[Federal Register Volume 64, Number 114 (Tuesday, June 15, 1999)]
[Proposed Rules]
[Pages 32106-32143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14588]
[[Page 32105]]
_______________________________________________________________________
Part II
Department of the Interior
_______________________________________________________________________
Bureau of Land Management
_______________________________________________________________________
43 CFR Parts 2800 and 2880
Rights-of-Way, Principles and Procedures; Rights-of-Way Under the
Mineral Leasing Act; Proposed Rule
Federal Register / Vol. 64, No. 114 / Tuesday, June 15, 1999 /
Proposed Rules
[[Page 32106]]
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 2800 and 2880
[WO-350-2800-24 1A]
RIN 1004-AC74
Rights-of-Way, Principles and Procedures; Rights-of-Way Under the
Mineral Leasing Act
AGENCY: Bureau of Land Management, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Land Management (BLM) of the United States
Department of the Interior proposes to: amend its right-of-way
regulations to revise rent and cost recovery procedures and policies;
adjust cost recovery fees to reflect cost increases since the current
regulations became effective in July 1987; eliminate automatic
exemptions from cost recovery for federal agencies, except for those
agencies and projects exempted by law; use a short-term right-of-way
instead of a temporary use permit for rights-of-way issued under the
Federal Land Policy and Management Act of 1976; clarify how BLM will
apply rent schedules for communication site rights-of-way; broaden the
conditions for which BLM will require advance payment of rent; rephrase
the language of the regulations into plain language; and reorganize the
regulations to reflect the sequence in which BLM takes action on
applications.
DATES: Send your comments to reach BLM on or before October 13, 1999.
BLM will not necessarily consider any comments received after the above
date during its decision process on the proposed rule. Because of the
length of the comment period, BLM does not intend to extend it.
ADDRESSES: You may mail comments to: Bureau of Land Management,
Administrative Record, Room 401 LS, 1849 C St., N.W., Washington, D.C.
20240. You may also hand-deliver comments to: BLM, 1620 L St., N.W.,
Room 401, Washington, D.C. Comments, including names and addresses of
respondents, will be available for public review at the above address
during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through
Friday, except holidays. For information about filing comments
electronically, see the SUPPLEMENTARY INFORMATION section under
``Electronic access and filing.''
FOR FURTHER INFORMATION CONTACT: Ron Montagna, (202) 452-7782,
ron__montagna@blm.gov. Individuals who use a telecommunications device
for the deaf (TDD) may call the Federal Information Relay Service
(FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern time,
Monday through Friday, except holidays.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures and Information
II. Background
III. Discussion of Proposed Rule
IV. Procedural Matters
I. Public Comment Procedures
Electronic Access and Filing Address
You may view an electronic version of this proposed rule at BLM's
Internet home page at www.blm.gov. You may also comment via the
Internet to: WOComment@blm.gov. If you submit your comments
electronically, please submit them as an ASCII file to minimize
computer problems and include ``Attention: AC74'' and your name and
return address in your Internet message. If you do not receive a
confirmation from the system that we have received your Internet
message, contact us directly at (202) 452-5030.
Written Comments
Confine written comments on the proposed rule to issues pertinent
to the proposed rule and explain the reasons for any recommended
changes. Where possible, reference the specific section or paragraph of
the proposal which you are addressing. BLM may not necessarily consider
or include in the Administrative Record for the final rule comments
which it receives after the comment period closes (see DATES), or
comments delivered to an address other than those listed above (see
ADDRESSES).
Written comments, including the names, street addresses, and other
contact information about respondents, will be available for public
review at the above address during regular business hours (7:45 am to
4:15 pm), Monday through Friday, except holidays. Comments made by
Internet will be available for inspection at the end of the comment
period. Individual respondents may request confidentiality. If you wish
to request that BLM consider withholding your name, street address and
other contact information (such as: Internet address, FAX or phone
number) from public review or from disclosure under the Freedom of
Information Act, you must state this prominently at the beginning of
your comment. BLM will consider each request on a case-by-case basis.
Such requests will be granted to the extent allowed by law. All
submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, will be made available for public inspection in their
entirety.
BLM is interested in all comments that you may have on the issues.
We are especially interested, however, in comments and rationale in the
following areas:
Whether or not BLM should continue to issue temporary use
permits for rights-of-way issued under the Federal Land Policy and
Management Act;
Whether or not there should be a separate cost recovery
decision for monitoring costs or whether each application category
decision should continue to determine both the processing and the
monitoring category fees. If you believe that there should be separate
application and monitoring categories, please provide definitions for
the monitoring categories and identify methods that BLM can use to
relate a fee to a specific category;
Whether BLM should charge for processing right-of-way
grant renewals, and, if so, on what should the costs be based;
Whether or not federal agencies should continue to be
exempt from cost recovery and rent payments;
When and under what conditions BLM should require the
advance payment of rent;
Whether BLM should establish a new ``Minimal Impact'' cost
recovery category for non-Mineral Leasing Act actions that require less
than 8 hours to process; and
Whether BLM should impose fees for late payment of rent.
Interagency Coordination
The United States Department of Agriculture, Forest Service, is
currently preparing regulations to recover its costs for processing and
administering special use authorizations on National Forest System
lands. In doing so, the Forest Service intends to adopt, to the extent
possible, the processes, procedures, and schedules identified in this
proposed rule. The Forest Service will evaluate the comments received
in response to this proposed rule and will consider those comments in
developing proposed regulations applicable to special use applications
and authorizations on National Forest System lands. The Forest Service
intends to publish its proposed cost recovery regulations for review
and comment as soon after the close of the comment period on these
proposed rules as possible.
[[Page 32107]]
II. Background
General Authorities and Policies
Section 501 of the Federal Land Policy and Management Act (FLPMA),
43 U.S.C. 1761, authorizes the BLM to issue and renew rights-of-way
under, over, and through lands under its jurisdiction. These rights-of-
way may contain facilities for impounding, storing and transporting
water; for transporting and distributing liquids and gases other than
oil and gas; for distributing and transporting solid materials, other
than oil and gas and products refined from them; for generating,
transmitting, and distributing electricity; for transmitting and
receiving electronic signals, such as radio, television and telegraph;
and for transportation corridors, such as railroads, roads, tramways,
and livestock driveways.
Section 28 of the Mineral Leasing Act, as amended (MLA), 30 U.S.C.
185, authorizes the Secretary of the Interior to grant to qualified
applicants rights-of-way through Federal lands for transporting oil,
gas, synthetic liquid or gaseous fuels, or other refined products. The
MLA also allows for temporary use permits to supplement each pipeline
right-of-way for the purposes of constructing, operating, maintaining
and terminating the pipeline and to protect the natural environment and
public safety.
BLM has designed its right-of-way program to coordinate the actions
of individuals, governments, and businesses in using public lands for
right-of-way purposes; promote the sharing of rights-of-way; protect
the quality of natural resources; prevent unnecessary environmental
damage to lands and resources; and protect the right-of-way holder's
investments in improvements on the right-of-way.
Statistics About Rights-of-Way
As of September 30, 1998, there were 87,511 active right-of-way
grants under BLM administration. Most of the grants are located in the
western states of Alaska, Arizona, California, Colorado, Idaho,
Montana, Nevada, New Mexico, Oregon, Utah, Wyoming, North and South
Dakota and Oklahoma. New Mexico had the largest number of grants, and
Wyoming had the next largest. There were 63 grants located east of the
Mississippi River. Of the right-of-way grants, approximately 28 percent
are for roads and highways, 28 percent represent oil and gas related
systems, 4 percent represent grants for communication sites, 13 percent
represent grants for electrical generation and transmission lines, and
27 percent are for other uses, such as telephone, telegraph, and other
miscellaneous systems.
III. Discussion of the Proposed Rule
Unless specifically stated in the discussion below, BLM does not
intend to make policy changes by rewording and streamlining the
regulatory text. If you believe that rewording the regulatory text has
resulted in BLM's eliminating or changing important concepts or
policies, please describe in your comments these modifications or
omissions and the reasons that you believe the regulations should
retain the concept from the existing regulations.
General Discussion
The discussions below affect more than one section of the proposed
regulations and contain proposed policy changes and the rationale for
them.
Cost Recovery Provisions
(Proposed sections 2803.14, 2804.16, 2883.11, and 2884.13, and subparts
2807 and 2887)
It may be helpful to read the preamble to the July 25, 1986,
proposed rules, published at 51 FR 26836, and to the July 8, 1987,
final rules at 52 FR 25802, to get more background information on
current cost recovery policies.
BLM proposes the following specific changes to the cost recovery
provisions:
Reduce the number of fee categories used for recovering
the cost of processing applications from five to four (for rights-of-
way issued under FLPMA) and from six to four (for rights-of-way issued
under the MLA);
Clarify the definition of the term ``category I, II,
etc.,'' to include processing steps and work hours;
Provide a ``master agreement'' category for multiple
applications submitted by a single applicant in a specific geographical
area;
Adjust the fees for both processing an application and for
monitoring any ensuing grant to reflect the reasonable (FLPMA) or
actual (MLA) costs and the effects of inflation;
Use proposed fees to determine the cost reimbursement fees
for assignments and renewals; and
Broaden the conditions under which BLM will require
advance payment of rents.
We expect that these proposed changes will shorten application
processing time, reduce costs, and result in a more equitable
distribution of business costs between the benefitting entity and the
general public.
Background for changes. Section 504(g) of FLPMA authorizes BLM to
recover the ``reasonable'' costs of processing and monitoring rights-
of-way issued under Title V, 43 U.S.C. 1761. Section 28(f) of the MLA,
30 U.S.C. 185(l), requires applicants for pipeline rights-of-way issued
under the MLA to reimburse the United States for the administrative and
other costs involved in processing applications and for the United
States' costs of monitoring activities under those grants. The
administrative and other costs associated with MLA grants are
collectively referred to as ``actual costs.''
Section 304(b) of FLPMA allows the Secretary of the Interior to
establish ``reasonable costs'' for processing applications and other
documents relating to public lands. Several factors that the Secretary
may consider in establishing reasonable costs include the costs of
special studies; preparing and distributing environmental documents,
such as environmental assessments and environmental impact statements;
monitoring the construction, operation, maintenance, and termination of
facilities; and other special activities.
BLM first issued cost recovery regulations for linear and areal
rights-of-way in 1979. The regulations for FLPMA rights-of-way were
successfully challenged in federal court in Nevada Power Co. v. Watt,
711 F.2d 913 (10th Cir. 1983), on the basis that the regulations did
not sufficiently consider each of the ``reasonability criteria'' in
section 304(b) of FLPMA, 43 U.S.C. 1734(b). BLM then developed
definitions for these criteria, which were published in July 1987.
Based on field studies conducted in 1982 and 1983, which measured
the costs of processing right-of-way applications and monitoring
grants, BLM developed a number of ``cost categories'' and the
corresponding average costs of processing applications that fall into
one or another of these categories. BLM broke the cost information into
various elements, e.g., filing, status review, field examination,
environmental considerations, and document preparation. For FLPMA
rights-of-way, BLM related these costs to the statutory reasonability
criteria and made decisions to: (1) retain the cost if it was
reasonable, (2) eliminate the cost if it did not meet the reasonability
requirements, or (3) adjust the cost downward, if it contained both
public and private benefits under the reasonability requirements. From
this analysis, BLM proposed four cost categories with fixed cost
recovery fee amounts and a fifth category, as described in the next
paragraph, requiring the full reasonable costs as determined by BLM.
[[Page 32108]]
In cases where a fixed fee amount would not be appropriate, such as
complex projects, BLM established a final category for the reasonable
costs of processing individual cases and of monitoring activities under
the grant. In these cases, each applicant had the options of: (1)
completely analyzing the estimated actual costs relative to the
reasonability criteria, (2) waiving the full analysis and completing a
less demanding analysis that could limit the costs recovered to 1
percent of construction costs, or (3) waiving these analyses and
agreeing to pay the full reasonable costs involved, as jointly
determined by BLM and the applicant.
For MLA rights-of-way, BLM also used the 1982 through 1983 field
studies to establish five fixed fee amount categories, each based on
its relevant average actual cost. A final sixth category requiring
periodic payment of actual costs was also included for these rights-of-
way.
At the time of the study BLM did not have sufficient cost data on
monitoring grants to determine the exact monitoring costs. To provide
some recovery of costs, BLM estimated the necessary monitoring cost for
each fixed fee category for both FLPMA and MLA rights-of-way.
FLPMA applicants could request that BLM review their specific
circumstances and consider a waiver or reduction in the amount of the
processing or monitoring fees or both. Current regulations exclude from
the cost recovery provisions certain applicants, such as federal
agencies, ``non-utility type'' state and local governments, and
applicants for ``cost-share'' roads and reciprocal right-of-way
agreements.
BLM conducted an extensive field study of processing and monitoring
costs in 1986. The study generally verified the processing costs
developed from the earlier study. The study also demonstrated that the
costs related to monitoring could be further refined. Current
regulations do not specify any method for increasing costs for
inflation or similar factors except for proposing a change in
regulations. As the cost of living has increased steadily for the last
40 years (the last yearly drop in the Consumer Price Index occurred in
1955), a mechanism for adjusting processing and monitoring fees is
desirable. BLM has looked at various indices, e.g., the Consumer Price
Index (CPI), the CPI-U (urban), and the Implicit Price Deflator-Gross
Domestic Product (IPD-GDP), that could be used to update fee schedules
periodically.
In 1995 the Inspector General (IG) for the Department of the
Interior audited BLM's cost recovery efforts on rights-of-way. The IG
found BLM's financial system was not adequate to give a good estimate
of the costs of the right-of-way program. The IG found that BLM's
processing fees were too low. The IG estimated costs from two
approaches: (1) examining randomly selected case files and estimating
the time required to perform the work involved and (2) polling BLM
personnel as to the amount of time spent on right-of-way casework. In
both cases the IG compared these estimates to the actual amount of cost
recovery money collected for the specific cases in (1) and (2). Based
on 75 sample cases and an estimated 3,000 cases per year, the IG
estimated that BLM was losing $640,000 per year in processing costs.
(The 3,000-case figure includes cases which, under current regulations,
are excluded from cost recovery.) The IG recommended that BLM revise
the regulations to recover all applicable costs.
BLM has adopted the IG's recommendations by proposing to: (1)
increase the processing and monitoring costs for right-of-way
applications, (2) provide for cost adjustments to accommodate increases
in the economic indicator reflecting the general cost of labor, and (3)
eliminate fixed dollar amounts from the regulations to allow for
periodic cost adjustments.
The following paragraphs describe the proposed changes to the cost
recovery provisions of the existing right-of-way regulations. Changes
would decrease the number of cost recovery categories for both FLPMA
and MLA applications and for monitoring categories, revise the
definitions of the categories, eliminate the automatic exemption from
paying processing costs for Federal agencies, and increase category
fees.
Cost recovery categories. Experience suggests a need for one less
fixed fee amount category for FLPMA applications processed under
proposed section 2804.20 and two less categories for MLA applications
processed under proposed section 2884.18. BLM rarely uses existing
Category IV for FLPMA applications or existing Categories IV and V for
MLA applications. These categories involved applications which
historically require multiple field examinations that are normally
associated with collecting original data to complete environmental
analysis or to verify the existence or absence of a threatened or
endangered plant or animal species. In these cases, the work involved
in processing the applications generally meets the criteria for
Category V for FLPMA applications and Category VI for MLA applications,
both of which address complex projects.
The proposed regulations at sections 2804.14 and 2884.12 would
remove the existing Category IV for FLPMA applications and Categories
IV and V for MLA applications. BLM would establish a new Category IV
for use with both types of applications. The new Category IV would
require the applicant to pay the full reasonable or actual cost to BLM
of processing right-of-way applications that require multiple field
examinations and collecting or verifying original data.
The proposed regulations at sections 2804.17 and 2884.13 establish
a ``master agreement'' category for both FLPMA and MLA right-of-way
applications. A master agreement is an agreement between BLM and you
that, among other things, specifies you will reimburse BLM for the full
reasonable costs of processing your application(s), if you are seeking
a FLPMA grant, or the full actual costs of processing your
application(s), if you are seeking an MLA grant. Paragraph (b) of
proposed section 2804.17 lists the areas of negotiation. The master
agreement application category is especially useful for MLA right-of-
way applications. Most MLA right-of-way applications filed with BLM
involve activities within a limited area, an oil and gas field of
relatively compact size. For example in New Mexico, an oil and gas
field about 50 miles by 50 miles was developed on or crossing BLM-
administered lands. In a 20-month period, developers filed some 205
right-of-way applications, each requiring individual category decisions
and the collection of separate fees. One developer filed about half of
the applications; another filed about 15 percent. A coordinated
agreement for processing multiple applications for rights-of-way
located in a limited area would have resulted in a more timely and
complete response for both BLM and the companies involved.
The proposed regulations specify what master agreements should
include, what BLM expects of applicants, and what applicants may expect
of BLM.
The Forest Service proposes a fee category called ``Minimal
Impact.'' The Forest Service considers this fee category to include
minor recreation activities in an area already approved or designated
in a forest plan for that use. Examples of ``minor recreation
activities'' would be a one-time permit for a wedding, a marathon, a
bike race, and a company picnic for more than 75 people. The Forest
Service proposes a flat fee of $75 for processing an application in the
Minimal Impact Category and no monitoring fee, since the authorization
covers a one-time event.
[[Page 32109]]
These activities do not qualify for grants issued under Title V of
FLPMA, and BLM does not propose to add a Minimal Impact Category to our
revised category list. If we did adopt a Minimal Impact Category, we
would charge the same fee as the Forest Service proposes. We invite
your comments on whether to include this category for short-term
activities authorized by temporary use permits issued under the MLA or
short-term grants issued under FLPMA.
Revised category definitions. Applicants for grants have requested
that BLM revise the existing category definitions. Applicants have
stated that the definitions of the categories do not clearly state
which costs to exclude or include. The proposed category definitions
attempt to better define the categories by stating what factors BLM
must consider in determining the application category. These factors
include (1) whether or not original data are needed, (2) whether or not
BLM must amend an existing land-use plan, (3) how many, if any, field
examinations are needed, and (4) the estimated number of work hours
needed to complete processing the application.
The current fee category for processing an application also
establishes the fee category for monitoring the subsequent grant. Once
BLM issues the grant, however, the situation may change from that
existing when the application was processed and require reevaluation of
monitoring costs. For example, the presence of an endangered species or
of an archaeological site may require numerous field observations by
BLM or the grant holder, especially during construction. Thus,
monitoring costs may increase.
Current fee schedules of processing and monitoring costs are
estimated average costs across BLM. The studies performed in 1986
tracked monitoring costs according to the category decisions for
processing. While normal statistical analysis would eliminate unusually
high or low values, the remainder, as an average, should account for
most of the variables between easy-to-hard processing and easy-to-hard
monitoring.
If BLM establishes monitoring fees separate from application
processing fees, we propose to establish the monitoring categories
based on the number of work hours involved, including the number of
field examinations needed to monitor the grant. These hour estimates
would be determined separately from the hour estimates for the
processing fee categories. For instance, Monitoring Category I would
consist of those grants that require less than 24 hours of work,
including field examinations; Monitoring Category II would consist of
those grants requiring between 24 and 36 hours of work, including field
examinations; and Monitoring Category III would consist of those grants
requiring between 37 and 50 hours of work, including field
examinations. If you believe that this is an inappropriate criterion
upon which to base monitoring categories, please suggest alternative
criteria.
Background for category fee amounts. Current regulations at subpart
2808 of this title set fees for processing and monitoring costs as
follows:
------------------------------------------------------------------------
Processing Monitoring
Category fee fee
------------------------------------------------------------------------
I............................................. $125 $50
II............................................ 300 75
III........................................... 550 100
IV............................................ 925 200
V............................................. Full reasonable costs
as required.
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Based on the field study of some 1600 cases, BLM should have
adjusted these fees in 1987, because of inflation and underestimating
costs, to:
------------------------------------------------------------------------
Processing Monitoring
Category fee fee
------------------------------------------------------------------------
I............................................. $175 $65
II............................................ 300 100
III........................................... 575 175
IV............................................ 820 200
------------------------------------------------------------------------
Current MLA regulations at subpart 2883 set application processing
and monitoring fees as follows:
------------------------------------------------------------------------
Processing Monitoring
Category fee fee
------------------------------------------------------------------------
I............................................. $125 $25
II............................................ 275 50
III........................................... 350 75
IV............................................ 600 150
V............................................. 1,000 250
------------------------------------------------------------------------
Based on the field study of more than 600 cases, BLM should have
adjusted the MLA fees in 1987 to:
------------------------------------------------------------------------
Processing Monitoring
Category fee fee
------------------------------------------------------------------------
I............................................. $150 $ 50
II............................................ 225 75
III........................................... 575 250
IV............................................ 750 350
V............................................. Full actual costs.
------------------------------------------------------------------------
Proposed fee amounts. Since the 1986 study, the cost of doing
business has continued to rise. The Consumer Price Index, used to
adjust the communication site rent schedule, and the Implicit Price
Deflator Index, used to adjust other schedules, have risen about 35 and
30 percent respectively. BLM calculated the proposed fee schedule for
FLPMA applications and grants by adjusting the detailed study figures
upward by 30 percent and rounded up to the nearest $10. This is the
proposed fee schedule for processing and monitoring FLPMA right-of-way
applications and grants:
------------------------------------------------------------------------
Processing Monitoring
Category fee fee
------------------------------------------------------------------------
I............................................. $230 $ 80
II............................................ 390 130
III........................................... 750 230
IV............................................ Full reasonable costs
as required.
Master agreement.............................. As negotiated.
------------------------------------------------------------------------
BLM calculated the proposed fee schedule for MLA applications and
grants in the same manner. The proposed fee schedule for these
applications and grants is as follows:
------------------------------------------------------------------------
Processing Monitoring
Category fee fee
------------------------------------------------------------------------
I............................................. $200 $70
II............................................ 290 100
III........................................... 750 330
IV............................................ Full actual costs.
Master agreement.............................. As negotiated.
------------------------------------------------------------------------
BLM sampled a number of cases in 1995. The sampling tended to agree
with the adjusted 1986 study figures. Five Category I cases ranged from
$125 to $510 to process, an average of about $200. Fifteen cases in
Category II ranged from $82 to $700 to process, with an average of
about $390. Only one Category III case was sampled, and its processing
cost was $600. Performing another extensive field cost study, such as
was done in 1986, would not produce sufficient new data to justify its
costs. Adding a ``master agreement'' category may remove about half the
cases which currently fall into Categories I through III.
Annual fee adjustments. The regulations also propose adjusting the
fee schedule for the following calendar year based on the previous
year's change in the Implicit Price Deflator-Gross Domestic Product
(IPD-GDP). BLM will round up changes to the nearest dollar. Review of
other economic indices, such as the Consumer Price Index, discloses
that these do not reflect a sufficiently high labor intensiveness to be
used to adjust the cost recovery fee structure. We believe, however,
that the IPD-GDP more closely reflects the relationship of labor to
other costs and can be used as an adjustment factor. BLM proposes to
use this index,
[[Page 32110]]
measured second quarter to second quarter, to adjust the fixed cost
recovery fees annually. Under the proposed regulations, each year BLM
would revise the fees, make copies of the revised fee schedule
available in BLM offices before the beginning of the next calendar
year, and post the fee schedule on the BLM Home Page on the Internet,
http://www.blm.gov.
Rents for communication site rights-of-way would continue to use
the Consumer Price Index because the rents are based on the population
served. The CPI reflects changes in the urban economy more accurately
than the IPD-GPD does.
If BLM adopts the increased cost recovery fee schedule as proposed,
adjusted for the inflation rate, the fee schedule will be published in
the Federal Register as part of the preamble to the final rule. The
preamble would make clear that the fees would rise each year based on
changes in the IPD-GDP.
