
duties described in this part.
(c) Casual use means any short-term
non-commercial activity that does not
cause appreciable damage or
disturbance to the public lands, their
resources, or improvements, and that is
not prohibited by closure of the lands to
such activities.
(d) Cost recovery is a fee charged to
an applicant or holder to reimburse the
United States for processing and
monitoring costs that concern
applications and other documents
relating to the public lands, or that are
incurred when processing, inspecting,
or monitoring any proposed or
authorized leases, permits, and
easements located on the public lands.
(e) Easement means an authorization
for a non-possessory, non-exclusive
interest in lands which specifies the
rights of the holder and the obligation
of the Bureau of Land Management to
use and manage the lands in a manner
consistent with the terms of the
easement.
(f) Knowing and willful means that a
violation is knowingly and willfully
committed if it constitutes the voluntary
or conscious performance of an act
which is prohibited or the voluntary or
conscious failure to perform an act or

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duty that is required. The term does not
include performances or failures to
perform which are honest mistakes or
which are merely inadvertent. The term
includes, but does not require,
performances or failures to perform
which result from a criminal or evil
intent or from a specific intent to violate
the law. The knowing or willful nature
of conduct may be established by plain
indifference to or reckless disregard of
the requirements of law, regulations,
orders, or terms of a lease, permit, and
easement. A consistent pattern of
performance or failure to perform also
may be sufficient to establish the
knowing or willful nature of the
conduct, where such consistent pattern
is neither the result of honest mistake
nor mere inadvertency. Conduct which
is otherwise regarded as being knowing
or willful is rendered neither accidental
nor mitigated in character by the belief
that the conduct is reasonable or legal.
(g) Land use authorization means any
authorization to use the public lands
issued under this part.
(h) Land use proposal means an
informal statement, in writing, from any
person to the authorized officer
requesting consideration of a specified
use of the public lands.
(i) Land use plan means resource
management plans or management
framework plans prepared by the
Bureau of Land Management pursuant
to its land use planning system.
(j) Lease means an authorization to
possess and use public lands for a fixed
period of time.
(k) Permit means a short-term
revocable authorization to use public
lands for specified purposes.
(l) Person means any person or entity
legally capable of conveying and
holding lands or interests therein, under
the laws of the State within which the
lands or interests therein are located,
who is a citizen of the United States, or
in the case of a corporation, is subject
to the laws of any State or of the United
States.
(m) Proponent means any person who
submits a land use proposal, either on
his/her own initiative or in response to
a notice for submission of such
proposals.
(n) Public lands means lands or
interests in lands administered by the
Bureau of Land Management, except
lands located on the Outer Continental
Shelf and lands held for the benefit of
Indians, Aleuts, and Eskimos.
■ 67. Amend § 2920.6 by revising the
section heading and paragraphs (b), (d),
and (h) to read as follows:
§ 2920.6

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(b) The selected land use applicant
shall pay cost recovery fees to the
United States for reasonable
administrative and other costs incurred
by the United States in processing a
land use authorization application and
in monitoring construction, operation,
maintenance, and rehabilitation of
facilities authorized under this part,
including preparation of reports and
statements required by the National
Environmental Policy Act of 1969 (43
U.S.C. 4321 et seq.). The payment of
cost recovery fees shall be in accordance
with the provisions of §§ 2804.14 and
2805.16 of this chapter.
*
*
*
*
*
(d) A selected applicant who
withdraws, in writing, a land use
application before a final decision is

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reached on the authorization is
responsible for all reasonable costs
incurred by the United States in
processing the application up to the day
that the authorized officer receives
notice of the withdrawal and for costs
subsequently incurred by the United
States in terminating the proposed land
use authorization process. Payment of
cost recovery fees shall be made within
30 days of receipt of notice from the
authorized officer of the amount due.
*
*
*
*
*
(h) The authorized officer shall, on
request, give a selected applicant an
estimate, based on the best available
cost information, of the reasonable costs
that may be incurred by the United
States in processing the proposed land
use authorization. However, payment of

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cost recovery fees shall not be limited to
the estimate of the authorized officer if
actual costs exceed the projected
estimate.
68. Amend § 2920.8 by revising
paragraph (b) to read as follows:

■

§ 2920.8

Fees.

*

*
*
*
*
(b) Cost Recovery fees. Each request
for renewal, transfer, or assignment of a
lease or easement must be accompanied
by non-refundable cost recovery fees
determined in accordance with the
provisions of §§ 2804.14 and 2805.16 of
this chapter.

[FR Doc. 2024–06997 Filed 4–11–24; 8:45 am]
BILLING CODE 4331–29–P

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