If you believe that the proposed cost recovery fee increases are
unreasonable, or not in the public interest, please provide your
rationale and any suggestions you may have for alternative methods of
charging reasonable processing and monitoring fees for FLPMA and MLA
right-of-way applications.
Assignments and renewals. (Proposed subpart 2807). BLM proposes to
use the category fee schedules as the basis for establishing and
recovering the costs of processing assignments and renewals. Currently,
the fee for assignments is $50, and there is no fee for renewals. BLM
proposes to determine the appropriate category based on the estimated
time to process each request. For example, if the estimated time to
process an assignment for a FLPMA right-of-way is no more than 24 work
hours, the cost recovery fee would be the fee for a Category I
application. BLM specifically requests your comments on whether to use
the proposed cost recovery categories for assignments and renewals. If
you oppose the change, please suggest an alternative method of
recovering costs for processing assignments and renewals.
Cost Exemptions and Reductions
Background. Two final rulemakings, one on January 10, 1985, and the
other on September 5, 1986, established BLM's current policies with
respect to cost recovery for MLA grants. These policies are based on
the 1973 amendments to the MLA, which require applicants for MLA
rights-of-way or temporary use permits to reimburse the United States
for all administrative and other costs involved in processing
applications and in monitoring, operating, maintaining, and terminating
the MLA grants. Therefore, cost exemptions and reductions are not
available for MLA rights-of-way, except for those state and local
governments that are exempt from cost recovery under the current
regulations at 43 CFR 2883.1-1(a)(2).
The final rule of July 8, 1987, described BLM's policies associated
with determining the processing and monitoring costs for FLPMA right-
of-way grants. The rule defined the terms ``actual costs,'' which are
the resources expended in processing a right-of-way application and
monitoring the construction, operation, maintenance, and termination of
the project and its facilities. Actual costs, less management overhead,
form the amount to which BLM applies the ``reasonability factors''
listed in section 304(b) of FLPMA. For all but complex projects
(Category V), the reasonability factors have little or no effect on
actual costs. The rulemaking also defined the reasonability factors:
``monetary value of the rights or privileges sought,'' ``public
benefits,'' ``efficiency to government processing,'' and ``other
factors.'' The ``other factors'' definition provides the means for BLM
State Directors to reduce actual processing costs based on a wide range
of special circumstances, including unique instances of public benefits
or services. These reductions generally fall under the broad category
of ``hardship,'' that is, paying full reasonable costs would create an
undue hardship on the applicant.
The rule also established, as a method of computing reasonable
costs, an alternative which represented one percent of construction
costs. This alternative was based on the practice of the state of New
York, which charged corporations a maximum fee of one-half of one
percent of their actual construction costs to process their right-of-
way applications for non-residential projects and a maximum of 2
percent of actual construction costs for residential projects. This fee
included the costs of preparing environmental impact statements and
other processing activities. Finally, the rule exempted federal
agencies and state and local governments and their agencies and
instrumentalities from paying processing and monitoring costs.
Automatic exemptions. BLM considered eliminating the exemptions for
federal, state, and local governments to pay processing and monitoring
costs established by the July 8, 1987, final rule. This exemption,
under the current regulations, does not apply to municipalities that
derive the majority of their revenues from user fees. We decided
against proposing to eliminate the exemption for state and local
governments for several reasons, including the fact that these entities
comprise less than 10 percent of all applicants and grant holders.
Because of their small numbers, eliminating the automatic exemption for
them would not significantly decrease BLM's revenues from cost
recovery. Municipalities that derive the majority of their revenues
from user fees would continue to pay processing and monitoring costs.
Currently, many federal agencies fund the processing of FLPMA
right-of-way applications affecting their lands. The amount they pay is
determined through negotiations. This process does not always produce
consistency across BLM organizational units. BLM proposes to achieve
consistency by assigning each federal project to a category. The
category designation will enable other federal agencies to determine
their costs in advance and will also reduce the administrative
paperwork involved in federal transactions.
Eliminating the one percent alternative. As mentioned previously,
the July 1987 final rule established the payment of up to one percent
of actual construction costs as an alternative method of paying the
reasonable costs of processing right-of-way applications and monitoring
the issued grants. The approach was viewed to have several benefits:
(1) efficiency to both the applicant and BLM by avoiding complex data
collection and by eliminating complex cost calculations, (2) providing
an incentive to BLM to stay under the one percent cost level in
processing and monitoring activities, and (3) giving a readily
available dollar value for establishing a reasonable level of actual
cost reimbursement. The current regulations contain this alternative at
43 CFR 2808.3-1(f).
Although this alternative seemed to have merit at the time, in
practice it has been used only once, in resolving a situation in Public
Service Commission v. Watt. BLM has not done an analyses of why
applicants have not used this approach and will not speculate on the
reasons. We are proposing to eliminate the one percent alternative. If
you believe that we should retain this alternative, please provide the
rationale for doing so in your comments.
``Other factors.'' Current regulations at 43 CFR 2808.5 list a
number of factors which BLM State Directors may use to reduce or waive
processing and monitoring costs. Although the preamble to the July 1987
rule did not specifically state so, the factors are a list
[[Page 32111]]
of what could be termed ``hardship'' situations. BLM considers that
``hardship'' is one of the ``other factors'' which section 304(b) of
FLPMA allows BLM to consider in determining reasonable costs. Examples
of hardship situations include: (1) the project requiring the right-of-
way grant could not be built because the processing and monitoring
costs would be excessive, (2) public health and safety could be
compromised if the right-of-way project were not built, and (3) the
public benefits of the project greatly outweigh the costs. The language
at proposed section 2804.18, paragraph (b), called ``Other
considerations,'' lists possible hardship situations.
The proposed regulations at section 2804.18 attempt to clarify that
the exemptions and reductions listed apply to all FLPMA processing and
monitoring cost categories, not just those having the highest costs
(Category IV applications). In preparing the financial plans required
as part of the information for Category IV applications (see proposed
sections 2804.16(a)(3) for FLPMA applications and 2884.12 for MLA
applications) and in negotiating cost recovery master agreements (see
proposed section 2804.17 for FLPMA applications and section 2884.13 for
MLA applications), you should identify what you expect BLM to pay for
and what you expect to pay for. FLPMA applicants should also identify
any hardship factors that they believe apply to their project. BLM will
consider these factors during negotiations over the final processing
and monitoring costs.
Federal agencies may not qualify for cost reductions under the
hardship factors. They may, however, qualify for reductions under the
reasonability criteria as proposed at section 2804.18.
The following sections describe other proposed changes to the
existing regulations that do not involve fees. The proposed changes
involve a new customer service standard for processing applications,
organizational matters, clarifications of policies relating to rents
for both linear and communication-site rights-of-way, a description of
how the proposed regulations are organized, and when you may appeal BLM
decisions.
Customer Service Standards
Executive Order 12862, ``Setting Customer Service Standards,''
requires federal agencies to provide a standard of customer service
equal to the best in the business. To accomplish this, Executive
agencies should identify the customers that they serve, post customer
service standards and measure results against them, provide customers
with choices in both sources of service and means of delivery and make
information, services and complaint systems easily accessible.
The right-of-way program is committed to providing its customers
with excellent, efficient service. Through a series of internal policy
directives, starting in December 1995, program staff and managers have
streamlined right-of-way application processing by: (1) encouraging
applicants to file applications by fax and to pay by credit cards, (2)
reiterating the processing times stated in Manual sections, (3)
allowing applicants for MLA rights-of-way to file as part of their
applications for a permit to drill, (4) reaching an understanding with
State Historic Preservation Officers as to how BLM will conduct
cultural surveys and the State Historic Preservation Officers will
review applications and recommend provisions to preserve the cultural
values of lands affected by potential rights-of-way, (5) sending
customer service cards to right-of-way customers and requesting that
the customers rate BLM's service in specific areas, and (6) modifying
the financial system to assure that processing and monitoring fees go
directly to the field office that generates the fee.
The proposed regulations at section 2804.20(c) would further assist
the customer service effort by providing applicants with written
notices of when they can expect BLM to process their applications if
processing the application will take longer than the estimated time
periods. This information should assist applicants and grant holders in
planning for constructing or changing their projects.
Hazardous Materials
The proposed regulations would contain language addressing the
storing, transporting, and using of hazardous materials on right-of-way
grants as they relate to the following statutes: the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42
U.S.C. 9601 et seq. (CERCLA); the Resource Conservation and Recovery
Act, 42 U.S.C. 6991 et seq. (RCRA); the Clean Water Act, 33 U.S.C. 1251
et seq.; the Oil Pollution Act, 33 U.S.C. 2701 et seq.; and the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
11001 et seq. CERCLA holds responsible parties liable for the costs of
cleaning up hazardous waste sites. RCRA sets minimum guidelines and
standards for manufacturing and disposal of hazardous and solid wastes.
The current regulations do not address hazardous materials. Because
of the importance of the safe use of rights-of-way and resource
protection, BLM decided to incorporate hazardous material provisions
into the proposed regulations. While most other BLM regulations do not
yet specifically address hazardous materials, BLM concluded that
addressing hazardous materials in the right-of-way regulations was a
suitable beginning. The proposed revisions include the following:
(1) Adding to the definitions section of the regulations at section
2801.5 several terms used in the acts: ``discharge,'' ``hazardous
material,'' and ``release;'' and
(2) Clarifying that there is no maximum limit for strict liability
for damages or injuries resulting from the actual or threatened
discharge or release of hazardous substances, as defined by CERCLA, at
section 2807.12.
These definitions and conditions would apply to part 2880 by cross
reference.
All the proposed changes follow the ``polluter pays'' principle. If
the grant holder is an innocent holder, he will still be held
responsible for all costs and clean up from an accident or the release
of hazardous substances. BLM believes that any other policy would shift
the liability from the holder onto the United States and would result
in less holder accountability.
We intend to add similar program-specific language to other
regulations as they are revised.
Organizational Matters
Regional offices. Utility and industry applicants have suggested
that BLM could shorten processing time for right-of-way applications if
we established one or more ``regional right-of-way offices'' solely for
processing applications involving cost recovery. BLM has not adopted
this approach in the proposed rule because establishing regional right-
of-way offices would fracture the existing interdisciplinary approach
to decisionmaking that BLM uses. Such offices would be understaffed, as
from time to time a variety of specialists are needed for advice on
proposed impacts or mitigation methods. Currently, BLM gets this
expertise from existing BLM offices where the specialists are
performing duties other than processing applications or monitoring
grants.
BLM is exploring the way that we process various applications. We
periodically look at ways to consolidate, simplify, and cut costs when
we process all types of applications. One possible way to cut costs and
maximize resources would be to have a single specialist do all field
examinations of a single site for which multiple
[[Page 32112]]
applications exist. For instance, when an oil and gas lessee needs
approval of an application for permit to drill and a right-of-way for a
road to the drill pad, a single specialist could visit the site and
gather the necessary data to serve the processing of both applications.
BLM welcomes any comments you may have on increasing our efficiency and
cutting the time for processing your applications.
Water power situations. Water power projects require a license from
the Federal Energy Regulatory Commission (FERC) under the Water Power
Act of 1920, as amended. If the project involves public lands, BLM must
also issue a right-of-way grant. There are some exceptions for
relicensing existing projects. FERC can collect costs incurred by it
and other Federal agencies, including BLM, from the water power
applicant or holder. This creates a potential double collection, where
both FERC and BLM could collect from the applicant/holder the costs of
a single project. To prevent this, BLM will only report to FERC those
processing and monitoring costs that are not associated with BLM
actions on the right-of-way application or grant. When a right-of-way
application or grant is not involved, BLM will report all of its costs
associated with a water power application or relicensing to FERC. The
language at proposed section 2804.24 reflects this policy.
Rents
Non-communication site rent payments. Section 504(g) of FLPMA
requires right-of-way grant holders to pay annually, and in advance,
the fair market value of their grant. This amount constitutes the
``rent'' for the grant. Originally, FLPMA allowed BLM to bill grant
holders for more than 1 year if the annual rent was less than $100.
Amendments in 1986 changed the provision to give private individuals
the option of paying annually or at some interval greater than 1 year
if their rent payments exceed $100 per year.
A March 1995 study by the Inspector General of the Department of
the Interior (IG) found that BLM had not established a cost-effective
system for billing annual rents. There was no minimum collection
amount, and BLM billed for all annual rents that exceeded $1 per year.
About 7,700 courtesy notices for bills of $34 or less were sent to
grant holders. The IG further noted that BLM annually sent over 14,000
bills to 21 grant holders. The IG recommended that BLM establish a
minimum rent collection amount and revise the right-of-way regulations
to provide for advance lump-sum payments covering more than 5 years
when the annual rent is less than $100 per year. Even so, a substantial
percentage of the bills for $34 or less represented 5 years' worth of
rent.
Based on the 1986 amendment to FLPMA and the IG's recommendations,
BLM proposes to modify the way that we bill right-of-way grant holders.
BLM must take steps to reduce the administrative workload that field
offices bear in billing grant holders annually for rents, collections
of rents, and proper depositing of the rents. Proposed section 2806.10
states that BLM may bill for rents annually or for periods of more than
1 year. Private individuals whose rent payments exceed $100 per year
may elect to make annual payments rather than lump sum payments.
Current policy requires advance rent payments in 5-year intervals if
the rent amount is less than $100. The proposed rule would change this
policy to allow BLM greater flexibility to address specific situations.
We invite suggestions and comments on how long the advance payment
period should be and what amount the annual rent payment should be to
trigger the advance or lump sum payment.
This proposed rule does not address either minimum rent amounts or
another IG recommendation, that of increasing the rent amounts on the
current linear rent schedule. A joint BLM-Forest Service team is
analyzing these recommendations and other concerns related to linear
rights-of-way.
We request your comments, however, on whether BLM should charge
fees for the late payment of rents. We are considering adding language
to the regulations which would allow us to collect fees for the late
payment of rents because (1) charging a fee for the late payment of
money owed is a normal business practice in the private sector, with
other federal agencies, and with other programs within BLM; (2) BLM is
incurring significant administrative charges for attempting to collect
late rent payments, without being able to recoup any of the
administrative costs; and (3) imposing a late charge may encourage
grant holders to make rent payments when they are due and avoid
possible termination of their grants. When BLM terminates a grant, we
may be able to recover rent payments owed under the Debt Collection
Improvement Act of 1996, 31 U.S.C. 3701 et seq., but cannot recover the
administrative costs associated with our prior collection efforts.
You can find regulatory provisions which allow for BLM's collecting
late payment charges at 43 CFR 2920.8(a)(3) and 43 CFR 4130.8-1(f). You
may review these provisions to assist you in making comments or
suggestions on whether BLM should charge a fee for late payment of
right-of-way rents.
If BLM decides to impose a late payment charge for delinquent
rents, we propose to base the charge on the method described at 43 CFR
4130.8-1(f). If we decide to use a different methodology, we will
describe the proposed method in a separate proposed rule.
Communication site rents. BLM proposes to amend the provisions for
communication site rents as follows:
Adding or revising various definitions related to rents
applicable to rights-of-way for communication sites;
Clarifying procedures promulgated in a final rule
published in November 1995 as to how BLM will apply the communication
site rent schedule in various circumstances; and
Adding a provision that explains how BLM determines the
``population served.'' We specifically invite your comments on whether
or not all rules concerning communication site management should be
segregated into a separate section of the right-of-way regulations. If
our analysis of the comments received on this proposed rule indicates
that a separate section for communication site management is
appropriate, BLM will adopt it in the final rule without any change in
the policies reflected in this proposed rule.
Background for changes to communication site right-of-way rents. On
November 13, 1995, BLM published regulations establishing a rental
schedule for communication uses in the Federal Register. The schedule
was the result of recommendations from the Radio and Television Use Fee
Advisory Committee and the General Accounting Office. BLM intended the
schedule to: (1) establish a fair and consistent approach for
determining rental payments, based upon using facilities at various
communication sites, (2) encourage tenants in a communication facility
to consolidate their separate authorizations into a single
authorization, and (3) reduce the number of disputes concerning rental
values. These changes reduced the costs of obtaining appraisals and
billing costs and minimized BLM involvement in managing the use and
occupancy of facilities.
The rent schedule bases rent on nine categories of communication
uses on BLM-managed lands and groups these uses into three major
categories: broadcast, non-broadcast and other. The ``broadcast''
category includes television, FM radio, rebroadcast devices, and cable
television. The ``non-
[[Page 32113]]
broadcast'' category includes commercial mobile radio service, cellular
telephone, private mobile communications, common carrier, and microwave
communications. The ``other'' category includes small, unobtrusive,
low-power uses serving small numbers of customers. Rents correlate with
the population of the community where the facility is located or that
it serves, or both. BLM uses the Rand McNally Commercial Atlas and
Marketing Guide to determine the population size of communities of
50,000 or more. For communities of less than 50,000 people, BLM uses
the category of use and the most recent Census Bureau census.
Before BLM established a schedule for communication site right-of-
way rentals, all such rents were determined through appraisal. All uses
within a facility generally required a separate right-of-way
authorization, and BLM appraised each use separately. Appraisals were
expensive and needed frequent updating to reflect changes in fair
market value. BLM administers approximately 3,200 rights-of-way for
communication sites, half of which pay no rent because they are exempt
under statutory and regulatory provisions. By implementing the rent
schedule, BLM no longer bills rent on an individual user basis. BLM now
requires only the facility owner to have an authorization for multiple
use occupancy and bases the rent on the highest value use in the
facility, plus 25 percent of the scheduled rent for each of the other
uses in, or associated with, the facility for which rent is to be paid.
The rent schedule identifies nine categories of use and nine population
strata. Uses serving larger populations generally have higher
associated rent values, as compared with those same uses serving
smaller populations.
BLM's rent schedule for rights-of-way devoted to communication uses
became effective on December 13, 1995. BLM decided not to implement the
new schedule until January 1, 1997, so that we could properly train
field personnel to apply it and could resolve any outstanding policy
issues. The Forest Service adopted a similar schedule through a policy
published in the Federal Register on October 27, 1995. Nineteen ninety-
seven was the first year of BLM's 5-year phase-in period for the new
schedule. During this year BLM received several questions from affected
grant holders about the schedule, but there were no protests filed that
resulted in appeals to IBLA. BLM and the Forest Service have jointly
developed policies and procedures to ensure that both agencies
consistently apply the schedule under similar circumstances, regardless
of which agency authorizes the communication use.
The changes contained in this proposed rule modify the regulatory
text to reflect what has been implemented through internal BLM and
Forest Service policy in the last 2 years. Unless otherwise specified,
these proposed regulatory revisions only clarify how BLM will apply the
schedule in various circumstances and will ensure that the schedule is
applied fairly and consistently for all uses and holders of
communication facilities located on BLM-managed lands. The proposed
revisions do not change the rental values assigned to the uses or
population strata of the original schedule.
The proposed regulations and policies are consistent with the
Telecommunications Act of 1996, 47 U.S.C. 332 note, and the various
General Services Administration government-wide policy bulletins on
determining the locations of telecommunications facilities, including
commercial antennas, on public lands.
New or revised definitions. (Section 2806.5). These definitions
would affect subpart 2806 only. BLM would:
Add new definitions for ``commercial purpose,''
``communication use rent schedule,'' ``facility manager,'' ``facility
owner,'' ``reselling,'' and ``site'; and
Revise the definitions for ``customer,'' ``tenant,'' and
``other communication uses'' category.
Adding a definition for ``commercial purpose'' would establish the
condition that must exist before BLM will charge rent. Adding a
definition for ``communication use rent schedule'' would identify all
the uses and population strata that are included in the rent schedule.
The proposed regulations use two new terms, ``facility manager''
and ``facility owner.'' A facility manager owns a communication
facility on public land, leases space to other tenants in the facility,
and has a communications authorization, usually a lease, but does not
have his or her own communications equipment in the facility. A
``facility owner'' owns a communication facility on public land, may or
may not lease space to other tenants in the facility, and has a
communications authorization, usually a lease, but has his or her own
communications equipment within the facility. The difference is that
the facility manager does not operate communication equipment for his
or her own use; the facility owner does. BLM is introducing these terms
because we charge rent only to those entities who hold authorizations.
Tenants and customers do not ordinarily pay rent to BLM.
Adding a definition for ``reselling'' is necessary, as reselling is
a critical component for determining whether an occupant is considered
a tenant, subject to rent, or a customer, not subject to rent.
Amending the definition of ``other communication uses, within the
overall definition of ``communication use rent schedule,'' to delete
the reference to passive reflectors as an example of an ``other
communication use'' is consistent with the intent of the November 13,
1995, preamble to the communication site regulations (60 FR 57068) and
with the Forest Service definition for this category. Amending the
definition of ``tenant'' to include the words ``or broadcast'' would
identify television or radio broadcast uses as a commercial activity
subject to rent when located in another's facility and would make it
consistent with the Forest Service definition of this term. Revising
the definition of ``customer'' to incorporate the changes for the
definition of ``tenant'' and to clarify the term would make it
consistent with the Forest Service definition of the term. Under the
proposed definition, BLM would exclude private and internal
communication uses located in another holder's facility, and not just
located in a commercial mobile radio service facility, for the purposes
of calculating rent.
Other changes proposed for applying the communication site use rent
schedule. (Proposed sections 2806.17 through 2806.27) BLM would remove
the statement at section 2803.1-2(d) that the rent schedule does not
apply to public telecommunication service operators providing public
television or radio broadcast services and who are granted a waiver or
reduction of rent. A similar statement appears, however, in proposed
section 2806.11. BLM may still grant reductions of rent for these uses
if the provisions of proposed section 2806.12 apply.
Section 2803.1-2(d)(2)(ii) now provides for a review of right-of-
way rents on a case-by-case basis 10 years after BLM issues the grants,
and no more than every 5 years after that, to determine whether rents
are appropriate. Such a request amounts to asking BLM to conduct an
appraisal, estimated to cost $2,000 each in 1995. If all holders were
to make such a request, right-of-way rental determinations for
communication uses would revert to the methods used before November
1995. This would greatly
[[Page 32114]]
increase costs (an estimated $3 million for the 1,500-plus
authorizations now subject to rent) and would negate the administrative
savings envisioned by using the new rent schedule. Proposed section
2806.17(a) directs BLM to review the rent schedule every 10 years to
ensure that the schedule reflects a rational fair market value estimate
and eliminates the provision that allows each holder to request one or
more reviews after 5 years.
Proposed sections 2806.17 through 2806.27 clarify how BLM would
apply the schedule in the various combinations of facility owners,
tenants, customers, and the types of uses and populations served by
these uses. These proposed sections would enable users and agency
personnel to fully understand how to apply the schedule, given the
varied circumstances that can exist. These provisions would not alter
any of the basic provisions of the current rental schedule. This
addition provides a basis for applying the communication use rent
schedule fairly and consistently by both BLM and the Forest Service.
One proposed change is to add the term ``site'' to the definitions
section at 2806.5 to clarify ``site'' and ``facility.'' These terms are
used throughout the proposed sections, particularly at proposed section
2806.19, How will BLM determine the rent for a single-use communication
facility? The term ``site'' is used to refer to the area, such as a
mountain top, which contains one or more communication facilities. The
term ``facility'' is used to refer to the authorized improvements
associated with a site, e.g., TV, radio, or cell phone antennae. A
single site may accommodate several facilities for a variety of
communication uses, some facilities serving metropolitan areas, such as
TV broadcast towers and antennae, and some serving local areas, such as
cellular phone antennae. The facilities located at a particular site
are there because the site allows the facilities to serve a particular
market or geographical area effectively.
Appeals section. The proposed regulations eliminate the existing
subpart on Appeals, subpart 2804, and propose to replace it with
references to the right of appeal at each point where you may appeal a
decision. If an appeal is authorized, the proposed rule references
``part 4.'' This proposed modification is meant only to improve the
organization of the rule. It is not intended to add or remove appeal
opportunities. Current regulations also contain references to the right
of appeal at each appealable decision point. BLM has issued proposed
regulations to revise and consolidate its appeals regulations at part
1840 and 1850 into a revised part 1840. (See 61 FR 54120 through 54141,
October 17, 1996.) If or when BLM promulgates revised appeal
regulations, this final revised rule will reflect them.
Reorganizing the Regulations
The proposed rule would reorganize the material and present it in
the order in which prospective applicants for rights-of-way across
public lands would need it. The proposed regulations also give
information about what is expected of right-of-way grant holders and
how BLM monitors the grants. This restructuring is meant to make the
regulations simpler to understand and is not meant to have any
substantive effect.
BLM proposes to adopt the preferred numbering system of the Office
of the Federal Register. The existing regulations indicate one section
as subordinate to another by using hyphens in the number. For example,
sections 2808.3-1 and 2808.3-2 are subordinate to section 2808.3. In
the proposed rule, sections are arranged sequentially, beginning with
the number ``0.'' For example, section 2804.10 is followed by
subordinate sections 2804.11, 2804.12, 2804.13, and so forth. In some
cases, these leading sections may serve only as main headings.
The following cross-reference table describes the major
organizational changes. Use the table as a guide to help you find where
provisions found in the current regulations appear, in either an
unchanged (except for style) or substantively revised form, in the
proposed regulations. Proposed new provisions and policy appear in the
text under both the GENERAL and SECTION-SPECIFIC DISCUSSIONS in the
preamble, not in the table that follows.
------------------------------------------------------------------------
Where is it now? Where would it go?
------------------------------------------------------------------------
Section 2800.0-1, Purpose.... Eliminated as redundant to material in
section 2801.7, What is the scope of
these regulations?
Section 2800.0-3, Authority.. Section eliminated. Authority appears in
introductory material at the beginning
of part 2800 under ``Authority''
heading.
Section 2800.0-5, Definitions Section changed and renumbered as section
2801.5, What definitions do I need to
know to understand these regulations?
Minor changes in definitions to reflect
plain language writing style.
Section 2800.0-7, Scope...... Text streamlined, reworded and renumbered
to appear in two sections: 2801.7, What
is the scope of these regulations? And
2801.8, Are there any rights-of-way
outside the scope of these regulations?
Section 2800.0-9, Information Text streamlined and moved to new section
collection. 2801.9, Does BLM have the authority to
ask me for the information required in
these regulations?
Section 2801.1-1, Nature of Text streamlined, reworded, and moved to
right-of-way interest. proposed section 2805.12, What rights
does the grant convey?, and 2805.13,
What rights does the United States
retain? References to temporary use
permits removed, as BLM proposes to
eliminate these instruments.
Section 2801.1-2, Reciprocal Text streamlined, reworded, and moved to
grants. proposed section 2805.13, What rights
does the United States retain?,
paragraph (d), as a potential condition
of issuing a grant.
Section 2801.2, Terms and Text streamlined, reworded, and moved to
conditions of grants. proposed section 2805.12, What rights
does the grant convey?, as follows:
(a)(1) to paragraph (c)(1); paragraph
(a)(2) to paragraph (c)(8); paragraph
(a)(3) to paragraph (c)(2); paragraph
(a)(4) to paragraph (c)(3); paragraph
(b)(1) to paragraph (c)(7)(i); paragraph
(b)(2) to paragraph (c)(7)(ii);
paragraph (b)(3) to paragraph
(c)(7)(iii); paragraph (b)(4) to
paragraph (c)(7)(iv); paragraph (b)(5)
to paragraph (c)(7)(v); and paragraph
(b)(6) to paragraph (c)(7)(vi).
Section 2801.3, Unauthorized Text streamlined and moved to proposed
use, occupancy, or subpart 2808, What do I need to know
development. about trespass?
Section 2801.4, Rights-of-way Text streamlined and moved to proposed
issued on or before October section 2801.7, What is the scope of
1, 1976. these regulations?
[[Page 32115]]
Section 2802.1, Text streamlined and moved to proposed
Preapplication activity. sections as follows: paragraph (a) to
2802.10, What lands are available for
FLPMA rights-of-way?; paragraph (b) to
proposed section 2804.13, Will BLM keep
my information confidential?; paragraph
(c) to proposed section 2804.14, Is
there a filing fee for my application?;
paragraph (d) to proposed section
2804.25, What can I do on the proposed
right-of-way while BLM is processing my
application?; and paragraph (e) to
proposed section 2804.10, What should I
do before I file my application?
Section 2802.2-1, Application Text streamlined and moved to proposed
filing. section 2804.11, Where do I file my
application?
Section 2802.2-2, Text streamlined, reworded, and moved to
Coordination of applications. proposed section 2804.12, What
information do I need to submit in my
application?, paragraph (b).
Section 2802.3, Application Text streamlined, reworded, and moved to
content. proposed section 2804.12, What
information do I need to submit in my
application?
Section 2802.4, Application Text streamlined, reworded and moved to
processing. proposed sections as follows: paragraph
(a) to proposed section 2804.21, Can BLM
reject my application?, for paragraphs
(1) through (5), and to proposed section
2804.20, How will BLM process my
application?, for the acknowledgment;
paragraph (b) eliminated because BLM
proposes to eliminate temporary use
permits and to replace them with short-
term right-of-way grants; paragraph (c)
to proposed section 2804.12, What
information do I need to submit in my
application?; paragraphs (d), (e) and
(h) to proposed section 2804.20, How
will BLM process my application?;
paragraph (f) to proposed section
2805.13, What rights does the United
States retain?, paragraph (e); and
paragraph (g) to proposed section
2805.11, When is the grant effective?
Section 2802.5, Special Paragraph (a) eliminated because the
applications procedures. grace period has expired; paragraph (b)
eliminated as redundant of text in other
parts of the regulations.
Section 2803.1-2, Rental..... Text streamlined and moved to proposed
subpart 2806, What information do I need
to know about rents for right-of-way
grants?, where there are separate
discussions of linear (sections 2806.14
through 2806.16, communication site
(2806.17 through 2806.27) and other
(2806.28) rents. Text also clarifies
treatment of different types of
communication sites, based on the
November 1995 regulations.
Section 2803.1-3, Competitive Text significantly streamlined and moved
bidding. to proposed section 2804.23, Do I always
have to submit an application for a
right-of-way to receive a grant?
Procedural detail removed as more
appropriate for internal agency guidance
and to allow greater flexibility in
using competitive bidding.
Section 2803.1-4, Bonding.... Text reworded and moved to proposed
section 2805.10, What rights does the
grant convey?, paragraph (c)(6).
Section 2803.1-5, Liability.. Text streamlined, reworded and moved as
follows: paragraph (a) to proposed
paragraph (a) of section 2807.12, For
what am I liable?; paragraph (b) to
proposed paragraph (b) of section
2807.12; paragraph (c) to proposed
paragraph (d) of section 2807.12;
paragraph (d) to proposed paragraph
(c)(6) of section 2807.12; paragraph (e)
to proposed paragraph (f) of section
2807.12; paragraph (f) to proposed
section 2807.13, What liabilities do
State and local governments have?;
paragraph (g) to proposed paragraph (c)
of section 2807.12; paragraph (h) to
proposed paragraph (f) of section
2807.12; and paragraph (i) to proposed
paragraph (e) of section 2807.12.
Section 2803.2, Holder Text streamlined, reworded and moved to
activity. proposed sections as follows: paragraph
(a) to proposed section 2807.10, When
can I start activities under my grant?;
and paragraph (b), (c) and (d) to
proposed section 2807.11, When must I
contact BLM?
Section 2803.3, Immediate Text streamlined, reworded and moved to
temporary suspension of proposed section 2805.17, Can BLM
activities. temporarily suspend my activities to
protect public health and safety and the
environment without providing an
administrative hearing?
Section 2803.4, Suspension Text streamlined, reworded, and moved as
and termination of right-of- follows: paragraphs (a), (b), (c) and
way grants. (d) to proposed section 2807.16, Can BLM
terminate or suspend my grant?;
paragraph (d) to proposed section
2807.17, How will I know that BLM
intends to suspend or terminate my
grant?, paragraph (a); and paragraph (e)
to proposed paragraph (c) of section
2807.16, Can BLM terminate or suspend my
grant?
Section 2803.1-4, Disposition Text streamlined, reworded and moved to
of improvements upon proposed section 2807.18, What happens
termination. to any improvements on my grant when it
terminates?
Section 2803.5, Change in Text streamlined, reworded, and moved to
Federal jurisdiction or proposed section 2807.14, What happens
disposal of lands. if BLM transfers management of the land
on which my grant is located to another
Federal agency or outside of public
ownership?
Section 2803.6-1, Amendments. Text streamlined, reworded, and moved to
proposed section 2807.19, When must I
amend my application or grant?
Section 2803.6-2, Amendments Text streamlined, reworded, and moved to
to existing railroad grants. proposed paragraph (c) of section
2807.19, When must I amend my grant?
Section 2803.6-3, Assignments Text streamlined, reworded, and moved to
proposed section 2807.20, May I assign
my grant?
Section 2803.6-4, Text streamlined, reworded, and moved to
Reimbursement of costs for proposed section 2807.21, What will BLM
assignments. charge for reviewing a request for
assignment?
Section 2803.6-5, Renewals of Text streamlined, reworded, and moved to
right-of-way grants and proposed section 2807.22, Can I renew my
temporary use permits. grant?
Section 2804.1, Appeals...... Subpart eliminated. Information about
actions which you may appeal appears in
the sections to which it applies.
Section 2806.1, Corridor Text streamlined and more simply worded.
designation. Material appears in renumbered section
2802.10, What lands are available for
right-of-way grants?
Section 2806.2, Designation Text streamlined and reworded. Material
criteria. appears in renumbered section 2802.11,
How does BLM designate corridors?
Section 2806.2-1, Procedures Text streamlined, reworded, and moved to
for designation. section 2802.10, What lands are
available for right-of-way grants?
[[Page 32116]]
Section 2807.1, Application Text streamlined, reworded, and moved to
filing. proposed section 2809.10, Can Federal
agencies get a right-of-way grant?
Section 2807.1-1, Document Text streamlined, reworded, and moved to
preparation. proposed section 2805.10, What does a
grant contain?
Section 2807.1-2, Reservation Text streamlined, reworded, and moved to
termination and suspension. proposed section 2807.16, Can BLM
terminate or suspend my grant?
Section 2808.1, General...... Text streamlined, reworded, and moved to
proposed section 2804.14, Is there a
filing fee for my application?,
paragraph (a).
Section 2808.2-1, Application Text streamlined, reworded, and moved to
categories. proposed section 2804.14, Is there a
filing fee for my application?,
paragraph (c).
Section 2808.2-2, Category Text streamlined, reworded, and moved to
determination. proposed section 2804.14, Is there a
filing fee for my application?,
paragraph (e) and (g).
Section 2808.3-1, Application Text streamlined, reworded, and moved to
fees. proposed sections as follows: paragraph
(a) to proposed section 2804.14, Is
there a filing fee for my application?,
paragraph (b); paragraph (b) to proposed
section 2804.14, paragraph (f).
Paragraphs (c), (d) and (e) to proposed
section 2804.16, How will BLM process my
Category IV application?; paragraph (f)
to proposed section 2804.18, Can BLM
reduce my reimbursement costs?,
paragraph (a)(2); paragraph (g) to
proposed section 2804.18, paragraph (e);
and paragraph (i) to proposed section
2804.18, paragraph (d).
Section 2803.3-2, Periodic Text streamlined, reworded, and moved to
advance payments. proposed sections as follows: paragraphs
(a) and (b) to proposed section 2804.16,
How will BLM process my Category IV
application?, paragraph (b); paragraph
(c) to proposed section 2804.14, Is a
filing fee for my application?,
paragraph (g); and paragraph (d)
eliminated, as this is redundant of
other sections, such as 2804.14.
Section 2803.3-3, Costs Text streamlined, reworded, and moved to
incurred for a withdrawn or proposed section 2804.22, Do I owe any
denied application. money if BLM rejects my application or I
withdraw my application?
Section 2803.3-4, Joint Text streamlined, reworded, and moved to
liability for payments. proposed section 2804.19, What happens
if there are two or more competing
applications for the same facility or
system?
Section 2808.4, Reimbursement Text streamlined, reworded, and moved to
of costs for monitoring. proposed section 2805.14, What are
monitoring fees?
Section 2808.5, Other cost Text streamlined, reworded, and moved to
considerations. proposed section 2804.18, Can BLM reduce
my reimbursement costs?
Section 2808.6, Action Text consolidated with that in current
pending decision and appeal. section 2808.5, reworded and moved to
proposed section 2804.18, Can BLM reduce
my reimbursement costs?
Section 2880.0-3, Authority.. Section eliminated. Material appears as
``Authority'' in the introductory
material at the beginning of part 2880.
Section 2880.0-5, Definitions Minor changes in definitions to reflect
plain language writing style. Definition
of ``public lands'' in proposed section
2801.5 replaced by definition of
``Federal lands'' in proposed section.
Section renumbered as 2881.5, What
definitions do I need to know to
understand these regulations?
Section 2880.0-7, Scope...... Text reworded into plain language and
appears in two proposed sections:
2881.7, What is the scope of these
regulations? And 2881.8, What grants are
not covered by these regulations?
Section 2881.1-1, Nature of Text streamlined, reworded, and moved to
right-of-way interest. proposed section 2885.11, What are the
terms and conditions of the grant or
permit? Cross references proposed
section 2805.10, for terms and
conditions in common with non-MLA rights-
of-way.
Section 2881.1-2, Nature of Same as entry above at section 2881.1-1.
temporary use permit.
Section 2881.1-3, Reservation Text streamlined and moved to proposed
of rights to the United section 2885.12, What are the terms and
States. conditions of the grant or permit?,
which cross references proposed section
2805.13, since many terms and conditions
are common to both types of rights-of-
way. Proposed section 2885.12 emphasizes
only those terms and conditions which
are MLA-specific.
Section 2881.2, Terms and Text streamlined and moved to proposed
conditions, interest granted. section 2885.12, What are the terms and
conditions of the grant or permit?
Section 2881.3, Unauthorized Text streamlined and moved to proposed
use, occupancy or subpart 2888, What general information
development. do I need to know about trespass?
Contains a cross reference to proposed
subpart 2808.
Section 2882.1, Text streamlined, reworded, and moved to
Preapplication activity. proposed sections as follows: paragraph
(a) to proposed section 2884.10, What
should I do before I file my
application?: paragraph (b) eliminated
as redundant of regulatory text
elsewhere, including subpart 2883, What
qualifications do I need to have to hold
an MLA grant or permit?; paragraph (c)
to proposed section 2884.12, Is there a
filing fee for my application?; and
paragraph (d) to proposed section
2884.22, What may I do on the proposed
right-of-way while BLM is processing my
application?
Section 2882.2-1, Application Text streamlined, reworded, and moved to
qualifications. proposed sections as follows: paragraphs
(a) and (b) to subpart 2803, What
qualifications do I need to have to hold
an MLA grant or permit?; and paragraph
(c) to proposed section 2884.16, What do
I file my application for an MLA grant
or permit?
Section 2882.2-2, Application Text streamlined, reworded, and moved to
filing. proposed section 2884.16, Where do I
file my application for an MLA grant or
permit?
Section 2882.2-3, Application Text streamlined, reworded, and moved to
content. proposed section 2884.11, What
information do I need to provide in my
application?
[[Page 32117]]
Section 2882.3, Application Text streamlined, reworded, and moved to
processing. proposed sections as follows: paragraphs
(a), (b), (f) and (g) to proposed
section 2884.18, How will BLM process my
application?; paragraph (c) to proposed
section 2884.11, Can BLM reject my
application?; paragraphs (d) and (h) to
proposed section 2884.19, Can BLM ask me
for additional information?; paragraph
(e) eliminated as redundant of other
text; paragraphs (i) and (j) to proposed
section 2884.23, When will BLM issue the
grant or permit?; paragraphs (k) and (l)
to proposed section 2885.10, When is the
MLA grant or permit effective?; and
paragraph (m) to proposed section
2885.11, What are the terms and
conditions of the grant or permit?
Section 2882.4, Interagency Text eliminated as redundant of other
agreements. text in other sections, such as proposed
sections 2884.10 and 2884.18.
Section 2883.1-1, Cost Text streamlined, reworded, and moved to
reimbursement. proposed section 2884.12, Is there a
filing fee for my application?
Section 2883.1-2, Rental Text streamlined, reworded, and moved to
payments. proposed section 2885.12, How much does
it cost to hold a grant or permit? Cross
references to proposed subpart 2806--
What information do I need to know about
rents for MLA right-of-way grants?
Section 2883.1-3, Bonding.... Text streamlined, reworded, and moved to
proposed section 2885.11, What are the
terms and conditions of the grant?, as a
condition of issuing the grant.
Section 2883.1-4, Liability.. Text streamlined, reworded, and moved to
proposed section 2886.15, For what am I
liable?, and proposed section 2885.13,
Who is liable for payments?
Section 2883.1-5, Common Text streamlined and incorporated as a
carriers. provision of the grant at proposed
section 2885.11, What are the terms and
conditions of the grant or permit?,
paragraph (c).
Section 2883.1-6, Export..... Text streamlined and incorporated as a
provision of the grant at proposed
section 2885.11, What are the terms and
conditions of the grant or permit?,
paragraph (b) on the terms and
conditions of use.
Section 2883.2, Holder Text streamlined, reworded, and moved to
activity. proposed sections as follows: paragraph
(a) to proposed section 2886.11, Who
regulates my activities?; paragraphs (b)
and (c) to proposed section 2886.13,
When must I contact BLM?; paragraphs
(d), (e) and (f) to proposed section
2887.10, What conditions require
amending a grant?
Section 2883.3, Construction Text streamlined, reworded, and moved to
procedures. proposed section 2886.10, When can I
start activities under my grant or
permit?
Section 2883.4, Operation and Text streamlined and consolidated with
maintenance. existing section 2883.3, Construction
procedures, into proposed section
2886.10, When can I start activities
under my grant or permit?
Section 2883.5, Immediate Text streamlined, reworded, and moved to
temporary suspension of proposed section 2886.18, When can BLM
activities. terminate or suspend my grant or permit?
Section 2883.6-1, Suspension Text streamlined, reworded, and moved to
and termination of permits. proposed section 2886.17, When can BLM
terminate or suspend temporary use
permits?, which cross references
proposed sections 2807.15 and 2807.16.
Section 2883.6-2, Suspension Section eliminated, as temporary use
and termination of temporary permits are covered in proposed section
use permits. 2886.17, When can BLM terminate or
suspend temporary use permits?
Section 2883.7, Change in Text streamlined, reworded, and moved to
jurisdiction or disposal of proposed section 2886.16, What happens
lands. if BLM transfers management of the land
on which my grant is located to another
agency or outside public ownership?
Section 2883.8, Restoration Text streamlined, reworded, and
of Federal lands. consolidated within proposed section
2885.11, What are the terms and
conditions of my grant or permit?, as a
provision of the grant or permit, cross
referenced to proposed subpart 2805--
What terms and conditions do grants
contain?
Section 2884.1, Appeals...... Section eliminated. Right of appeal noted
in text where appealable action is
discussed.
Section 2887.0-3, Authority.. Section eliminated. Act cited in
``Authority'' section as heading in the
introductory material before part 2880
listings begin.
------------------------------------------------------------------------
Additional reorganization may occur as a result of the public
comments received. The preamble to the final regulations will address
any additional reorganization of the regulatory text made as a result
of public comments.
Section-Specific Discussions
The material in this section describes proposed changes affecting a
single section and policies relating to the proposed changes. It also
describes new sections. Sections which consist entirely of language
rephrased from material in the current regulations without any other
changes are not discussed.
Part 2800
Section 2801.5, What definitions do I need to know to understand
these regulations? The discussions below pertain only to those
definitions proposed for change or proposed to be added.
The existing terms ``public service provided, ``cost incurred for
the benefit of general public interest,'' ``monetary value of the
rights and privileges sought,'' ``actual costs,'' ``management
overhead,'' and ``efficiency to Government processing,'' found at
section 2800.0-5, would be incorporated into section 2804.18, Can BLM
reduce my reimbursement costs?, as factors which BLM may consider in
determining whether or not to reduce the processing fee for all
categories of applications, including Category IV applications. The
terms ``road use, amortization and maintenance charges'' and ``written
demand'' would be removed because they are no longer used.
Three new terms, ``discharge,'' ``hazardous material,'' and
``release'' would be added to be consistent with the provisions of the
Clean Water Act and BLM's hazardous materials policies with respect to
the right-of-way program. BLM complies with these laws, but the current
regulations do not explicitly address their requirements. The terms
``discharge'' and ``release'' would have the meanings given at section
1321(a)(2) of the Clean Water Act and section 9601(22) of CERCLA,
respectively.
The new term ``hazardous material'' would cover the following
substances or materials:
[[Page 32118]]
(1) Any substance or material defined as a ``hazardous substance''
under CERCLA at 42 U.S.C. 9601(14),
(2) Any regulated substance in underground storage tanks, as
defined by the Resources Conservation and Recovery Act (RCRA) at 42
U.S.C. 6991 et seq.,
(3) ``Oil,'' as defined in the Clean Water Act at 33 U.S.C. 1321(a)
and the Oil Pollution Act at 33 U.S.C. 2701 et seq., and
(4) Other substances defined and regulated as ``hazardous'' by
applicable federal, state and local law.
BLM intends to use the term ``hazardous material,'' rather than
``hazardous substance,'' because the term is broader. Right-of-way
holders, including oil and gas pipeline companies, use, store or
transport various hazardous materials across public lands. BLM seeks to
protect the public lands from oil discharges and releases. The broad
definition also aligns with BLM's responsibility to minimize damage to
scenic and scientific values and fish and wildlife habitat, to protect
the environment from impacts resulting from issuing and using right-of-
way grants, and to protect the public lands from undue degradation.
The new term ``field examination'' defines one of the factors that
BLM will use to determine the category upon which to base processing
and monitoring costs. BLM proposes to base the definition on the number
of vehicles, rather than the number of people occupying the vehicles,
because we believe that measuring costs on the basis of trips will
encourage BLM to combine trips and use our expertise most efficiently.
You should compare the term ``public land'' at proposed section
2801.5 to the term ``federal land'' at proposed section 2881.5, What
definitions do I need to know to understand these regulations? The
lands available for right-of-way grants under FLPMA are different from
the lands available for grants and temporary use permits under the MLA.
Lands under BLM jurisdiction are called ``public lands'' for the
purposes of FLPMA. For the purposes of the MLA, the term ``federal
lands'' includes both lands under BLM jurisdiction and under the
jurisdiction of other federal agencies, state governments, and private
individuals (if the minerals were reserved to the United States.) Under
the MLA, BLM only issues grants on federal lands which are under the
jurisdiction of BLM or when a proposed use involves two or more other
federal agencies. Lands in the National Park Service System are
statutorily excluded from both MLA and FLPMA because they are
administered by the National Park Service and are generally not subject
to non-Park Service uses. Other lands excluded from right-of-way use
under both FLPMA and MLA are lands located on the Outer Continental
Shelf and those held in trust for Aleuts, Eskimos, and Indians.
The proposed regulations continue to define the terms ``right-of-
way'' and ``grant'' separately. The term ``right-of-way'' describes the
physical feature, the land, upon which the holder is exercising the
right to use or traverse the right-of-way. The term ``grant'' describes
the instrument (easement, lease, license, or permit) which gives the
holder authority to use or traverse the land for right-of-way purposes.
Although FLPMA uses the term ``right-of-way'' to describe both the land
and the instrument, in practice using the term in both ways has proven
confusing. The phrase ``authorizing the use of a right-of-way over,
upon, under or through public lands for construction, operation,
maintenance and termination of a project'' would be dropped from the
definition of ``right-of-way grant'' because it is redundant of
material found in the definition of the term ``right-of-way.'' The term
``grant'' does not imply the conveyance of the title.
The term ``temporary use permit'' would be removed and replaced by
a definition for ``temporary use.'' The term ``temporary use''
signifies BLM's intent to issue short-term grants issued under part
2800, when the use is of a temporary nature. We make this proposal
because, in practice, the same provisions apply to both use permits and
grants and because processing times for the two documents are similar.
The only difference between temporary use permits issued under part
2800 and grants is duration. The proposed change would also eliminate
confusion caused by using the term permit for both short-term grants
and permits for other uses authorized under part 2920. We are unable to
propose this change for rights-of-way issued under part 2880 because
the MLA specifically allows for temporary use permits. Therefore,
section 2881.5 retains a definition for ``temporary use permit.''
Section 2801.10, Severability. This new section would describe the
legal principle of ``severability'' and apply it to the regulations in
part 2800. Under severability, if any portion of these regulations were
found invalid as to a particular set of circumstances or particular
people, the remaining portions of the regulations would remain valid
and BLM could enforce them separately and legitimately. This principle
has always applied to the regulations but is stated here for
information and clarity.
Section 2802.10, What lands are available for right-of-way grants?
This section combines and retains the information found in the current
regulations at sections 2806.1, Corridor designation, and 2806.2-1,
Procedures for designation. It explains that the availability of land
for right-of-way use is tied to BLM's land-use planning process, which
may designate corridors and avoidance, exclusion and open areas.
Although BLM designates right-of-way corridors and issues grants within
these corridors to the maximum extent practical, it is not always
possible to restrict uses to designated corridors, in cases such as
rights-of-way connecting wells, residences, and buildings to existing
facilities.
New paragraph (c) suggests that you visit the BLM office nearest
you before you file an application for a right-of-way grant. During the
visit you can learn whether the land that you want to use is available,
what the qualifications are for holding a grant, what the application
requirements are and how long it may take BLM to process your request.
You can also learn if other federal and state agencies need to be
involved. (See also the discussion at proposed section 2804.10, What
should I do before I file my application?)
Section 2802.11, How does BLM designate corridors? This section
contains material currently found in the regulations at section 2806.2,
Designation criteria. The proposed rule would add two new criteria:
transportation and utility corridor studies developed by user groups
(paragraph (h)) and existing transportation and utility corridors that
are capable of accommodating additional compatible uses without further
review (paragraph (j)). Experience has shown that BLM managers use
these two factors, in addition to the others, in making decisions about
siting right-of-way corridors.
Subpart 2803, What qualifications must I meet to get a right-of-way
grant? The proposed regulations contain four new sections-- 2803.10,
Who can hold a grant?; 2803.11, Must I submit proof of my
qualifications with my application?; 2803.12, Can other people act on
my behalf?; and 2803.13, What happens to my grant if I die?--with
information about who may hold a grant. This information has not
appeared in the regulations at part 2800 since 1982, when BLM decided
to eliminate it and place it on the application form, SF-299. We
believe
[[Page 32119]]
that placing the qualifications information back in the regulations
will make it easier for individuals and groups to find information
about BLM's right-of-way program.
Section 2804.10, What should I do before I file my application?
This proposed section begins the completely revised subpart about
applying for grants. It contains a streamlined version of the material
currently found in section 2802.1, Preapplication activity, paragraphs
(a) and (e). BLM encourages anyone interested in obtaining a right-of-
way grant across public lands to visit the nearest BLM office to get
information about the right-of-way program, lands available for right-
of-way grants, and other factors affecting their applications. Visiting
BLM before filing your application may shorten the time that it takes
BLM to process your application and determine whether or not to issue a
grant. At this meeting, BLM may be able to provide you with an estimate
or informal determination of what it may cost to process your
application.
Section 2804.12, What information do I need to submit in my
application? Currently, this information is contained in several
subparts, including 2802 and 2808. BLM intends that this subpart
provide all the information that you may need to apply for a grant
issued under the provisions of FLPMA. The subpart presents the
necessary information in a sequence in which you might ask questions
about the application procedures.
The new language in this section would specify the form number of
the application, SF-299, and give a brief description of the
information that the form requires. This description is a condensed
version of the list of information in the current regulations at
section 2802.3, paragraph (a).
Section 2804.14, Is there a filing fee for my application? This
proposed section contains information from several sections of subpart
2808, including section 2808.1, General; 2808.2-1, Application
categories; 2808.2-2, Category determination; and 2808.3-1, Application
fees. The major changes contained in this section are discussed in the
``Cost Recovery Provisions'' section in the GENERAL DISCUSSION portion
of this preamble. These include: (1) Increasing application processing
and grant monitoring fees to reflect the reasonable costs of processing
and monitoring activities, (2) providing a mechanism to adjust these
fees based on changes in the ``Implicit Price Deflator-Gross Domestic
Product,'' (3) eliminating the automatic exemption from paying the
reasonable costs of processing applications and monitoring grants for
federal agencies, (4) eliminating the 1 per cent of construction costs
alternative to paying full reasonable processing costs; (5) reducing
the number of cost recovery categories for both FLPMA and MLA
applications; and (6) adding a new category, ``master agreement,'' to
cover multiple applications in a limited geographic area. Otherwise,
BLM proposes no policy changes except to reword the regulatory
provisions for clarity.
Section 2804.16, How will BLM process a Category IV application?
This new section provides information in one place about Category IV,
in which BLM recovers the ``full reasonable costs'' of processing
right-of-way grant applications under FLPMA. Currently, this
information is scattered throughout several sections of the
regulations, including 2808.2-1, Application categories; 2808.3-2,
Periodic advance payments; and 2808.4, Reimbursement of costs for
monitoring.
Section 2804.17, What is a master agreement and what does it
contain? This new section would give information about the proposed new
category called ``master agreements.'' As described in the ``Cost
Recovery Provisions'' section in the GENERAL DISCUSSION section of this
preamble, master agreements are optional but may be of use to
applicants or grant holders seeking multiple grants in a limited
geographical area. They are especially useful to developers of oil and
gas fields. These developers may need many grants to build access
roads, feeder lines, and pipelines to transport the product(s) from the
field. This section specifies what information master agreements must
contain.
Section 2804.18, Can BLM reduce my reimbursement costs? This
proposed section contains information about applying for a reduction of
processing and monitoring costs. The only policy changes from the
existing regulations are as follows: (1) The proposed section lists the
``reasonability'' criteria on which you may seek to reduce your
processing costs, and (2) the proposed section does not use the term
``waive.'' The term ``reduction'' as used in the proposed rule includes
a provision for a reduction to zero dollars. All other changes are to
increase clarity and your ease of finding and using the information
that you may need in order to seek a reduction of processing and
monitoring costs.
BLM believes that this provision needs to be clear, since we are
eliminating exemptions from processing costs for federal agencies
except for those exempted by statute. We welcome any comments that you
may have on ways to streamline the process for determining whether or
not we should grant your requests for reductions and on the types of
information needed to adjudicate such applications.
Section 2804.19, What happens if there are two or more competing
applications for the same facility or system? This new section
clarifies how BLM will assess processing costs in situations where
there is more than one applicant for a facility or system. This
discussion is separated by category because BLM expects that the first
three cost categories will not involve costs attributable to more than
one application.
Applicants for FLPMA Category IV applications are responsible for
all reasonable costs identifiable with their applications. For costs
that cannot be easily identified with a specific application, such as
the costs of preparing environmental impact statements, all applicants
will pay an equal share or a proportion agreed to in writing.
Section 2804.20, How will BLM process my application?, contains a
customer service standard at proposed paragraph (c). The standard
states that BLM will process your application for a right-of-way within
30 working days of receiving it if the application falls within the
criteria for Categories I through III and if BLM may categorically
exclude the action from environmental analysis or prepare an
environmental assessment for it. If BLM cannot process your application
within 60 working days, a BLM field official will notify you in writing
and give you an explanation for the delay and an estimated completion
date. If your application falls within the criteria for Category IV
application, a BLM field official will notify you in writing and give
you an estimated completion date. This standard is found in BLM Manual
Section 2801.35B1g2b(1) and is intended to make us more responsive to
right-of-way customers.
Section 2804.23, Do I always have to submit an application to
receive a right-of-way grant?, is an updated version of current section
2803.1-3, which describes in detail procedures for competitive leasing.
BLM proposes to update and streamline that section because it is seldom
used and contains guidance more appropriate for a Manual section or
handbook. The current regulation also restricts the use of competitive
bidding to site-type rights-of-way, and BLM wants to broaden the use of
competitive bidding to include other situations, such as rights-of-way
[[Page 32120]]
used for emerging technologies. The proposed regulation would broaden
competitive bidding to increase BLM's flexibility in using it for site-
specific situations.
Section 2805.10, What does a grant contain? This proposed section
contains material from the current section 2801.2, Terms and conditions
of interest granted, and new language concerning hazardous materials
and adjusting bond amounst. The new language about hazardous materials,
which appears as terms and conditions of use in paragraph (c), would
require grant holders to notify the appropriate authorities of actual
and threatened discharges or releases of hazardous materials, to handle
hazardous materials in a proper manner and to comply with all liability
and indemnification requirements and provisions. (See the discussion at
section 2807.10 of this preamble.) Because BLM believes that preventing
discharges and releases of hazardous materials into the environment is
a part of doing business, we propose to expand the language in this
section.
The new language concerning BLM's adjustment of bond amounts also
occurs in paragraph (c) of section 2805.10. Currently all grant holders
furnish a bond or other security to cover losses, damages, or injury to
human health, the environment, and property resulting from activities
on the right-of-way. The proposed provision allows BLM to decrease or
increase the amount of the bond to reflect changes in the risk
associated with changed conditions and the grant holder's record of
complying with the provisions of the grant.
Section 2805.12, What rights does the grant convey? This proposed
section contains material from current section 2801.1-1, Nature of
right-of-way interest, paragraphs (b) through (f) and (k), with no
proposed regulatory changes. This section describes the rights that the
grant gives you. They are only the rights expressly contained in the
grant and do not include any rights that the United States retains.
Your use of resources within the right-of-way is limited to project and
facility purposes but includes minor trimming, pruning, and clearing as
necessary. Your grant is limited to the activities necessary to build,
operate, maintain, and terminate the authorized project and facilities.
Section 2805.14, What are monitoring fees? and 2805.15, When do I
pay monitoring fees? The information about monitoring fees is included
in these two proposed sections in this subpart. Monitoring fees are
assessed when BLM issues the grant. Although not a term or condition of
the grant, payment of monitoring fees is a condition of obtaining the
grant. The language of proposed section 2805.14, paragraph (b), would
change if BLM decides to develop and administer monitoring fees and
categories separately from application processing fees. (See discussion
under ``Cost Recovery Provisions'' in the GENERAL DISCUSSION section of
this preamble.) If BLM decides to develop and administer monitoring
fees and categories separate from the processing fee categories, we
will repropose the regulations in this section and provide you with an
opportunity to comment on the proposed categories and fees only if we
do not adopt the proposal described in the ``Revised Category
Definitions'' section of the GENERAL DISCUSSION in this preamble.
Subpart 2806, What information do I need to know about rents for
right-of-way grants? For a discussion of the major policy changes to
the sections in this subpart, see the discussion of Rents in the
GENERAL DISCUSSION section of this preamble. All other changes proposed
are intended to improve the clarity and readability of the requirements
for paying rents under FLPMA grants, except for one proposed change.
This proposed change occurs at section 2806.11, Are there exceptions to
paying rents? This section describes the circumstances under which
there are exemptions from paying rents on grants. The Omnibus Parks and
Public Lands Management Act of 1996, which amended section 504(g) of
FLPMA, struck out the phrase ``financed pursuant to the Rural
Electrification Act of 1936, as amended, `` and replaced it with the
phrase ``eligible for financing pursuant to the Rural Electrification
Act of 1936, as amended, determined without regard to any application
requirement under that Act.'' This statutory change has caused some
large, for-profit utility grant holders to apply for rent reductions
under FLPMA.
In mid-1997 the Forest Service sought guidance from the Committee
on Natural Resources of the U.S. House of Representatives. The
Committee Chairman, Representative Don Young, responded by letter dated
October 1, 1997. In his letter, Mr. Young stated that the intent of the
statutory revision was to exempt all not-for-profit rural electric and
telephone cooperatives from paying rent on their grants, whether these
cooperatives had built their facilities with financing from the Rural
Utility Service or not. Mr. Young further stated that the Committee
believed that rural and electric cooperatives filled an essential need
by providing electric and telephone service in areas of difficult
terrain and low customer density. Based on this information, BLM
believes that the exemption from paying rents does not apply to all
utility holders, just those who can document their non-profit status as
defined in the Internal Revenue Code at section 501(c)(3).
BLM therefore proposes to amend the existing provision at section
2803.1-2(b)(1)(iii) to include non-profit electric and telephone
cooperatives that built facilities financed by or eligible for
financing from the Rural Utility Service. The revised text, at
paragraph (b) of proposed section 2806.11, would read: ``The facilities
constructed on the right-of-way were constructed with funds from the
Rural Electrification Act of 1936, as amended (REA), or are non-profit
rural electric or telephone cooperative facilities eligible for REA
financing; or are extensions of such facilities.''
Section 2806.14, What are the rent costs for linear rights-of-way?
would make one change to existing policy. Current policy states that
BLM will use the rent schedule for linear grants unless the grant meets
two criteria: the land value exceeds the area's value by at least a
factor of 10 and the expected rent is sufficient to warrant a separate
appraisal. Some linear uses of rights-of-way have a significant value
that is not related to land value. In these cases, the value comes from
the type of use. Because the criteria require both factors to be met
before BLM considers rent separately from the rent schedule, we must
currently use the rent schedule for these uses. Having to use the rent
schedule for these grants prevents us from collecting their fair market
value. If we could use other methods to determine rent for these
grants, we could collect fair market value, as required by FLPMA. We
therefore propose to separate the factors that we will use to determine
when not to use the linear rent schedule. See the language in the
current regulations at section 2803.1-2(c)(v)(A), and compare with the
proposed regulations at section 2806.14(a)(1).
Section 2807.12, For what am I liable?, contains the material in
the current regulations at section 2803.1-5, Liability. It contains new
language in two areas: (1) the maximum limit on the amount of damages
would rise from $1 million to $5 million, and (2) there would be no
maximum limitation on strict liability resulting from damages or
injuries caused by hazardous substances or as allowed by law. See the
discussion under ``Hazardous materials'' in the GENERAL DISCUSSION
section of this preamble.
[[Page 32121]]
Section 504(h) of FLPMA gives the Secretary of the Interior the
authority to promulgate regulations specifying the extent to which
right-of-way holders are liable to the United States for damages or
injuries resulting from occupying or using a right-of-way grant. The
provision further states that the regulation must include a maximum
limitation on damages comparable to the foreseeable risks and hazards
presented. Current regulations, promulgated in July 1980, set the limit
at $1 million. The proposed regulations would raise the limit to $5
million, owing to inflation and other factors.
The liability limit does not apply to damages or injuries resulting
from the discharge or release of hazardous substances as defined by
CERCLA of otherwise allowed by law. The Federal Court of Appeals in
United States v. Chromalloy American Corporation, 158 F.3d 345, 350
(5th Cir. 1998), recently cited CERCLA for the proposition that
``notwithstanding any other provision of law, a private party will
reimburse the United States for all costs incurred.'' The court held
that CERCLA establishes a federal action in strict liability that
allows administrators to recover damages quickly and does not place
limits on liability. CERCLA preempts the liability cap established by
FLPMA for hazardous substances only.
Eliminating the liability cap for hazardous substances also aligns
with BLM's policy of having the polluter pay. A grant holder is fully
liable for all clean-up and restoration costs, damages, fees, and
penalties assessed against the holder's storing or using hazardous
substances in developing, relinquishing, or using the right-of-way,
regardless of fault.
Section 2807.13, What liabilities do state and local governments
have? requires state and local governments or their agencies to furnish
a bond to protect the liability exposure of the United States from
claims by third parties.
Section 2807.20, May I assign my grant? contains the same customer
service standard for processing time as that of applications for
grants. This standard is adopted from BLM Manual Section
2801.35B1g2b(1) and estimates the processing time as 30 working days
for applications which do not require extensive administrative work. If
processing an application for assignment takes more than 60 days, BLM
will notify you in writing, explain the reason for the delay, and give
an estimated processing time.
Section 2807.21, What will BLM charge me to review a request for
assignment? BLM proposes to charge processing fees for assignments,
based on the category of the application, rather than the flat fee
currently charged. For this reason, the section contains a brief
statement of the way in which we will charge fees. The fee would be
charged based on the number of work hours involved in processing the
assignment. Generally, the work involves adjudicating the prospective
assignee's qualifications to hold the grant; visiting the project site
to determine the status of the project and whether or not operations
are in compliance with applicable statutes, regulations, and the terms
and conditions of the grant; and preparing the necessary legal
paperwork. BLM would estimate the work hours involved in these
activities, consult the schedule for the appropriate number of hours,
and charge accordingly. (See the discussion at the ``Assignments and
Renewals'' section under the GENERAL DISCUSSION in this preamble.)
Section 2807.22, Can I renew my grant? The proposed section
contains material from existing section 2803.6-5. Note that the
reference to ``temporary use permits'' has been eliminated because BLM
proposes to eliminate temporary use permits for rights-of-way issued
under FLPMA and replace them with short-term grants. The same customer
service standard for processing times would apply to applications for
renewal as to new applications.
Subpart 2808, What do I need to know about trespass? This proposed
subpart contains material currently found at Section 2801.3. The first
section, 2808.10, What is trespass?, briefly describes the term. The
next section, 2808.11, What will BLM do if it determines that I am in
trespass?, describes your liability if BLM determines that you are in
trespass. Liability includes monetary damages and rehabilitating,
restoring, and stabilizing any damaged areas. It also describes the
penalties that BLM may assess. Section 2808.12, May I receive a grant
if I am in trespass?, states that you should apply to BLM to determine
whether BLM will authorize your unauthorized use.
Part 2880
This proposed part describes provisions relating to grants issued
under the Mineral Leasing Act. Holders of these grants operate and
maintain oil and natural gas pipelines and related facilities which
have rights-of-way through public lands. This part summarizes or cross
references information found at part 2800 and highlights those
provisions which are peculiar to oil and natural gas pipeline systems
and facilities. BLM intends that the summary will provide readers with
enough information to determine whether they need to consult part 2800
for additional detail.
Section 2881.5, What definitions do I need to know to understand
these regulations? This proposed section starts a new part and contains
material relating to terms used in connection with grant holders whose
grants BLM issued under the terms of the MLA. These grant holders
operate and maintain oil and natural gas pipelines and related
facilities which use right-of-way corridors through public lands.
The proposed regulations in this section generally retain the
definitions found in the current regulations at section 2880.0-5. Major
differences between the definitions in proposed section 2800.5 and this
proposed section are the lands covered by the grant, ``federal lands,''
and terms related to the oil and gas resources and the pipeline
facilities for transporting them, that is, ``production facilities''
and ``related facilities.'' Other definitions should be identical,
however; and introductory language refers you to the definitions in
part 2800.
Section 2881.7, What is the scope of these regulations? The
definitions section defines the term ``production facilities.''
Paragraph (b) clarifies that the only facilities which require a grant
on an oil and gas lease are those that are both owned by a third party
and are downstream of storage tanks or a metering device.
Proposed Section 2881.9, Does BLM have the authority to ask me for
the information required in these regulations?, describes the
information collection requirements related to grants and temporary use
permits connected with oil and natural gas pipelines and their related
facilities. This would be a new section and would comply with the
Office of Management and Budget's guidelines concerning the reporting
requirements for regulations to comply with the provisions of the
Paperwork Reduction Act of 1995.
Section 2881.10, Severability. This new section is a counterpart to
proposed section 2801.1. It applies the legal principle of
``severability'' to the regulations in this part. The principle has
always been true of these regulations but would be stated here for
clarity and understanding.
Subpart 2882, What lands are available for MLA grants and permits?.
This proposed subpart is a summary of the information presented at
subpart 2802. It has no counterpart in the current regulations at part
2880. BLM
[[Page 32122]]
uses its planning process to make decisions about land uses and
restrictions on their use, including decisions on whether to allow
pipeline corridors through federal lands in particular locations.
Subpart 2883, What qualifications do I need to hold an MLA grant or
permit?, describes the qualifications that entities need in order to be
issued and to hold a grant or permit under the Mineral Leasing Act
(MLA). These qualifications are given in the MLA and repeated in the
current regulations at 43 CFR 2882.2-1. The proposed regulations make
no changes except for rewording the material into plainer language.
Section 2884.19, How will BLM process my application?, applies the
same customer service standard to processing applications for MLA
grants as for FLPMA grants. This standard states that, for Category I
through III applications, BLM will process your application within 30
working days of receiving it. If BLM cannot process the application
within 60 working days, a BLM field official will provide you with a
written explanation of the delay and an estimated completion time for
processing the application. If you have a Category IV application, BLM
will provide you with a written estimate of the estimated processing
time.
Subpart 2885, What are the terms and conditions of MLA right-of-way
grants and permits?. This subpart describes those terms and conditions
which are specific to MLA grants and permits. BLM is retaining the term
``temporary use permit'' for MLA rights-of-way because the statute
specifically refers to these instruments. Proposed section 2885.12,
What are the terms and conditions of the grant or permit? cross
references section 2805.12 for terms and conditions common to both
types of grants. Proposed paragraph (b) describes those conditions
specific to these types of grants and permits: restrictions on
exporting domestically produced crude oil and on pipeline diameters and
requirements to use the pipeline as a common carrier.
IV. Procedural Matters
The principal authors of this proposed rule are Ted Bingham,
Arizona State Office; Priscilla McLain, Oregon State Office; Ron
Montagna, Washington Office; and Bil Weigand, Idaho State Office, with
the assistance of staff from the Regulatory Affairs Group. The authors
considered the following requirements in preparing the proposed rule:
National Environmental Policy Act
BLM has prepared an environmental assessment (EA) and found that
the proposed rule would not constitute a major federal action
significantly affecting the quality of the human environment under
section 102(2)(C) of the National Environmental Policy Act of 1969, 42
U.S.C. 4332(2)(C). BLM has placed the EA and the Finding of No
Significant Impact (FONSI) on file in the BLM Administrative Record at
the address previously specified. BLM invites the public to review
these documents by contacting us at the address listed above (see
ADDRESSES) and suggests that anyone wishing to comment in response to
the EA and FONSI do so in accordance with the Written Comments section
above or contact us directly.
Paperwork Reduction Act
BLM has submitted an information collection package to the Office
of Management and Budget for its approval of the information
requirements contained in subparts 2802, 2803, 2805, 2806, 2882, 2883,
and 2884 of the proposed rule under the requirements of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. Proposed changes in the
regulations may increase processing and monitoring fees for all
applicants subject to cost recovery fees for grants and could increase
the number of applicants seeking a reduction of processing and
monitoring fees. BLM expects the public reporting burden of these
proposed regulations to be as follows: preparing Plans of Development,
40 hours per response; negotiating master agreements, 30 hours per
response; providing maps of projects, one-half hour per response;
providing detailed ``as built'' maps, 8-16 hours per response for
Category I through III applications and 120 hours per response for
Category IV applications; providing BLM with copies of certificates,
permits, and approvals from other agencies, one-half hour per response;
getting copies of location maps from state and local governments, one-
half hour per response; applying for processing cost reductions, 2.5
hours per response; and providing information about multiple tenants at
communication site grants, 1 hour per response. These estimates include
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information.
We specifically request your comments on: (1) whether the proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information will
have practical utility; (2) the accuracy of BLM's estimate of burden of
the proposed collection, including the validity of the methodology and
assumptions used; (3) ways to enhance the quality, utility and clarity
of the information to be collected; and (4) ways to minimize the burden
of the collection of information on those who are to respond, including
the use of appropriate automated, electronic, mechanical, or other
technological collection techniques or other forms of information
technology. BLM will receive and analyze any comments sent in response
to this notice and include them in preparing the final rule.
Send comments regarding this information collection, including
suggestions for reducing the burden, to: Office of Management and
Budget, Interior Desk Officer (1004-NEW) or (1004-0060), Office of
Information and Regulatory Affairs, Washington, D.C. 20503, and
Information Collection Clearance Officer (WO-630), Bureau of Land
Management, 1849 C St., N.W., Mail Stop 401 LS, Washington, D.C. 20240.
Regulatory Flexibility Act
Congress enacted the Regulatory Flexibility Act of 1980 (RFA), 5
U.S.C. 601, to ensure that government regulations do not unnecessarily
or disproportionately burden small entities. The RFA requires a
regulatory flexibility analysis if a rule would have a significant
economic impact, either beneficial or detrimental, on a substantial
number of small entities.
BLM has determined under the RFA that this proposed rule would not
have a significant impact on a substantial number of small entities.
Current data collection categories do not allow us to determine who
among the grant holders is a small business; therefore, we have no
accurate data on the number of small entities affected by these
regulations. The proposed processing and monitoring fees would increase
for all applicants and grant holders, including small businesses. This
fee increase may increase the number of applicants seeking reductions
of recoverable costs, including small businesses.
In the past, small entities may have qualified for reductions under
the criteria. Small businesses which would be adversely affected by the
increased processing and monitoring fees could apply for reductions on
a case-by-case basis; and, in those cases where they qualified, could
get them. Increases in the categories most likely to affect small
[[Page 32123]]
businesses--Categories I and II--are 83 percent and 30 percent
respectively (processing costs) and 60 percent and 73 percent
(monitoring costs) for FLPMA applications and 60 percent and 5 percent
(processing costs) and 280 percent and 200 percent (monitoring costs)
for MLA applications respectively. Even if, under the proposed rules,
small entities do not qualify for exemptions, the fee increases for the
categories for which they would most likely apply are the lowest
processing fees assessed: $230 and $390 (processing costs) and $80 and
$130 (monitoring costs) for FLPMA applications and $200 and $290
(processing costs) and $70 and $100 (monitoring costs) for MLA
applications.
BLM considered eliminating the current automatic exemptions from
paying FLPMA processing and monitoring costs for all governmental
entities--federal, state, and local--as a means of recovering more of
the costs or processing applications and monitoring issued grants.
Analyses of applicants and right-of-way holders indicate, however, that
state and local governments constitute in total less than 10 percent of
all current applicants. Based on economic return alone, eliminating the
automatic exemption for these entities is not warranted. Further, many
local governments that are affected by BLM regulations qualify as small
entities under the RFA. Eliminating the automatic exemption for local
governments could increase their operating costs by requiring them to
apply for a reduction of processing and monitoring costs without any
corresponding overall public benefit.
BLM therefore proposes to retain the automatic exemption for state
and local governments but to charge federal agencies for cost recovery
if those federal agencies are not exempted by law from paying
processing and monitoring fees. We propose to eliminate the automatic
exemption for federal agencies because many already pay these costs
through interagency agreements with BLM and because there would be
greater uniformity of charges to the federal agencies.
Unfunded Mandates Reform Act
The proposed rule will not result in any unfunded mandate to any
state, local or tribal government in the aggregate, or to the private
sector, of $100 million or more in any one year. The proposed
regulations would pose no additional burdens on these governmental
entities, as the exemptions from paying processing and monitoring fees
for state and local governments would remain, and so would the
procedures for processing applications and monitoring grants.
Executive Order 12612
The proposed rule will not have a substantial direct effect on
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. The elements which this rule proposes to
change--principally, increased processing and monitoring costs--do not
have sufficient federalism implications to warrant preparing a
federalism assessment.
Executive Order 12630
The proposed rule does not represent a government action capable of
interfering with constitutionally protected property rights. Section
2(a)(1) of EO 12630 specifically exempts actions abolishing regulations
or modifying regulations in a way that lessens interference with
private property uses from the definition of ``policies that have
takings implications.'' The proposed rule was written with the intent
not to increase the regulatory burden on the regulated public. The
regulations only apply to public and federal lands over which BLM has
jurisdiction and do not change the terms and conditions of existing
grants and temporary use permits. Therefore, the proposed rule will
impair no private property rights. The Department of the Interior has
determined that the rule would not cause a taking of private property,
or require further discussion of takings implications under this EO.
Executive Order 12866
The proposed rule would not cause economic impacts of $100 million
or more per year, does not propose any novel policy changes, cause
significant sectoral impacts, or conflict with any other regulations.
Although the proposed rule is not ``significant,'' as defined under EO
12866, the rule is important because it provides the public with
information about a needed and wanted service: the use of public lands
for right-of-way purposes, when there is no choice as to the provider,
BLM. At a maximum, the proposed changes have an economic impact of
approximately $12 million annually, as described in this section.
Section 304 of the Federal Land Policy and Management Act allows
the Secretary of the Interior to charge ``reasonable filing and service
fees and reasonable charges and commissions with respect to
applications and other documents relating to the public lands.''
Section 28(f) of the Mineral Leasing Act requires applicants for oil
and gas pipeline rights-of-way to reimburse the United States for the
administrative and other costs, i.e., ``actual costs,'' of monitoring
activities under their grants.
The estimated maximum increase in fees generated by the proposed
regulations is $2.7 million annually. Entities adversely affected by
these increases may qualify for fee reductions, in some cases to no
fees. Those entities already granted fee reductions will retain their
reductions for future applications. Those entities exempted by law from
paying processing and monitoring fees will continue to be exempted. For
those having to pay, the proposed processing fee increases range from 6
to 114 percent ($15 to $400), with an overall average of $148. The
proposed monitoring fee increases range from 60 to 313 percent ($30 to
$265), with an overall average of $81.
On a percentage basis, the monitoring fee increases proposed are
higher than the proposed processing fee increases. The higher
percentage increase results from several factors: (1) when BLM
established the current monitoring fees, it did not have accurate data
about the costs of constructing, operating, and terminating facilities
within right-of-way grants; and (2) the policy that BLM uses to charge
for monitoring fees does not reflect changes in resources present in
the right-of-way over time. For example, BLM's policy is that the
processing category of the application determines the category of the
monitoring fee. An application that required minimal processing time
might require considerably more time to monitor if an endangered
species moved into the grant area. Using the same processing and
monitoring fee categories would result in a revenue loss. We are
therefore requesting comments on whether to continue the practice of
having the processing category determine the monitoring fee category.
Statutory language in the Omnibus Parks and Land Management Act of
1996 could adversely affect the rent revenue by increasing the number
of facilities exempt from paying rent. Section 504(g) of the Federal
Land Policy and Management Act (FLPMA) specifies that rents for rights-
of-way are equivalent to the fair market value of the grant and that
the Secretary of the Interior may charge less rent to federal agencies,
state and local governments, and non-profit associations and
coporations not owned by profit-making associations, especially those
non-profit associations financed with funds from
[[Page 32124]]
the Rural Electrification Act of 1936, as amended (REA). The Omnibus
Act changed FLPMA's statutory language from ``financed pursuant to the
Rural Electrification Act of 1936, as amended,'' to ``eligible for
financing pursuant to the Rural Electrification Act of 1936, as
amended, determined without regard to any application requirement under
the Act.''
The impact of this change could range economically from minimal to
the loss of BLM's entire annual rental revenue, $9.5 million in fiscal
year 1998, depending on what ``eligible for financing pursuant to the
Rural Electrification Act'' means. Unlike processing and monitoring
fees, which return to the BLM offices administering the right-of-way
program, rent payments are deposited into the general revenues of the
U.S. Treasury. Their loss would deprive the federal government and the
general public of money which could be used for public purposes. BLM
has adopted the position of Chairman Don Young of the Committee on
Natural Resources on the meaning of the phrase ``eligible for REA
financing.'' Chairman Young stated in a letter to the U.S. Forest
Service that the intent of the language was to exempt all not-for-
profit rural electric and telephone cooperatives from paying rent on
their right-of-way grants, whether or not these cooperatives had built
their facilities with financing from the Rural Utility Service. (The
Rural Utility Service is the federal agency that implements the REA.)
Chairman Young did not intend that large, for-profit corporations,
which build facilities eligible for REA financing, be able to get rent
reductions. (See the preamble discussion at section 2806.11, Are there
exceptions to paying rents?, for a discussion of this point.)
Other proposed regulatory revisions clarify existing right-of-way
regulations pertaining to determining rents for communication site
rights-of-way but have no direct economic effects. The clarifications
do not propose new or novel policies relating to communication site
rights-of-way or increase the rent amounts.
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this proposed rule easier to understand, including answers to questions
such as the following: (1) Are the requirements in the proposed rule
clearly stated?; (2) Does the proposed rule contain technical language
or jargon that interferes with its clarity?; (3) Does the format of the
proposed rule (grouping and order of sections, use of headings,
paragraphing, etc.) aid or reduce its clarity?; (4) Would the rule be
easier to understand if it were divided into more but shorter sections?
(A ``section'' appears in bold type and is preceded by the symbol
``Sec. '' and a numbered heading; for instance, Sec. 2803.10, Who can
hold a grant?); and (5) Is the description of the proposed rule in the
``supplementary information'' section of this preamble helpful in
understanding the proposed rule? What else could we do to make the
proposed rule easier to understand?
Send a copy of any comments that concern how we could make this
proposed rule easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C St., NW, Washington, D.C.
20240. You may also e-mail the comments to: Execsec@ios.doi.gov.
Executive Order 12988
The Department of the Interior has determined that this rule meets
the applicable standards provided in section 3(a) and 3(b)(2) of the
order.
List of Subjects
43 CFR Part 2800
Communications, Electric power, Highways and roads, Penalties,
Public lands and rights-of-way, and Reporting and recordkeeping
requirements.
43 CFR Part 2880
Administrative practice and procedures, Common carriers, Pipelines,
Public lands rights-of-way, and Reporting and recordkeeping
requirements.
Dated: May 4, 1999.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management
For the reasons set out in the preamble and under the authority of
the Federal Land Policy and Management Act, 43 U.S.C. 1701 et seq.; the
Mineral Leasing Act of 1920, as amended, 30 U.S.C. 181 et seq.; and the
Secretary's enforcement powers, BLM proposes to revise parts 2800 and
2880 of Title 43 of the Code of Federal Regulations as follows:
1. Revise part 2800 to read as follows:
PART 2800--RIGHTS-OF-WAY, PRINCIPLES AND PROCEDURES
Subpart 2801--What General Information Do I Need To Know About the
Right-of-Way Program?
Sec.
2801.5 What definitions do I need to know to understand these
regulations?
2801.7 What is the scope of these regulations?
2801.8 Are any rights-of-way outside the scope of these
regulations?
2801.9 Does BLM have the authority to ask me for the information
required in these regulations?
2801.10 Severability
Subpart 2802--What Lands Are Available for Right-of-Way Grants?
2802.10 What lands are available for right-of-way grants?
2802.11 How does BLM designate corridors?
Subpart 2803--What Qualifications Must I Meet To Get a Right-of-Way
Grant?
2803.10 Who can hold a grant?
2803.11 Must I submit proof of qualifications with my application?
2803.12 Can other people act in my behalf?
2803.13 What happens to my grant if I die?
Subpart 2804--How Do I Apply for a Right-of-Way Grant?
2804.10 What should I do before I file my application?
2804.11 Where do I file my application?
2804.12 What information do I need to submit in my application?
2804.13 Will BLM keep my information confidential?
2804.14 Is there a filing fee for my application?
2804.15 Am I exempt from paying cost recovery charges?
2804.16 How will BLM process my Category IV application?
2804.17 What is a master agreement and what does it contain?
2804.18 Can BLM reduce my reimbursement costs?
2804.19 What happens if there are two or more competing
applications for the same facility or system?
2804.20 How will BLM process my application?
2804.21 Can BLM reject my application?
2804.22 Do I owe any money if BLM rejects my application or if I
withdraw my application?
2804.23 Do I always have to submit an application for a right-of-
way to receive a grant?
2804.24 Do I have to pay the costs of processing BLM rights-of-way
associated with Federal Energy Regulatory Commission (FERC)
licenses?
2804.25 What can I do on the proposed right-of-way while BLM is
processing my application?
Subpart 2805--What Terms and Conditions Do Grants Contain?
2805.10 What does a grant contain?
2805.11 When is the grant effective?
2805.12 What rights does the grant convey?
2805.13 What rights does the United States retain?
2805.14 What are monitoring fees?
2805.15 When do I pay monitoring costs?
[[Page 32125]]
Subpart 2806--What Information Do I Need To Know About Rents for Right-
of-Way Grants?
2806.5 What definitions do I need to know to understand these
regulations?
2806.10 Must I pay rent for using my right-of-way?
2806.11 Are there exceptions to paying rents?
2806.12 Can my rent be reduced?
2806.13 What happens if I default on my rent payment?
2806.14 What are the rent costs for linear rights-of-way?
2806.15 Does the linear rent schedule ever change?
2806.16 How will BLM calculate my rent for linear rights-of-way
covered by the schedule?
2806.17 What are the rent costs for communication facilities or
uses?
2806.18 How does BLM calculate rent for communication uses?
2806.19 How will BLM determine the rent for a single-use
communication facility?
2806.20 How will BLM calculate the rent for a multiple use
communication facility?
2806.21 How will BLM calculate rent for private mobile radio
service (PMRS), internal microwave and ``other'' category uses?
2806.22 How will BLM authorize and calculate rent for customers and
tenants who choose to have their own right-of-way facility to be
used in common with an existing right-of-way of the owner of a
communication facility that they use or occupy?
2806.23 How will BLM calculate rents as to ``shared facilities'' or
for multiple facilities that are under one authorization?
2806.24 How does BLM calculate rent for a facility manager use?
2806.25 How does BLM calculate rent for ancillary uses?
2806.26 How does BLM calculate rent for uses within federally owned
facilities?
2806.27 What happens if converting to the rent schedule causes a
$1,000 or more increase in my rent?
2806.28 What are the rent costs for other rights-of-way and uses?
Subpart 2807--What Can I do on the Right-of-Way Once BLM Issues the
Grant?
2807.10 When can I start activities under my grant?
2807.11 When must I contact BLM?
2807.12 For what am I liable?
2807.13 What liabilities do state and local governments have?
2807.14 What happens if BLM transfers management of the land on
which my grant is located to another federal agency or outside of
public ownership?
2807.15 Can BLM temporarily suspend my activities to protect public
health and safety or the environment without providing an
administrative hearing?
2807.16 Can BLM terminate or suspend my grant?
2807.17 How will I know that BLM intends to suspend or terminate my
grant?
2807.18 What happens to any improvements on my grant when it
terminates?
2807.19 When must I amend my application or grant?
2807.20 May I assign my grant?
2807.21 What will BLM charge to review a request for assignment?
2807.22 Can I renew my grant?
Subpart 2808-- What Do I Need To Know About Trespass?
2808.10 What is trespass?
2808.11 What will BLM do if it determines that I am in trespass?
2808.12 May my trespass use be authorized?
Subpart 2809--Are There any Special Requirements Relating to Grants
Issued to Federal Agencies?
2809.10 Can federal agencies get a right-of-way grant?
2809.11 What will the grant contain?
2809.12 Can BLM suspend or terminate the grant?
Authority: 43 U.S.C. 1733, 1734(b), 1740 and 1761--1762.
Subpart 2801--What General Information Do I Need To Know About the
Right-of-Way Program?
Sec. 2801.5 What definitions do I need to know to understand these
regulations?
As used in this part, the term:
(a) Act means the Federal Land Policy and Management Act of 1976,
43 U.S.C. 1701 et seq.
(b) Casual use means activities and practices which do not
ordinarily cause any appreciable disturbance or damage to the public
lands, resources, or improvements, and which do not require a right-of-
way grant under this title. Example: activities which do not involve
the use of explosives or heavy equipment or vehicle movement, except
over already established roads and trails.
(c) Designated right-of-way corridor means a linear or areal parcel
of land identified by law, Secretarial order, the land-use planning
process or other management decision, as being a preferred location for
existing and future rights-of-way and suitable to accommodate more than
one right-of-way.
(d) Discharge has the meaning found at 33 U.S.C. 1321(a)(2) of the
Clean Water Act.
(e) Facility means an improvement constructed or to be constructed
or used or to be used within a right-of-way grant. For purposes of
communication site rights-of-way or uses, facility means the building,
tower and/or other related incidental improvements authorized under
terms of the right-of-way grant or lease.
(f) Field examination generally means a one-day trip, in one
vehicle, from the office to the site of the right-of-way proposal,
regardless of the number of specialists traveling in the vehicle. When
operational efficiency dictates separate trips, BLM will include the
efficient use of hourly time required to verify or collect the data
needed to process the application, or monitor the grant.
(g) Grant means any authorization or instrument (easement, lease,
license, or permit) issued by BLM pursuant to Title V of the Federal
Land Policy and Management Act, 43 U.S.C. 1761 et seq., or the Mineral
Leasing Act, 30 U.S.C. 185.
(h) Hazardous material means:
(1) Any substance or material defined as hazardous under the
Comprehensive Environmental Response, Compensation, and Liability Act
at 42 U.S.C. 9601(14);
(2) Any regulated substance contained in or released from
underground storage tanks, as defined by the Resource Conservation and
Recovery Act at 42 U.S.C. 6991 et seq.;
(3) Oil, as defined by the Clean Water Act at 33 U.S.C. 1321(a) and
the Oil Pollution Act at 33 U.S.C. 2701 et seq.; or
(4) other substances defined and regulated as ``hazardous'' by
applicable federal, state, or local law.
(i) Holder means any entity with a right-of-way authorization from
BLM.
(j) Project means the transportation or other system which the
right-of-way authorizes.
(k) Public lands means any land or 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:
(1) Those lands located on the Outer Continental Shelf, and
(2) Lands held in trust for the benefit of Indians, Aleuts and
Eskimos.
(l) Release has the meaning found at 42 U.S.C. 9601(22) of the
Comprehensive Environmental Response, Compensation, and Liability Act.
(m) Right-of-way means the public lands authorized to be used or
occupied by a right-of-way grant.
(n) Temporary use means a short-term right-of-way grant that
authorizes a revocable, nonpossessory privilege to use specified public
lands in connection with constructing, operating, maintaining or
terminating an associated right-of-way project.
(o) Transportation and utility corridor means a parcel of land,
without fixed
[[Page 32126]]
limits or boundaries, that is used as the location for one or more
transportation or utility rights-of-way.
(p) Unnecessary and undue degradation means surface disturbance
that is greater than that which would occur when the same or a similar
activity is being done by a prudent person in a usual, customary, and
proficient manner that considers the effects of the activity on other
resources and land uses outside the area of the activity. This
disturbance may be either willful or nonwillful.
Sec. 2801.7 What is the scope of these regulations?
The regulations in this part apply to:
(a) Issuing, administering, amending, assigning, renewing, and
terminating right-of-way grants for necessary transportation or other
systems and facilities which require the use of public lands identified
in 43 U.S.C. 1761, and which are in the public interest;
(b) Federal agency applications for transporting oil, natural gas,
synthetic liquids, or gaseous fuels, and any refined products produced
from them; and
(c) Rights-of-way issued on or before October 21, 1976, under then
existing statutory authority, to the extent that these regulations do
not diminish or reduce any rights conferred by the grant or the statute
under which they were issued. Where there is a reduction, the grant or
enabling statute will apply instead of these regulations.
Sec. 2801.8 Are any rights-of-way outside the scope of these
regulations?
Yes. The regulations in this part do not apply to right-of-way
grants for:
(a) Federal Aid highways, for which Federal Highway Administration
procedures apply;
(b) Reciprocal and cost share road use agreements, for which
subpart 2812 of this chapter applies;
(c) Lands within wilderness areas, although some uses may be
authorized under parts 2920 and 8560 of this chapter; and
(d) Oil, natural gas, synthetic liquid or gaseous fuels, or any
refined product produced from these materials, unless applied for by
Federal agencies, for which part 2880 of this chapter applies.
Sec. 2801.9 Does BLM have the authority to ask me for the information
required in these regulations?
(a) Yes. The Office of Management and Budget has approved the
information collection requirements contained in Part 2800 under 44
U.S.C. 3507 and has assigned them clearance numbers of 1004-0060 (for
Form SF-299) and 1004-______ for the remainder of the requirements. BLM
uses this information to determine if using the public lands for right-
of-way grants is appropriate. You must respond to obtain a benefit.
(b) BLM estimates that the public reporting burden for this
information is as follows: 2 hours per response to fill out Form SF-
299; 16 hours per response to prepare Plans of Development; 30 hours
per response to negotiate master agreements; one-half hour per response
to prepare a project map; one-half hour per response to supply BLM with
copies of approved certificates and permits from other agencies and
location maps from state and local governments; 2.5 hours per response
to apply for cost reductions; and one hour per response to supply
information about tenants at multiple use communication sites. These
estimates include the time for reviewing instruction, searching
existing data sources, gathering and maintaining the data needed and
completing the collection of information.
(c) Send comments regarding this burden estimate or any other
aspect of this collection to the Information Collection Clearance
Officer, Bureau of Land Management, 1849 C St., N.W., Mail Stop 401 LS,
Washington, D. C. 20240.
Sec. 2801.10 Severability.
If any provisions of the rules in this part or their applicability
to any person or circumstances are held invalid, the remainder of these
rules and their applicability to other people or circumstances shall
not be affected.
Subpart 2802--What Lands Are Available for FLPMA Rights-of-Way?
Sec. 2802.10 What lands are available for FLPMA rights-of-way?
(a) BLM may grant new rights-of-way on lands under its
jurisdiction, except where they are specifically excluded or restricted
by statute, regulation, planning, environmental, or other resource
concerns.
(b) BLM may require common use of a right-of-way and may require,
to the extent practical, location of new rights-of-way within existing
or designated corridors. BLM designates corridors, as well as exclusion
or avoidance areas, through the land-use planning process described at
part 1610 of this chapter, and informs the public of designated
corridors by appropriate means.
(c) You should contact the BLM office nearest to you to determine
whether or not the land you want to use is available and to begin
discussions about any application you may need to file.
Sec. 2802.11 How does BLM designate corridors?
BLM determines the locations and boundaries of right-of-way
corridors after reviewing:
(a) Federal, state and local land-use plans, and applicable federal
and state laws;
(b) Environmental impacts on natural and cultural resources;
(c) Physical effects and constraints on placing corridors due to
geology, hydrology, meteorology, soil, or land forms;
(d) Costs of construction, operation and maintenance and costs of
modifying or relocating existing facilities in a proposed corridor,
i.e., the economic efficiency of placing a right-of-way corridor;
(e) Risks to national security;
(f) Potential health and safety hazards imposed on the public by
facilities or activities located within the right-of-way corridor;
(g) Social and economic impacts of the corridor on public land
users, adjacent landowners, and other groups or individuals;
(h) Transportation and utility corridor studies developed by user
groups;
(i) Engineering and technological compatibility of proposed and
existing facilities; and
(j) Existing transportation and utility corridors that are capable
of accommodating additional compatible uses without further review.
Subpart 2803--What Qualifications Must I Meet To Get a Right-of-Way
Grant?
Sec. 2803.10 Who can hold a grant?
You may hold a grant if you are an individual, group, association,
corporation, partnership, or similar entity and if you:
(a) Are legally capable of holding an interest in real estate, and
(b) Can show that you are economically and technically capable of
constructing, operating, and maintaining the proposed facilities.
Sec. 2803.11 Must I submit proof of my qualifications with my
application?
Yes. If you are a partnership, corporation, association, or other
legal entity, you must submit:
(a) Copies of the formal documents creating the relationship, such
as papers of incorporation, and
(b) Evidence that the party signing the application has the
authority to bind the applicant.
[[Page 32127]]
Sec. 2803.12 Can other people act on my behalf?
Only to the extent that you have formally, in writing, and legally
given the person authority to do so.
Sec. 2803.13 What happens to my grant if I die?
It depends on the situation. If your grant contains a provision for
this situation, the grant provision applies. Otherwise, the new owner
(heir) must apply to BLM for an assignment of the grant, and BLM must
approve the assignment. (See Sec. 2807.19)
Subpart 2804--How Do I Apply for a Right-of-Way Grant?
Sec. 2804.10 What should I do before I file my application?
Before filing an application with BLM, you are strongly encouraged
to visit or telephone the BLM field office having jurisdiction over the
lands affected by your application to identify potential constraints,
determine whether or not the lands are located within a designated or
existing right-of-way corridor and tentatively schedule the processing
of your application. BLM may share this information with federal,
state, and local government agencies to ensure that these agencies are
aware of any authorizations you may need from them and that effective
coordinated planning is initiated as soon as possible.
Sec. 2804.11 Where do I file my application?
(a) File the application for a right-of-way grant in the BLM field
office having jurisdiction over the lands affected by your application.
(b) If your application affects more than one BLM administrative
unit, you may file at any BLM office having jurisdiction over any part
of the project. BLM will notify you where to direct subsequent
communications.
Sec. 2804.12 What information do I need to submit in my application?
(a) File your application on Form SF-299, available from any BLM
office, and fill in the required information. On the form, give your
name and address and the name and address of any authorized agent and
completely describe the project, including:
(1) The scope of the facilities;
(2) The estimated schedule for constructing and maintaining the
project;
(3) The estimated life of the project and the construction and
reclamation techniques proposed;
(4) A map of the project, showing its approximate location and
existing improvements adjacent to the proposal;
(5) A statement of your financial and technical capability to
construct, operate, maintain, and terminate the project;
(6) Any plans, contracts, or agreements concerning your use of the
right-of-way that might affect competition; and
(7) Your certification that you are of legal age and authorized to
do business in the State and that you have submitted correct
information to the best of your knowledge.
(b) If you are a business entity, you must disclose the following
information:
(1) The name and address of each participant in the business,
(2) The name and address of each shareholder owning 3 percent or
more of the voting shares of the business,
(3) The name and address of each affiliate of the business,
(4) The number of shares and the percentage of any class of voting
stock of any affiliate controlled by the entity, and
(5) The number of shares and the percentage of any class of voting
stock of any affiliate that controls the entity.
(c) BLM may require you to submit additional information at any
time while processing your application.
(d) If you are a federal oil and gas lessee or operator, you may
include your right-of-way needs with your application for permit to
drill or other sundry notice required under part 3100 of this title.
(e) If you are filing with another federal agency for a license,
certificate of public convenience and necessity, or other authorization
for a project involving a right-of-way on public lands, simultaneously
file an application with BLM for a grant. Include a copy or reference
all of the information you have filed with the other federal agency.
Sec. 2804.13 Will BLM keep my information confidential?
BLM will keep any information that you mark as ``confidential'' or
``proprietary'' confidential to the extent allowed under the Freedom of
Information Act (5 U.S.C. 552).
Sec. 2804.14 Is there a filing fee for my application?
(a) Yes. Unless you apply for and receive a reduction (see
Sec. 2804.18 of this subpart) or are exempt under Sec. 2804.15 of this
subpart, you must reimburse BLM for the reasonable costs of processing
your application before BLM incurs them. These costs are not refundable
and are based on an estimate of the amount of work that BLM must do to
process your application.
(b) Processing costs are based on categories, defined as follows:
(1) Category I. Either BLM has on hand or you supply the data
necessary to process your application; neither a land-use plan
amendment nor a field examination is required; and estimated processing
time is no more than 24 work hours for all BLM personnel involved in
the application review. Cost: Refer to the FLPMA fee schedule,
available from any BLM field office.
(2) Category II. Same as I, plus one field examination is needed to
verify existing data; and the estimated processing time, including the
time required to conduct the field exam, falls between 25 and 36 work
hours for all BLM personnel involved in the application review. Cost:
Refer to the FLPMA fee schedule, available from any BLM field office.
(3) Category III. Same as I, plus two field examinations are needed
to verify existing data; and the estimated processing time, including
the time required to conduct the field exams, falls between 37 and 50
work hours for all BLM personnel involved in the application review.
Cost: Refer to the FLPMA fee schedule, available from any BLM field
office.
(4) Category IV. Original data must be collected; a plan amendment
may be needed; two or more field examinations are needed; and estimated
processing time, including the time required for the field exams, is
more than 50 work hours for all BLM personnel involved in the
application review. Cost: Full reasonable costs.
(5) Master agreement. Instead of one of categories I through IV,
you may enter into an agreement with BLM to fully reimburse BLM for all
reasonable processing costs. The agreement should be written to include
any applications you may subsequently file within the same area.
(c) The cost for the first three categories is contained in a
schedule maintained by BLM. BLM updates these schedules each calendar
year, based on the previous year's change in the Implicit Price
Deflator-Gross Domestic Product, as measured second quarter to second
quarter. BLM will round these changes up to the nearest dollar. You may
obtain a copy of the revised schedule from any BLM State or field
office or by writing: Director, BLM, 1849 C St., N.W., Mail Stop
1000LS, Washington, D.C. 20240. BLM will post the schedule on the BLM
Homepage on the Internet, http://www.blm.gov.
(d) After an initial review of your application, BLM will notify
you of the category into which your application fits; you must submit
the payment
[[Page 32128]]
before BLM begins processing your application. For Category IV and
master agreement applications, see Sec. 2804.16(b) of this subpart.
Your signature on a cost recovery master agreement constitutes your
agreement with the category decision. If you disagree with the category
that BLM has determined for your application, you may appeal the
decision to the Interior Board of Land Appeals under part 4 of this
title.
(1) If you appeal a Category I through III determination, BLM will
process your application while the appeal is pending, if you have
submitted the processing fee. You will get a refund or adjustment of
your application fee upon resolution of the appeal, if IBLA finds in
your favor.
(2) If you appeal a Category IV determination, BLM will not process
your application further until the appeal is resolved.
(e) In processing your application, BLM may determine at any time
that the application requires preparing an environmental impact
statement. BLM will then send you a decision changing your cost
recovery category to Category IV. You may appeal the decision under
part 4 of this title. BLM will make no other changes in category
determination.
Sec. 2804.15 Am I exempt from paying cost recovery charges?
You are exempt from paying processing and monitoring fees only if:
(a) You are a state or local government or an agency of such a
government, when BLM issues the grant for governmental purposes
benefitting the general public. If your principal source of revenue
results from charges you levy on customers for services similar to
those of a profit-making corporation or business, you are not exempt;
or
(b) You participate in a cost-share road or reciprocal right-of-way
agreement.
Sec. 2804.16 How will BLM process my Category IV application?
(a) BLM will:
(1) Determine the issues to be analyzed under NEPA;
(2) Prepare a preliminary work plan;
(3) Develop a preliminary financial plan, which estimates the
reasonable cost of processing your application;
(4) Discuss with you the preliminary plans and data, the
availability of funds, your options for the timing of paying
reimbursable costs and what financial information you need to submit.
You may conduct the studies that BLM needs to process your application,
but you must do the work to BLM standards. BLM will make the final
determinations and conclusions arising from the studies; and
(5) Develop the final scoping, work and financial plan which
reflects any work you have agreed to do. BLM will also complete the
final estimates of the amount of the costs you will need to reimburse,
including any reduction granted to you.
(b) BLM will periodically estimate processing costs for a specific
work period and notify you of the amount due. If your payment exceeds
the costs that BLM incurred for the period, BLM will either adjust the
next billing to reflect the excess or refund you the excess under the
provisions of 43 U.S.C. 1734.
Sec. 2804.17 What is a cost recovery master agreement and what does it
contain?
(a) If your proposal involves a project that would require multiple
approvals from BLM, you may want to enter into a cost recovery master
agreement.
(b) For BLM to approve the agreement, its contents must:
(1) Describe the geographical area covered by the agreement and the
scope of the activity planned;
(2) Include a work plan, updated periodically as appropriate, and
approved by you and BLM;
(3) Contain a preliminary cost estimate for processing the
application and completing the project;
(4) Specify that you will be bound by all regulations otherwise
applicable to a Category IV determination;
(5) Describe the method of periodic billing, payment and auditing;
(6) State whether the agreement will bind future applications in
the same geographic area that are not part of the same project;
(7) Explain how monitoring will be performed and how monitoring
costs will be recovered;
(8) Contain specific conditions for terminating the agreement; and
(9) Contain any other information that BLM needs to process the
application.
(c) If you sign a master agreement, you waive your right to request
a reduction of cost reimbursement charges. (See Sec. 2804.18.)
Sec. 2804.18 Can BLM reduce my reimbursement costs?
Yes, in limited circumstances. (See paragraphs (a) and (b) of this
section.) You may submit a written request for reduction of the
processing costs to the BLM field office having jurisdiction over the
lands covered by your application. Submitting your reduction request
with the application will expedite its handling. BLM may require you to
submit additional information needed to support your request. While we
consider your written request, BLM will not process your application.
(a) Category IV Applications, Reasonability. The State Director
will apply the reasonability criteria of FLPMA, 43 U.S.C. 1734(b), in
determining the amount you owe. You may submit your analysis of the
following information, if you believe one or more of the criteria
apply:
(1) Reasonable costs to BLM of processing a right-of-way
application and of monitoring construction, operation and termination
of a facility authorized by the right-of-way grant;
(2) Monetary value of the rights and privileges you seek, that is,
the cost of providing the end result through the next least costly
method;
(3) Costs incurred for the benefit of the general public interest,
that is, the costs for studies and data collection that have value to
the United States or the general public apart from processing the
application;
(4) BLM's ability to process an application with maximum efficiency
and minimum waste and effort; and
(5) Any tangible improvements, such as roads, trails and recreation
facilities, with significant public value that are expected in
connection with constructing and operating the project.
(b) Other considerations. The State Director may, at his or her
discretion, reduce your payment of reimbursable costs in any category
for any of the reasons listed in this paragraph. You may submit
information showing how your situation meets one or more of these
factors:
(1) Hardship conditions, that is, payment of all reasonable costs
would:
(i) Result in financial hardship to your small business, and you
would receive little value from your grant as compared to the costs of
processing your application, or
(ii) Create such financial hardship so as to prevent your use and
enjoyment of your private right-of-way for a non-commercial purpose.
(2) The costs of processing the application grossly exceed the
costs of constructing the project;
(3) A major portion of the processing costs results from issues not
related to the actual right-of-way grant;
(4) You are a non-profit organization, corporation, or association
which is not controlled by or a subsidiary of a profit-making
enterprise, and
(i) The studies undertaken in connection with the processing of the
application have a public benefit, or
(ii) The facility or project will provide a benefit or special
service to the general public or to a program of the Secretary;
[[Page 32129]]
(5) You need a right-of-way to construct a facility to prevent or
mitigate damages to any lands or property or to mitigate hazards or
danger to public health and safety resulting from an act of God, an act
of war or negligence of the United States;
(6) You have a grant and need to relocate a facility on it to an
area outside the existing grant to comply with public health and safety
and environmental protection laws and regulations which were not in
effect at the time your original grant was issued;
(7) You have a grant and need to secure a new grant to relocate
facilities which have to be moved because a federal agency or federally
funded project needs the lands, if the United States does not refund
costs associated with your relocation; or
(8) For whatever other reason, collecting processing fees would be
inconsistent with prudent and appropriate management of public lands
and with your equitable interests.
(c) Action on request. BLM will notify you in writing of what you
owe after considering your analysis.
(1) If you disagree with BLM's determination, you may appeal it
under part 4 of this title. BLM will take no action on your application
while the appeal is pending.
(2) If BLM reduces the cost reimbursement, we will determine the
actual amount of the reduction and adjust your bills accordingly.
(d) Restriction on reduction. If no funds are available to process
your application, BLM may not process your application until funds are
available.
Sec. 2804.19 What happens if there are two or more competing
applications for the same facility or system?
If this happens,
(a) Category I through III: You must reimburse BLM for processing
costs as if the other application or applications had not been filed.
(b) Category IV: You are responsible for the costs identified with
your application. If BLM cannot readily separate costs, such as costs
associated with preparing environmental analyses, you and competing
applicants must pay an equal share or a proportion agreed to in writing
among all applicants and BLM. If you agree to share the cost of
processing your application and that of a competing applicant, and the
competitor fails to pay the agreed upon amount, you will be liable for
the entire amount due. BLM will not do any work without the advance
payment.
Sec. 2804.20 How will BLM process my application?
(a) BLM will notify you in writing when it receives your
application and your cost reimbursement payment described at
Sec. 2804.14 of this subpart.
(b) BLM may require you to submit additional information necessary
to review the application. This information may include a detailed
construction, operation, rehabilitation, and environmental protection
plan, i.e., a ``Plan of Development,'' and any needed cultural resource
surveys or inventories for threatened or endangered species. If BLM
needs more information, we will request this information in writing.
BLM will give you written notification of any deficiencies in the
information you provided and give you the opportunity to file the
additional information. BLM will also notify you of any applications
for grants which involve all or part of the lands you applied for.
(c) BLM will process your application within 30 working days of
receiving it if it is a Category I through III application that
qualifies for a categorical exclusion or requires an environmental
assessment. If it is a Category IV application or one requiring an
environmental impact statement, BLM will notify you in writing of the
estimated processing time for your application. If processing any
category of application will take longer than 60 working days, BLM will
notify you and provide you with an explanation of the delay and an
estimate of the processing time.
(d) Before issuing a grant, BLM will:
(1) Complete an environmental analysis, as required by 40 CFR part
1501;
(2) Determine whether or not your proposed use complies with
applicable Federal and State laws and local ordinances;
(3) Determine whether it is in the public interest to require you
to grant the United States an equivalent right-of-way across lands that
you own;
(4) Consult as necessary with other governmental entities;
(5) Hold public meetings if sufficient public interest exists to
warrant their time and expense. BLM will publish a notice in the
Federal Register or a local newspaper if we hold any public meetings;
(6) Take any other action necessary to fully evaluate and decide
whether to approve or deny your application.
(e) If approved, the decision may:
(1) Include any terms, conditions that BLM determines to be in the
public interest. This may include modifying your proposed use, changing
the route or location of the facilities, and other stipulations.
(2) Prevent your use of the right-of-way until you have an approved
Plan of Development and BLM has issued a Notice to Proceed.
(3) Impose a specific term for the grant. Each grant that BLM
issues for 20 years or more will contain a provision requiring periodic
review at the end of the twentieth year and at 10-year intervals
thereafter. BLM may change the terms and conditions of the grant as a
result of these reviews.
Sec. 2804.21 Can BLM reject my application?
Yes. BLM may reject your application if:
(a) The proposed grant is inconsistent with the purpose for which
the public lands are being managed;
(b) The proposed grant would not be in the public interest;
(c) You are not qualified to hold a grant;
(d) Issuing the grant would be inconsistent with the Act or other
applicable laws;
(e) You do not have or cannot demonstrate the technical or
financial capability to operate facilities located with the grant; or
(f) You do not adequately comply with a deficiency notice (see
Sec. 2804.19(b) of this subpart).
Sec. 2804.22 Do I owe any money if BLM rejects my application or if I
withdraw my application?
Yes. You owe only the initial processing fee, unless you have a
Category IV application or have entered into a master agreement. Then,
the following conditions apply:
(a) If BLM rejects your application, you are liable for all
reasonable costs that BLM incurred in processing it. The money you have
not paid is due within 30 days of your receiving a bill for the amount
due.
(b) If you withdraw your application before BLM issues a grant, you
are liable for all the reasonable processing costs and for the
reasonable costs of terminating your application. Any money you have
not paid is due within 30 days of your receiving a bill for the amount
due.
Sec. 2804.23 Do I always have to submit an application for a right-of-
way to receive a grant?
(a) No. Where competitive interest exists, BLM may offer grants and
set rent through a competitive bid process. BLM will describe the
procedures for a competitive bid through a bid announcement published
in a newspaper of general circulation in the
[[Page 32130]]
area affected by the potential right-of-way.
(b) Oil and gas lessees or operators may include right-of-way needs
with their Applications for Permits to Drill or similar surface use
requirements under the regulations at part 3100 of this chapter.
Sec. 2804.24 Do I have to pay the costs of processing BLM rights-of-
way associated with Federal Energy Regulatory Commission (FERC)
licenses?
Yes. You must reimburse BLM for the costs which it incurs in
processing your application. BLM will bill you for this service. FERC
will bill you for costs incurred in processing the FERC license or
relicense. BLM will determine the amount that you have to pay by using
the cost recovery categories described at Sec. 2804.14 of this subpart.
Sec. 2804.25 What can I do on the proposed right-of-way while BLM is
processing my application?
You may conduct casual use activities on the lands covered by the
application, as may any other member of the public. For any activities
that are not casual use, you must get prior approval from BLM.
Subpart 2805--What Terms and Conditions Do Grants Contain?
Sec. 2805.10 What does a grant contain?
The grant states what your rights are on the lands subject to the
grant and contains information about:
(a) What lands you can use or occupy. The lands may or may not
correspond to those you applied for. BLM will limit the grant to those
lands which the BLM determines:
(1) Will be occupied by the authorized facilities;
(2) Are necessary for constructing, operating, maintaining, and
terminating the authorized facilities;
(3) Are necessary to protect the public health and safety; and
(4) Will not unnecessarily damage the environment.
(b) How long you can use the right-of-way. Each grant will state
the length of time that you are authorized to use the right-of-way. BLM
will consider the following factors in establishing a reasonable time
limit:
(1) The public purpose served,
(2) Cost and useful life of the facility, and
(3) Time limitations imposed by licenses or permits required by
other federal agencies and state or local governments.
(c) Terms and conditions of use. If you accept a grant, you must
agree to comply with and be bound by certain terms and conditions. You
must:
(1) Comply with all local, state, and federal laws and regulations
applicable to the authorized use, construction, maintenance, and
termination of the project and existing at the time the BLM issues the
grant and those state, local, and federal laws and regulations
subsequently enacted, issued, or amended during the term of the grant;
(2) Rebuild and repair roads, fences, and established trails
destroyed or damaged by constructing, operating, maintaining, or
terminating the project and build and maintain suitable crossings for
existing roads and significant trails that intersect the project;
(3) Do everything reasonable, on your own or at BLM's request, to
prevent and suppress fires on or in the immediate vicinity of the
right-of-way area;
(4) Not discriminate against any employee or applicant for
employment associated with the authorized use because of race, creed,
color, sex, or national origin and require subcontractors to refrain
from discrimination also;
(5) Pay rentals and reimbursable costs as described at
Secs. 2806.10 and 2805.14;
(6) Certify that you have a surety bond or other acceptable
security to cover any losses, damages, or injury to human health, the
environment, and property resulting from or related to your activities
on the right-of-way. Coverage includes liabilities for damages or
injuries resulting from actual or threatened releases or discharges of
hazardous materials. Based on changes in conditions or risk and your
record of compliance, BLM may require a bond or an increase or decrease
in an existing bond at any time during the term of the grant;
(7) Assume full liability if third parties are injured or damages
occur to property on or around the grant area (see Sec. 2807.12);
(8) Comply with project-specific terms and conditions, including
requirements to:
(i) Restore, revegetate, and curtail erosion or any other
rehabilitation measure determined necessary;
(ii) Ensure that activities in connection with the grant comply
with applicable air and water quality standards or related facility
siting standards contained in applicable federal or state law or
regulations;
(iii) Control or prevent damage to environmental values, federal
property, and public health and safety;
(iv) Protect the interests of individuals living in the general
area who rely on the area for subsistence purposes; and
(v) Ensure that the facilities are constructed, used, operated, and
terminated in a manner consistent with the grant and on the lands
included in the grant;
(9) Immediately notify all federal, state, and local agencies with
jurisdiction over the land, including BLM, of any actual or threatened
release or discharge of hazardous material and send a copy of the
notification to BLM;
(10) Not dispose of hazardous materials on your grant, except as
provided by the terms and conditions of your grant, and not store
hazardous materials on your grant for more than 90 days, less if
required by law;
(11) Annually and on assigning, renewing, and terminating your
grant, certify that you have complied with all requirements of the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
11001 et seq.;
(12) Control and remove any release or discharge of hazardous
materials that occurs on or near the right-of-way, whether the release
or discharge is authorized under the grant. You must also remediate or
restore lands and resources affected by the release or discharge to
BLM's satisfaction and to the satisfaction of any other federal, state
or local agency having jurisdiction over the land, resource or
hazardous material;
(13) Comply with all liability and indemnification provisions and
stipulations; and
(14) Comply with all other stipulations that BLM may require.
Sec. 2805.11 When is the grant effective?
The grant is effective after both you and BLM sign it. Your
signature indicates that you accept its terms and conditions. You must
also pay any necessary rent and monitoring. Your signed acceptance
constitutes an agreement between you and the United States that your
right to use the public lands, as specified in the grant, is subject to
the terms and conditions of the grant and the provisions of applicable
laws and regulations.
Sec. 2805.12 What rights does the grant convey?
The grant conveys to you only those rights which it expressly
contains. It is issued subject to the valid existing rights of others,
including the United States. Rights which the grant conveys to you
include the right to:
(a) Use the affected lands to construct, operate, maintain, and
terminate facilities within the right-of-way for authorized purposes
under the terms and conditions described in the grant;
(b) If your grant specifically authorizes it, allow other parties
to use your facility for the purposes specified
[[Page 32131]]
in your grant and charge for its use. Otherwise, you may not let anyone
else use your facility unless BLM authorizes or requires it in writing;
(c) Allow others to use the land as your agent in the exercise of
the rights that the grant specifies;
(d) Do minor trimming, pruning, and removing of vegetation to
maintain the right-of-way or facility;
(e) Make use of common varieties of stone and soil which are
removed when constructing part of the project, in constructing other
parts of the project within the authorized right-of-way, without
additional BLM authorization or payment; and
(f) Assign the grant to another, provided that you obtain BLM's
prior written approval.
Sec. 2805.13 What rights does the United States retain?
The United States retains and may exercise any rights the grant
does not expressly convey to you. These include the right of BLM to:
(a) Access the lands covered by the grant and enter any facility
you construct on the grant after BLM gives you reasonable notice;
(b) Require common use of the land included in your right-of-way
and authorize use of the right-of-way for compatible uses. You may not
charge for the use of the lands made subject to such additional rights-
of-way;
(c) Retain ownership of the products of the land, including living
and non-living resources. You have no right to use these resources,
except as noted in Sec. 2805.12 of this subpart;
(d) Require you to grant it an equivalent right-of-way for an
access road across your land if BLM determines the reciprocal grant is
needed in the public interest;
(e) Determine whether or not your grant is renewable; and
(f) Change the terms and conditions of your grant through changes
in legislation, regulation, or otherwise necessary to protect public
health and safety and the environment.
Sec. 2805.14 What are monitoring fees?
(a) Monitoring fees are similar to the processing costs fees
described at Secs. 2804.14 and 2804.16. BLM incurs costs in monitoring
your construction, operation, maintenance and termination of the
facilities we authorized under the grant and in protecting and
rehabilitating the affected public lands. BLM uses the same category
for monitoring as it does for determining the category of the
application. (See Sec. 2804.14.)
(b) Costs for Categories I through III. For Categories I through
III, there is a one-time monitoring fee based on a fee schedule
available from any BLM office. BLM annually updates these costs, using
the same method it uses for application processing costs. (See
paragraph (c) of Sec. 2804.14.)
(c) Costs for Category IV. See Sec. 2805.15(b) of this subpart.
Sec. 2805.15 When do I pay monitoring costs?
(a) All categories. For Categories I through III, you must submit
the payments for monitoring with your written acceptance of the terms
and conditions of the grant. For Category IV, you must submit the first
periodic advance payment with your written acceptance. If you have a
master agreement with BLM, pay the monitoring costs per the agreement.
BLM will not issue your grant until it receives the required payment.
(b) Periodic advance payments. If you have a Category IV
application, BLM may periodically estimate the costs of monitoring your
use of the grant. BLM will include this fee in the costs associated
with processing costs described at Sec. 2804.14. If your payments
exceed reasonable costs, BLM will reimburse you the difference or
adjust the next billing to reflect the overpayment. Unless you have
written authorization from BLM, you may not offset or deduct the amount
due from your payments. The periodic advance payments are subject to
re-estimation if conditions warrant.
Subpart 2806--What Information Do I Need to Know About Rents for
Right-of-Way Grants?
Sec. 2806.5 What definitions do I need to know to understand these
regulations?
As used in this subpart, the term:
(a) Base rent means the dollar amount required from the holder of a
right-of-way on BLM-managed lands based on the communication use with
the highest rent in the associated facility, as calculated according to
the terms of the right-of-way grant or lease. If a facility manager or
owner's scheduled rent is equal to another assigned scheduled rent in
the facility, then the facility manager or owner's use determines the
dollar amount of the base rent.
(b) Commercial purpose refers to the circumstance where a facility
owner charges rent for the use of a facility that generates more than
the operating expenses of the facility attributable to that use, thus
producing a profit for the facility owner. The facility owner's use may
not otherwise be subject to rent charges under BLM's rental provisions.
Example: A two-way radio service, used only by paying subscribers, is
housed in an REA-financed facility located on a rent-free right-of-way.
The facility owner charges the radio service an annual rent for using
all or part of the facility that exceeds the portion of the annual
operating expenses, such as Federal, State and local taxes, if any, and
financing charges (but not depreciation), maintenance, labor,
remodeling, replacement, and utility costs, that are attributable to
the radio service's using the facility. Under the circumstances, the
otherwise rent-free facility is being used for a commercial purpose,
and, therefore, BLM will charge the facility owner an appropriate rent;
(c) Communication use rent schedule is a schedule of rents for the
following types of communication uses, including related technologies,
located in a facility associated with a particular right-of-way grant.
For rent calculation purposes, all use categories include ancillary
communications equipment, such as microwave or internal one- or two-way
radio:
(1) Television broadcast means a use, licensed by the Federal
Communications Commission (FCC), that broadcasts UHF and VHF audio and
video signals for general public reception and ancillary communication
equipment directly related to the operations, maintenance and
monitoring of the use. This category does not include Low Power
Television (LPT) or rebroadcast devices, such as translators, or
transmitting devices, such as microwave relays serving broadcast
translators. BLM does not consider ancillary equipment used in direct
support of the primary communication use as a separate use for rent
calculation purposes;
(2) AM and FM radio broadcast means a use, licensed by the FCC,
that broadcasts amplitude modulation (AM) or frequency modulation (FM)
audio signals for general public reception and ancillary communication
equipment, directly related to operating, maintaining and monitoring
the use. This category does not include FCC-licensed low-power FM
radio; rebroadcast devices, such as translators; boosters or microwave
relays serving broadcast translators;
(3) Broadcast radio and low power television means a use, licensed
by the FCC, that operates translators and low power television, low-
power FM radio (LPFM), and ancillary communication equipment, including
microwave facilities, directly related to operating, maintaining, or
monitoring the use. Translators receive a television or FM radio
broadcast signal and rebroadcast it
[[Page 32132]]
on a different channel or frequency for local reception. In some cases
the translator relays the true signal to another amplifier or
translator. LPTV and LPFM are broadcast translators that originate
programming. This category of use includes translators associated with
public telecommunication services.
(4) Cable television means a use, licensed by the FCC, that
transmits video programming to multiple subscribers in a community over
a wired or wireless network and communication equipment directly
related to operating, maintaining, or monitoring the use. 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 or residences;
(5) Cellular telephone means systems and related technologies,
licensed by the FCC, used for mobile communications, using a
combination of radio and telephone switching technology and providing
public switched network services to fixed and mobile users within a
defined geographic area. The system consists of cell sites containing
transmitting and receiving antennas, cellular base station radio,
telephone equipment, and microwave communications link equipment and
the ancillary communication equipment directly related to maintaining
and monitoring the use. Examples: Personal Communication Service (PCS),
Enhanced Specialized Mobile Radio (ESMR), Improved Mobile Telephone
Service (IMTS), Air-to-Ground, Offshore Radio Telephone Service, and
Cell Site Extenders;
(6) Commercial mobile radio service/facility manager means
commercial mobile radio uses or their holders, licensed by the FCC,
that provide communication service to individual customers and
ancillary communication equipment directly related to operating,
maintaining, or monitoring the use. Examples: Two-way voice and paging
services, such as community repeaters, trunked radio (specialized
mobile radio), two-way radio dispatch, public switched network
(telephone/data) interconnect service, and microwave communications
link equipment or those holders that lease building, tower, and related
facility space to a variety of tenants as part of their business
enterprise and act as facility managers;
(7) Microwave means FCC-licensed uses that operate long-line
intrastate and interstate public telephone, television, information,
and data transmissions; uses in support of pipeline and power
companies, railroads, and land resource management companies that
support their primary business, and communication equipment directly
related to operating, maintaining or monitoring the use;
(8) Private mobile radio means FCC-licensed uses supporting private
mobile radio systems primarily for a single entity and communication
equipment directly related to operating, maintaining, or monitoring the
use. This use is not sold and is exclusively limited to the user in
support of business, community activities, or other organizational
communication needs. Examples: Private local radio dispatch, private
paging services, and ancillary microwave communications equipment for
controlling mobile facilities; and
(9) Other communication uses means FCC-licensed private
communication uses, such as amateur radio, personal/private receive-
only antennas, natural resource and environmental monitoring equipment,
and other small, low-power devices used to monitor or control remote
activities.
(d) Customer means an occupant who is paying a facility manager or
owner, or a tenant, for using all or any part of the space in the
facility, or for communication services, and is not reselling or
broadcasting communication services to others. Examples: Two-way radio,
internal microwave communications, and all uses under the ``other''
category when located within someone else's facility. Persons or
entities benefiting from private or internal communication uses located
in another holder's facility are considered customers for purposes of
calculating rent. Customer uses are not included in calculating the
amount of rent that is charged by BLM, except as noted in
Sec. 2806.20(b)(4) of this subpart.
(e) Facility manager means a person or entity that:
(1) Owns a communication facility on federal land;
(2) Leases space to other communication users;
(3) Does not own or operate communications equipment in the
facility for personal use; and
(4) Holds a communication use authorization.
(f) Facility owner means a person or entity that:
(1) Owns a communication facility on a right-of-way grant;
(2) Owns and operates his or her own communications equipment in
the facility;
(3) Holds a communication use authorization; and
(4) May or may not lease space to other communication users in that
facility.
(g) Reselling means providing communication services to others for
profit, such as Commercial Mobile Radio Service providers, providers of
cellular telephone services, or communication businesses, such as
television and radio broadcasters.
(h) Site means an area, such as a mountain top, where one or more
communication facilities are located.
(i) Tenant means an occupant who pays rent for occupying and using
all or any part of a facility and operates communication equipment in
the facility to resell or broadcast the communication services to
others for a profit. For purposes of calculating the amount of rent
that BLM charges, the term ``tenant'' does not include private mobile
radio or internal microwave use that is not being re-sold, or uses
included in the category of ``Other Communication Uses.''
(j) Zone means one of eight groupings of land value into which all
areas of the contiguous United States were placed for linear rent
assessment purposes.
(k) Zone value means the per acre, fair market value of land that
is used to calculate rents for linear right-of-way grants. For example,
lands within a zone with a value of $50 per acre are in Zone 1, lands
within a zone with a value of $100 are in Zone 2, land within a zone
with a value of $200 are in Zone 3, and so forth.
Sec. 2806.10 Must I pay rent for using my right-of-way?
Yes. You must pay rent in advance, unless your rent is based in
whole or in part on a percentage of production or similar terms. The
rent is equivalent to the fair market rental value, which BLM
establishes based on sound business management principles.
(a) BLM will charge the rent beginning on the first day of the
month following the effective date of the grant through the last day of
the month when the grant terminates. Example: If a right-of-way became
effective on January 10 and terminated on September 16, the rental
period would be February 1 through September 30, or 8 months.
(b) BLM will set or adjust the annual billing periods to coincide
with the calendar year by prorating the rent on the basis of 12 months.
(c) BLM may require that you make either annual payments or
payments for more than 1 year at a time. However, if you are a private
individual and the annual rent is more than $100, you may elect to make
either annual payments or payments for more than 1 year.
[[Page 32133]]
(d) If BLM issued your right-of-way on or before October 21, 1976,
under then existing statutes, you may request a hearing with BLM before
a proposed rent increase becomes effective. This applies to rent
increases due to a fair market value appraisal or from initially being
put on a rent schedule. You may not request a hearing on annual
adjustments once you are on a schedule.
(e) If you disagree with the rent that BLM charges, you may appeal
the decision under part 4 of this title.
Sec. 2806.11 Are there exceptions to paying rents?
Yes, you do not have to pay rent for your use if:
(a) BLM issues the grant under a statute which does not allow it to
charge rent, or
(b) You are a federal, state, or local government or their agency
or instrumentality, unless you are using the system or space for
commercial purposes or you are a municipal utility or cooperative whose
principal source of revenue is customer charges; or
(c) You have been granted a waiver of rent under a statute
permitting waiver; or
(d) The facilities constructed on the right-of-way were constructed
with funds from the Rural Electrification Act of 1936, as amended
(REA), or are owned and operated by a non-profit rural electric or
telephone cooperative eligible for REA financing, or are extensions of
such facilities. You must be able to document your eligibility for REA
financing. However, BLM will charge you rent based on your tenants and
customers if:
(1) You are a commercial communications company using power poles
under an agreement with the Rural Utility Service, or
(2) You hold a communication site right-of-way grant used and
occupied by tenants, or
(3) You provide communication services to customers for commercial
purposes in connection with your right-of-way.
Sec. 2806.12 Can my rent be reduced?
Yes. BLM may reduce your rent payment where:
(a) You are a non-profit corporation or association which is not
controlled by or is not a subsidiary of a profit making corporation or
business enterprise; and
(b) 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; or
(c) You hold an outstanding permit, lease, license, or contract for
which the United States is already receiving compensation. This does
not apply to oil and gas leases under part 3100 of this title, where
you are required to secure a grant under part 2800 for access to reach
the lease area, or a right-of-way under part 2880 to transport products
to or from the lease area; or
(d) The grant involves a reciprocal right-of-way agreement not
subject to part 2812 of this title. BLM will determine the fair market
value rent for cost share roads or reciprocal rights-of-way based on
the proportion of use; or
(e) The BLM State Director determines that paying the full rent
will cause you hardship, as defined at Sec. 2804.18(b)(1), and that
reducing or waiving the rental payment is in the public interest. BLM
may require you to submit data and information to support a proposed
finding that your grant qualifies for a reduction or waiver of rental.
(See Sec. 2804.18 for information about how to apply for a rent
reduction.)
Sec. 2806.13 What happens if I default on my rent payment?
If you do not pay the rent when it is due under the terms and
conditions of the grant or applicable law, and delinquency continues
for 30 days after BLM sends you a payment notice, BLM may terminate
your grant or take appropriate action to collect the rent owed. After
you have defaulted, you may not remove any structures, buildings, or
equipment without BLM's written permission. The rent due remains a debt
that you owe to the United States. If you pay the rent after the lease
or grant has terminated, the grant is not automatically reinstated. You
must file a new application with BLM. BLM will consider the history of
your failure to pay rent in deciding whether to offer you a new grant.
Sec. 2806.14 What are the rent costs for linear rights-of-way?
(a)(1) BLM will normally use a schedule, which is updated annually,
to determine the rent for your linear grant. BLM may use an alternate
means to compute your rent if:
(i) The land value of a substantial segment or area within the
right-of-way exceeds the zone's value by a factor of 10, or
(ii) The expected rent is sufficient to warrant a separate
appraisal.
(2) Once you are on a rent schedule, BLM will not use the
conditions in paragraphs (a)(1)(i) and (ii) of this section to remove
you from the schedule, unless you file an application to amend your
right-of-way grant.
(b) You may obtain the current linear right-of-way rent schedule
from any BLM State or field office or by writing: Director, BLM, 1849 C
St., N.W., Mail Stop 1000 LS, Washington, D.C. 20240. BLM will also
post the current rent schedule on the BLM Homepage on the Internet,
http://www.blm.gov.
Sec. 2806.15 Does the linear rent schedule ever change?
Yes. BLM annually adjusts the rental schedule by multiplying the
current year's rent-per-acre by the annual change, second quarter to
second quarter (June 30 to June 30), in the Implicit Price Deflator-
Gross Domestic Product Index, as published in the Survey of Current
Business of the Department of Commerce, Bureau of Economic Analysis.
Sec. 2806.16 How will BLM calculate my rent for linear rights-of-way
covered by the schedule?
BLM calculates your rent by multiplying the rent-per-acre from the
current schedule by the number of acres in the grant and the number of
years in the rental period. If BLM has not previously used the rent
schedule to calculate your rent, we may do so after giving you
reasonable written notice.
Sec. 2806.17 What are the rent costs for communication facilities or
uses?
(a) Schedule of rents. BLM uses a communication use rent schedule
to determine the rent for communication site rights-of-way. The
schedule is based on the population served, as depicted by the Ranally
Metro Area population rankings, and the type of communication use or
uses for which communication site rights-of-way are ordinarily granted.
These uses are listed as part of the definition of ``communication use
rent schedule,'' set out at Sec. 2806.5 of this subpart. You may obtain
a copy of the schedule from any BLM State or field office or by
writing: Director, BLM, 1849 C St., N.W., Mail Stop 1000 LS,
Washington, D. C. 20240. BLM posts the communication site rent schedule
to the BLM National HomePage on the internet, at http://www.blm.gov.
BLM annually updates the schedule based on two sources: the U. S.
Department of Labor Consumer Price Index for All Urban Consumers, U. S.
City Average, published in July of each year, and the Ranally Metro
Area population rankings. BLM will limit adjustments based on the
Consumer Price Index to no more than 5 percent. At least every 10 years
BLM will review the rent schedule to ensure that the schedule reflects
a rational fair market value estimate.
(b) Uses not covered by the schedule. The communication use rent
schedule does not apply to:
[[Page 32134]]
(1) Communication site uses, facilities and devices located
entirely within the exterior boundaries of an oil and gas lease, but
which are directly associated with the operations of the oil and gas
lease, for which see part 3100 of this chapter. Any other communication
use, not directly associated with the lease operation, is not excluded;
or
(2) Communication facilities and uses ancillary to and authorized
under a linear right-of-way grant, such as a railroad right-of-way
grant;
(3) Communication uses, including new, unrelated technologies, not
listed on the schedule;
(4) Right-of-way grants for which the rent is determined through
appraisals, competitive bidding, or other reasonable methods; and
(5) Situations where the expected rent exceeds the schedule by five
times or the communication site serves a population of one million or
more and the expected rent for the communication use or uses is more
than $10,000 above the schedule rent. The State Director must concur in
this determination.
Sec. 2806.18 How does BLM calculate rent for communication uses
covered by the schedule?
(a) Basic rule. BLM determines rentals for:
(1) Single use facilities by applying the rental rate for the type
of use and the community served, and
(2) Multiple-use facilities by determining the highest value use in
the facility or facilities as the base rent (when under one
authorization), plus 25 percent of the schedule rent for all tenant
uses in the facility, if these are not used as the base rent.
(b) Exemption. BLM will exclude customer uses, unless expressly
provided for, and any other waived or exempted uses, when calculating
rents.
(c) Basic action. By October 15 of each year, you must submit a
certified statement listing the tenants in the facility and the
category of use for each tenant as of September 30 of the year. BLM may
require you to submit any additional information needed to calculate
your rent.
Sec. 2806.19 How will BLM determine the rent for a single-use
communication facility?
(a) BLM determines the rent for a single-use communication facility
from the communication use rent schedule, based on the authorized
single use and the population area served.
(b) BLM determines the population area served as follows:
(1) If the site or facility is within a designated Ranally Metro
Area (RMA), BLM will use the RMA to calculate the rent;
(2) If the site or facility is outside an RMA but serves one or
more RMAs, BLM will use the largest RMA served to calculate the rent;
(3) If the site or facility is outside an RMA and the site does not
serve the RMA, BLM will use the schedule rent for the population of the
largest community served by the site.
(4) If the site or facility is outside an RMA and the site serves a
community of less than 25,000, BLM will use the lowest rent shown on
the schedule for the type of use.
(c) BLM may make case-by-case exceptions to calculate the rents
described in paragraph (b) of this section only for just cause.
Sec. 2806.20 How will BLM calculate the rent for a multiple use
communication facility?
(a) Calculation rules. BLM will first determine the population area
served according to paragraphs (b) and (c) of Sec. 2806.19 of this
subpart and then calculate the rent for a communication facility with
tenants or customers or both as follows:
(1) BLM will calculate the rent based on the highest value use in
the facility, plus 25 percent of the scheduled rent for each of the
other tenant uses in the facility;
(2) If the highest value use is not the use of the facility owner
or manager, BLM will consider such owner's or manager's use like any
other tenant use for calculating the rent;
(3) If the tenant use becomes the highest value use, BLM will
exclude that use from the 25 percent of the schedule rent calculation
relative to tenant uses;
(4) If a single authorization or entity has multiple uses, such as
an FM and an AM radio station, BLM will base the rent on the sum of
each use. The FM rent would be the highest value use and the AM portion
would be charged according to the rent schedule for tenant use.
(b) Exemptions to calculating rents. The following rules apply to
calculating rents for exempted or waived communication uses:
(1) BLM will exclude exempted or waived uses for either facility
owners or tenants in calculating rents;
(2) BLM will treat facility owners whose own use is either exempted
or waived from rent but who have tenants using or occupying space in
their facility as any other facility owner and assess rent based on the
highest value use plus 25 percent of the schedule rent for each of the
other remaining uses, less exempted or waived uses; and
(3) You owe no rent if:
(i) The facility owner's use is exempted or waived from rent,
(ii) All other uses in the facility are exempt or are considered
customer uses, and
(iii) The facility owner is not profiting from the other uses in
the building facility.
(4) If the facility owner, whose own use is exempted from rent, is
conducting a commercial activity with customers or tenants that are not
exempt from rent, BLM will assess rent based on the highest value use
within the facility;
Sec. 2806.21 How will BLM calculate rent for private mobile radio
service (PMRS), internal microwave and ``other'' category uses?
If the PMRS, internal microwave or ``other'' use:
(a) Is located in someone else's facility, BLM will consider them
customers and not include them in the rent calculation for the
facility; or
(b) Is the facility owner, BLM will treat them as any other
facility owner. If a tenant has a higher value use than the facility
owner's use, that use becomes the base rent. The PRMS, internal
microwave, or ``other'' use is then exempt as a customer.
Sec. 2806.22 How will BLM authorize and calculate rents for customers
and tenants who choose to have their own right-of-way facility to be
used in common with an existing right-of-way of the owner of a
communication facility that they use or occupy?
(a) BLM does not require separate right-of-way grants for tenants
and customers using or occupying an authorized facility. BLM assesses
the facility owner rent based on the highest value use within the
facility and 25 percent of scheduled rent for each of the other
remaining tenant uses subject to rent.
(b) Tenants and customers who choose to retain or be granted their
own right-of-way grants in common will be charged, as right-of-way
holders, a full annual rent for their use based on the BLM
communication use rent schedule and the population served. BLM will
include their type of communication use as a use to be included in
calculating the rent to be paid by the facility owner or manager.
Sec. 2806.23 How will BLM calculate rents as to ``shared facilities''
or for multiple facilities that are under one authorization?
(a) BLM considers each use within the shared facilities separately
in determining rent. An example of shared facilities would be a holder
or tenant with a microwave dish associated with
[[Page 32135]]
a building or tower on Facility A, which has an authorization from BLM,
and other equipment or leased space associated with Facility B, which
also has an authorization from BLM.
(b) If you hold multiple authorizations for two or more facilities
on the same site, you can combine all those uses under one
authorization. The highest value use in the facility becomes the base
rent, and BLM assesses each of the other uses at 25 percent of the
scheduled rent, unless it is waived or exempted.
Sec. 2806.24 How does BLM calculate rent for a facility manager use?
BLM employs the schedule value for a facility manager use only if
the value is equal to or greater than the other uses in the facility.
BLM does not include the use in the 25 percent calculation for other
uses in the facility when it is not the highest value use.
Sec. 2806.25 How does BLM calculate rent for ancillary uses?
(a) If internal mobile radio and microwave systems are ancillary,
that is, give support or connect one another on the same communications
facility or give support for another use, then BLM will base rent only
on the primary use, if the microwave ends at the facility and is used
for control of the mobile or microwave system.
(b) If microwave and PMRS uses are located in the same facility but
are independent of one another, BLM will consider each use as separate
when calculating the rent.
(c) If a communication facility is ancillary to and authorized
under a linear right-of-way grant for a linear use or facility, or for
some other type of authorization, e.g., a mineral lease or sundry
notice, BLM will determine the rent based on the linear schedule and
not the communication site schedule. The rent for any communication
facility use located on the right-of-way will have its rent calculated
separately based on an appraisal or other reasonable valuation methods.
Sec. 2806.26 How does BLM calculate rent for uses within federally
owned facilities?
If you are a tenant or customer in a federally owned facility, you
must have your own authorization and pay the full schedule rent, based
on the use and the population served. This does not apply to federal
departments and agencies that have commercial ventures and operate as a
facility manager or owner in accordance with this subpart.
Sec. 2806.27 What happens if converting to the rent schedule causes a
$1,000 or more increase in my rent?
BLM will phase in the new rent amount over a 5-year period. In the
first year under the schedule, your rent payment will be the current
year's rental plus $1,000. BLM will divide the amount exceeding $1,000
into four equal installments. Beginning the second year after the
increase, BLM will add the installment, plus any changes in tenant use
and the CPI-U index, to the previous year's rent.
Sec. 2806.28 What are the rent costs for other rights-of-way and uses?
(a) BLM will use the same rent schedules for passive reflectors and
local network exchanges 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.
(b) When neither the linear nor the communication site schedule is
appropriate, BLM determines rent through an appraisal process based on
comparative market surveys, appraisals, competitive bid, or other
reasonable methods. BLM will advise you of the rent determination. If
you disagree with the determination, you will be afforded an
opportunity for a hearing, and you may appeal BLM's final determination
under part 4 of this title.
(c) To expedite processing of any grant, BLM may estimate rent and
collect a deposit in advance. Once BLM completes its rent value
determination, it will adjust the advance deposit to reflect the final
fair market rent value determination and either issue you a refund or
require you to pay the difference, as appropriate.
(d) For passive reflectors or local network exchanges not covered
by a Forest Service rental schedule, see paragraph (b) of this section.
Subpart 2807--What Can I Do on the Right-of-Way Once BLM Issues the
Grant?
Sec. 2807.10 When can I start activities under my grant?
When you can start depends on the terms of your grant. You can
start activities when you receive the signed authorization from BLM,
unless the grant includes a requirement for a written notice to
proceed. If your grant contains a notice to proceed requirement, you
may not initiate construction, operation, maintenance, or termination
until BLM issues you a notice to proceed.
Sec. 2807.11 When must I contact BLM?
Contact BLM:
(a) At the times specified in your grant;
(b) When your use requires a substantial deviation from the grant.
``Substantial deviation'' means a deviation in location or authorized
use which requires:
(1) Construction or use outside the boundaries of the authorized
right-of-way, or
(2) Any change from or modification of the authorized use.
Examples: adding equipment, overhead or underground lines, pipelines,
structures or other facilities;
(c) When there is a change of status in your application or grant,
such as a changed legal mailing address, principal partners, financial
conditions, or business or corporate status; and
(d) When you submit a certification of construction, if required by
the terms of your grant.
Sec. 2807.12 For what am I liable?
(a) You are fully liable to the United States and to third parties
for any damage or injury they incur in connection with your use and
occupancy of the right-of-way.
(b) You will be held to a standard of strict liability for any
activity or facility associated with your right-of-way area which BLM
determines presents a foreseeable hazard or risk of damage or injury to
the United States. BLM will specify in the grant the activities and
facilities to which such standards apply.
(1) BLM will not impose strict liability for damage or injury
resulting primarily from an act of war, an act of God or the negligence
of the United States, except as otherwise provided by law.
(2) As used in this section, ``strict liability'' extends to costs
incurred by the federal government to control or abate conditions, such
as fire or oil spills, which threaten life, property or the
environment, even if the threat occurs on areas that are not under
federal jurisdiction. Your grant will contain stipulations that
describe the strict liabilities and the maximum amounts imposed. This
liability is separate and apart from liability under other provisions
of law.
(c) If you cannot satisfy claims for injury or damage, any owners
and all affiliates or subsidiaries of any holder of a grant, except for
corporate stockholders, are jointly and severally liable to the United
States.
(d) The rules of subrogation apply in cases where a third party
caused the damage or injury.
[[Page 32136]]
(e) If BLM issues a grant to more than one holder, each is jointly
and severally liable.
(f) By accepting the grant, you agree to fully indemnify and hold
the United States harmless for liability, damage or claims arising in
connection with your use and occupancy of right-of-way areas. You are
liable to the United States for up to $5 million for all damages,
injuries, fees, and costs associated with your using, developing, and
maintaining the grant and affected resources, regardless of fault. This
financial limitation does not apply to the release or discharge of
hazardous materials on or near the grant, or as otherwise allowed by
law.
(g) You are strictly liable for all costs above the $5 million
limit which accrue because of negligence regarding hazardous
substances.
(h) State and local governments may be excepted from the
requirements of this section as discussed in Sec. 2807.13(a) of this
subpart. .
Sec. 2807.13 What liabilities do state and local governments have?
(a) If you are a state or local government or its agency or
instrumentality, you are liable to the fullest extent law allows at the
time that BLM issues your grant. If you do not have the legal power to
assume liability, you must repair damages or make restitution to the
fullest extent of your powers.
(b) BLM may require you to furnish a bond or other acceptable
security to:
(1) Cover any losses, damages, or injury to human health, the
environment, and property related to your activities on the right-of-
way,
(2) Cover damages or injuries resulting from the actual or
threatened release or discharge of hazardous materials, and
(3) Protect the liability exposure of the United States to claims
by third parties arising out of your use of the right-of-way.
(c) Based on your record of compliance and changes in risk or
conditions, BLM may require you to increase or decrease the amount of
your security.
(d) The provisions of this section do not limit or exclude other
remedies that the United States may seek.
Sec. 2807.14 What happens if BLM transfers management of the land on
which my grant is located to another federal agency or outside of
public ownership?
(a) BLM may transfer administration of the grant to another federal
agency, unless doing so would diminish your rights.
(b) Where there is a proposal to transfer the land out of federal
ownership, BLM may:
(1) Transfer the land subject to your grant,
(2) Transfer the land but retain management of your grant with the
United States, or
(3) Reserve to the United States the land encumbered by the grant.
Sec. 2807.15 Can BLM temporarily suspend my activities to protect
public health and safety or the environment without providing an
administrative hearing?
(a) If BLM determines that you have violated one or more terms of
your grant, we can order an immediate temporary suspension of
activities within a grant area to protect the public health or safety
or the environment. BLM can stop your activities before holding an
administrative proceeding on the matter.
(b) BLM may make the temporary suspension order orally or in
writing to you, your contractor or subcontractor or to any
representative, agent, employee, or contractor representing you or
conducting the activity. When BLM makes the order, the activity must
stop immediately. BLM will promptly confirm an order by sending to you
or your agent at your address a written notice explaining the reasons
for the suspension order.
(c) The temporary order is effective until BLM issues another order
permitting resumption of activities.
(d) You may file a written request for permission to resume at any
time after BLM issues the order. In the request, give the facts
supporting your request and the reasons you believe that BLM should
lift the order.
(e) BLM must grant or deny your request within 5 working days after
receiving it. If BLM does not respond within 5 working days, BLM has
denied your request. You may then appeal under part 4 of this title.
Sec. 2807.16 Can BLM terminate or suspend my grant?
(a) BLM may elect to suspend your grant if you fail to comply with
applicable laws and regulations or any terms and conditions of the
grant.
(b) If your grant is an easement, BLM will refer the suspension or
termination of the grant to the Office of Hearings and Appeals for a
hearing before an Administrative Law Judge to determine whether or not
the termination or suspension is justified.
(c) A grant terminates when:
(1) As described in the grant, a fixed or agreed-upon condition,
event, or time occurs;
(2) BLM accepts your written request or consents to terminate the
grant; or
(3) BLM determines that you have failed to comply with applicable
laws and regulations or any terms and conditions of the grant;
(d) Your failure to use your right-of-way for its authorized
purpose for any continuous 5-year period (or for 2 years, if your grant
is issued under part 2880 of this chapter), constitutes a presumption
of abandonment. You may rebut the presumption by proving that you used
the right-of-way or that your failure to use the right-of-way was due
to circumstances beyond your control, such as acts of God, war, or
casualties not attributable to you.
Sec. 2807.17 How will I know that BLM intends to suspend or terminate
my grant?
(a) Before BLM suspends or terminates your grant, you will receive
a written notice stating that BLM intends to suspend or terminate your
grant and giving the grounds for such action. You will have a
reasonable opportunity to cure any non-compliance.
(b) For grants issued before October 21, 1976, any subsequent
grants issued as an easement, and grants issued under part 2880 of this
chapter, BLM must give you written notice and refer the matter to the
Office of Hearings and Appeals for a hearing before an Administrative
Law Judge (ALJ). If the ALJ determines that grounds for suspension or
termination exist and such action is justified, BLM will suspend or
terminate the grant.
Sec. 2807.18 What happens to any improvements on my grant when it
terminates?
You must remove any structures and improvements within the right-
of-way before it terminates, unless BLM instructs you otherwise in
writing. After removing the structures or improvements, you must
remediate and restore the site to a condition satisfactory to BLM,
including the removal and clean up of any hazardous materials. If you
fail to remove all structures or improvements within a reasonable
period, BLM may declare them to be the property of the United States.
However, you still will remain liable for the costs of removing them
and for restoring the site.
Sec. 2807.19 When must I amend my application or grant?
Amend your application or grant when:
(a) There is a substantial deviation in location or use. (See
paragraph (b) of Sec. 2808.11.) The requirements for an amended
application are the same as
[[Page 32137]]
those for a new application, including cost reimbursement according to
Sec. 2804.14.
(b) Your grant was issued before October 21, 1976, and you want to
change your use or the terms and conditions of the grant. If BLM
approves your application, you will receive a new right-of-way under 43
U.S.C. 1761 et seq. and this part.
(c) Your grant must be amended to allow realignment of a railroad
and appurtenant communication facilities. BLM must issue a decision
within 6 months after you file the application. BLM may include in any
new grant the same terms and conditions as the original grant
pertaining to payment of annual rents, duration of the grant, and the
nature of interest held, if:
(1) These terms are in the public interest,
(2) The lands are of approximately equal value, and
(3) The lands involved are not within an incorporated community.
Sec. 2807.20 May I assign my grant?
(a) If BLM approves your request, you may assign a grant in whole
or in part.
(b) If you want to assign your grant, the proposed assignee must
file an application under the same procedures as for a new grant. (See
subpart 2804 of this part.)
(c) Additionally, the request for assignment must include the
following:
(1) Documentation that you, the assignor, agree to the assignment;
and
(2) A stipulation that the assignee agrees to comply with and to be
bound by the terms and conditions of the grant to be assigned and all
applicable laws and regulations.
(d) BLM will not recognize an assignment until it approves the
assignment in writing. BLM may modify or add bonding and other
requirements, including additional terms and conditions, to the grant
when approving the assignment. BLM may decrease or increase rents if
the new holder qualifies for an exemption or reduction and the old
holder did not or vice versa.
(e) The processing times and conditions described at
Sec. 2804.20(c) apply to applications for assignment.
Sec. 2807.21 What will BLM charge for reviewing a request for
assignment?
You must reimburse BLM in advance for the administrative costs of
processing the proposed assignment in accordance with the work hours
specified in the category descriptions at Sec. 2804.14.
Sec. 2807.22 Can I renew my grant?
(a) If your grant provides for renewal, BLM will renew the grant if
you are using, maintaining, and operating the project or facility for
the purposes authorized in the original grant and if you are operating
and maintaining the grant according to its provisions and to the
applicable laws and regulations.
(b) If your grant does not provide for renewal, you may ask BLM to
renew the grant. Send BLM your request, in writing, at least 120 days
before your grant expires. You will need to show that you are
maintaining and operating the project or facility for the purposes
authorized in the expiring grant and that you are operating and
maintaining the grant according to its provisions and to the applicable
laws and regulations. BLM has the discretion to renew the grant if
doing so is in the public interest.
(c) In either case, paragraph (a) or (b) of this section, you
should submit an application containing the same information necessary
for a new application. (See subpart 2804 of this part.) You must
reimburse BLM in advance for the administrative costs of processing the
renewal in accordance with Sec. 2804.14.
(d) BLM will review your application and determine the applicable
terms and conditions.
Subpart 2808--What Do I Need To Know About Trespass?
Sec. 2808.10 What is trespass?
(a) Trespass is using, occupying, or developing the public lands
without authorization or using, occupying, and developing them in a way
that is beyond the scope and specific limitations of your
authorization. Trespass includes acts or omissions causing undue or
unnecessary degradation to the occupied public lands.
(b) There are two kinds of trespass, willful and non-willful.
(1) ``Willful trespass'' means voluntary or conscious trespass and
actions taken with criminal or malicious intent. It includes a
consistent pattern of actions taken with knowledge, even if those
actions are taken in the belief that the conduct is reasonable or
legal.
(2) ``Non-willful trespass'' means a trespass committed by mistake
or inadvertence.
Sec. . 2808.11 What will BLM do if it determines that I am in
trespass?
(a) BLM will notify you in writing of the trespass and indicate
your liability. Your liability includes:
(1) Reimbursing the United States for all costs incurred in
investigating and terminating the trespass;
(2) Paying the rental value of the lands, as provided for in
subpart 2806 of this part, for the current and past years of trespass,
or, where applicable, the cumulative value of the current use fee,
amortization fee, and maintenance fee for unauthorized use of any BLM-
administered road; and
(3) Rehabilitating, restoring, and stabilizing any damaged lands or
resources. If you do not rehabilitate, restore, and stabilize the lands
and resources within the time set by BLM in the notice, you will be
liable for the United States's costs in rehabilitating, restoring, and
stabilizing the lands and resources.
(b) BLM may assess penalties as follows:
(1) For all non-willful trespass which is not resolved within 30
days by meeting one of the conditions identified in Sec. 9239.7-1 of
this chapter, the penalty is an amount equal to the rental value; and,
for roads, an amount equal to the charges for road use, amortization,
and maintenance which have accrued since the trespass began;
(2) For repeated non-willful or willful trespass, the penalty is an
amount that is two times the rental value; and, for roads, an amount
two times the charges for road use, amortization and maintenance which
have accrued since the trespass began.
(c) The penalty will not be less than the processing fee for a
Category I application (see Sec. 2804.14) for non-willful trespass or
less than three times this value for repeated non-willful or willful
trespass. You must pay whichever is the higher of the computed penalty
or the minimum penalty amount.
(d) In addition to civil penalties, you may be tried before a
United States magistrate and fined no more than $1,000 or imprisoned
for no more than 12 months, or both, for a knowing and willful
trespass. (43 U.S.C. 1733(a))
(e) Until you satisfy your liability, BLM may refuse to process any
applications for any activities on BLM land that you have pending.
(f) You may appeal a trespass decision under part 4 of this title.
(g) Nothing in this section limits your liability under any other
state or federal law.
Sec. 2808.12 May I receive a grant if I am in trespass?
The only way to find out is to apply under the procedures described
at subpart 2804 of this part. BLM will process your application as if
it were a new use.
[[Page 32138]]
Subpart 2809--Are There Any Special Requirements Related To Issuing
Grants to Federal Agencies?
Sec. 2809.10 Can federal agencies get a right-of-way grant?
Yes. Any federal agency can apply for a grant under the procedures
contained in subpart 2804 of this part.
Sec. 2809.11 What will the grant contain?
The grant will contain the same terms and conditions as other
grants governed by this part to the extent possible. It will include
any terms and conditions appropriate for federal agencies. The grant
does not have to conform to the agency's proposal and may contain such
terms, conditions, and stipulations as BLM deems appropriate.
Sec. 2809.12 Can BLM suspend or terminate the grant?
BLM may suspend or terminate the grant only if its terms and
conditions allow it or if the agency head holding the grant consents to
it.
2. Revise part 2880 to read as follows:
PART 2880--RIGHTS-OF-WAY UNDER THE MINERAL LEASING ACT
Subpart 2881--What General Information Do I Need To Know About the
Regulations Concerning MLA Grants and Permits?
Sec.
2881.5 What definitions do I need to know to understand these
regulations?
2881.7 What is the scope of these regulations?
2881.8 What grants are covered by these regulations?
2881.9 Does BLM have the authority to ask me for the information
required in these regulations?
2881.10 Severability
Subpart 2882--What Lands Are Available for Oil and Natural Gas
Pipelines and Their Related Facilities?
Subpart 2883--What Qualifications Do I Need To Have To Hold an MLA
Grant or Temporary Use Permit?
2883.10 Who may hold a right-of-way grant under the Mineral Leasing
Act?
2883.11 Who is ineligible to hold an MLA grant or permit?
2883.12 How do I prove I meet the qualifications?
2883.13 What happens if BLM issues me an MLA grant or permit and
later determines that I am not qualified to hold it?
Subpart 2884--How Do I Apply for an MLA Grant or Permit?
2884.10 What should I do before I file my application?
2884.11 What information do I need to provide in my application?
2884.12 Is there a filing fee for my application?
2884.13 What is a master agreement and what must it contain?
2884.14 Are there any special payment requirements related to
Category IV applications?
2884.15 What happens if there are two or more competing
applications for the same pipeline facility or system?
2884.16 Where do I file my application for an MLA grant or permit?
2884.17 What are the public notification requirements for my
application?
2884.18 How will BLM process my application?
2884.19 Can BLM ask me for additional information?
2884.20 Can BLM reject my application?
2884.21 Do I owe any money if BLM rejects my application or if I
withdraw my application?
2884.22 What may I do on the proposed right-of-way while BLM is
processing my application?
2884.23 When will BLM issue the grant or permit?
Subpart 2885--What Are the Terms and Conditions of MLA Grants and
Permits?
2885.10 When is the MLA grant or permit effective?
2885.11 What are the terms and conditions of the grant or permit?
2885.12 How much does it cost to hold a grant or permit?
2885.13 Who is liable for payments?
2885.14 What happens if I default on my rental and other payments?
Subpart 2886--What Can I Do on My Grant or Permit Once I Obtain It?
2886.10 When can I start activities under my grant or permit?
2886.11 Who regulates my activities?
2886.12 What happens if I need a wider right-of-way in limited
areas?
2886.13 When must I contact BLM?
2886.14 When can BLM suspend my activities?
2886.15 For what am I liable?
2886.16 What happens if BLM transfers management of the land on
which my grant is located to another agency or outside public
ownership?
2886.17 When can BLM terminate or suspend temporary use permits?
2886.18 When can BLM suspend or terminate my grant or permit?
2886.19 What happens to any improvements on my grant when it
terminates?
Subpart 2887--What Information Do I Need To Know About Amending,
Assigning or Renewing My MLA Grant or Permit?
2887.10 What conditions require amending a grant?
2887.11 May I assign my grant?
2887.12 May I renew my grant?
Subpart 2888--What Do I Need To Know About Trespass?
Authority: 30 U.S.C. 185, unless otherwise noted.
Subpart 2881--What General Information Do I Need To Know About MLA
Grants and Permits?
Sec. 2881.5 What definitions do I need to know to understand these
regulations?
Unless a term is otherwise defined in this section, the definitions
appearing in part 2800 apply to this part. In addition, as used in this
part, the term:
(a) Act means section 28 of the Mineral Leasing Act of 1920, as
amended (30 U.S.C. 185).
(b) Agency head means the head of any federal department or
independent federal office or agency, other than the Secretary of the
Interior, who has jurisdiction over federal lands.
(c) Casual use means activities and practices which do not
ordinarily cause any appreciable disturbance or damage to the public
lands, resources or improvements and which do not require a right-of-
way grant or temporary use permit under this title. Example: activities
which do not involve the use of explosives or heavy equipment and which
do not involve vehicle movement, except over already established roads
and trails.
(d) Federal lands means all lands owned by the United States,
whether surface or mineral estate or both, without reference to how the
lands were acquired or what federal agency manages the lands, except
lands in the National Park System, lands held in trust for an Indian or
Indian tribe, lands managed by the Tennessee Valley Authority, and
lands on the Outer Continental Shelf.
(e) Field examination generally means a one-day trip, in one
vehicle, from the office to the site of the right-of-way proposal,
regardless of the number of specialists traveling in the vehicle. When
operational efficiency dictates separate trips, BLM will include the
efficient use of hourly time required to verify or collect the data
needed to process the application, or monitor the grant.
(f) Oil and gas means oil, natural gas, synthetic liquid, or
gaseous fuels, or any refined product produced from them.
(g) Pipeline means a line traversing 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 his lease.
(h) Pipeline system means all facilities, whether or not located on
federal lands, used by a holder in connection with the construction,
operation, maintenance, or termination of a pipeline.
[[Page 32139]]
(i) Production facilities means a lessee's or lease operator's
pipes and equipment used on the leasehold to aid in extracting,
processing, and storing oil and gas. The term includes:
(1) Storage tanks and processing equipment;
(2) Gathering lines upstream from such tanks and equipment, in the
case of gas, upstream from the point of delivery; and
(3) 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.
(j) Related facilities means those structures, devices,
improvements, and sites, the substantially continuous use of which is
necessary for the operation or maintenance of a pipeline, which are
located on federal lands, and which are authorized under the Act,
including but not limited to: supporting structures; airstrips; roads;
campsites; pump stations, including associated heliports, structures,
yards, and fences; valves and other control devices; surge and storage
tanks; bridges, monitoring, and communication devices and structures
housing them; terminals, including structures, yards, docks, fences,
and storage tank facilities; retaining walls, berms, dikes, ditches,
cuts and fills; structures and areas for storing supplies and
equipment. Related facilities may be connected or not connected or
contiguous or not contiguous to the pipe.
(k) Temporary use permit means a revocable nonpossessory privilege
to use specified federal lands near a right-of-way to construct,
operate, maintain, or terminate a pipeline or to protect the natural
environment and public safety.
Sec. 2881.7 What is the scope of these regulations?
The regulations in this part apply to:
(a) Issuing, administering, amending, assigning, renewing, and
terminating new or existing grants and temporary use permits for
pipelines to transport oil, natural gas, synthetic liquid or gaseous
fuels, or any refined product produced from these materials. They apply
when the federal land involved is either under the jurisdiction of BLM
or under the jurisdiction of more than one federal agency;
(b) Facilities on a federal oil and gas lease owned by a third
party, who is not the lessee or lease operator, and oil and gas
pipeline systems owned by the lessee or lease operator that are
downstream from storage tanks or a metering device; and
(c) All grants and permits BLM previously issued under section 28
of the Act and to those issued by the Secretary of the Interior or his
delegate in connection with the Trans-Alaska Oil Pipeline System.
Sec. 2881.8 What grants are not covered by these regulations?
The regulations in this part do not apply to:
(a) Federal land which is under the jurisdiction of a single
federal department or agency, including bureaus, and agencies within
the Department of the Interior, other than BLM;
(b) Right-of-way grants for federal departments or agencies. Such
grants are subject to the regulations at part 2800 of this chapter;
(c) Production facilities owned by an oil and gas lessee or lease
operator, if within the federal oil and gas lease, because the lease
authorizes these facilities; and
(d) Grants issued under the authority of the Federal Land Policy
and Management Act of 1976, which are addressed under part 2800 of this
chapter.
Sec. 2881.9 Does BLM have the authority to ask me for the information
required in these regulations?
(a) Yes. The Office of Management and Budget has approved the
information collection requirements contained in Part 2880 under
clearance 44 U.S.C. 3507 and assigned clearance number 1004-0060 (for
Form SF-299) and 1004-______ to them. BLM collects the information to
determine if using particular parcels of the public lands for right-of-
way corridors is appropriate. You must respond to get a benefit.
(b) Send comments regarding any aspect of the information
collection, including suggestions for reducing the collection burden,
to the Information Collection Clearance Officer, Bureau of Land
Management, 1849 C St., N.W., Mail Stop 401 LS, Washington, D. C.
20240.
Sec. 2881.10 Severability.
If any provisions of the rules in this part or their applicability
to any person or circumstances are held invalid, the remainder of these
rules and their applicability to other people or circumstances shall
not be affected.
Subpart 2882--What Lands Are Available for MLA Grants and Permits?
BLM uses the same criteria to determine whether lands are available
for oil and gas rights-of-way as it does to determine whether lands are
available for other rights-of-way. (See subpart 2802, part 2800, of
this chapter.) Where the proposed right-of-way involves additional
federal lands or lands managed by two or more agencies other than BLM,
such lands may also be available for such grants.
Subpart 2883--What Qualifications Do I Need To Hold an MLA Grant or
Permit?
Sec. 2883.10 Who may hold a right-of-way grant under the MLA?
(a) To hold such a grant, you must be:
(1) Able to show that you are economically and technically capable
of constructing, operating, and maintaining the proposed facilities;
and
(2) A United States citizen; or
(3) An association of such citizens; or
(4) A corporation organized under the laws of the United States, or
of any state therein; or
(5) A state or local government.
Sec. 2883.11 Who is not eligible to hold an MLA right-of-way grant or
temporary use permit?
Aliens may not acquire or hold any direct or indirect interest in
MLA grants or temporary use permits, except as otherwise provided by
treaty or similar agreement.
Sec. 2883.12 How do I prove I meet the qualifications?
(a) If you are a private individual, BLM requires no proof of
citizenship with your application.
(b) If you are a partnership, corporation, association, or other
business entity, submit the following information in your application:
(1) The identity of the participants in the business entity;
(2) The name, address, and citizenship of each participant
(partner, associate, or other);
(3) If a corporation, the name, address, and citizenship of each
shareholder owning 3 percent or more of each class of shares, together
with the number and percentage of any class of voting share of the
entity which each shareholder is authorized to vote; and
(4) If a corporation, the name and address of each affiliate
controlling or controlled by the entity, either directly or indirectly.
Where the corporation controls an affiliate, disclose the number of
shares and the percentage of each class of voting stock of the
corporation owned, directly or indirectly, by the affiliate.
(c) If you already have supplied this information to BLM and the
information remains accurate, you need only reference the serial number
under which it is filed.
[[Page 32140]]
Sec. 2883.13 What happens if BLM issues me an MLA grant or permit and
later determines that I am not qualified to hold it?
BLM will terminate your grant or permit, subject to your right of
appeal to the Interior Board of Land Appeals under part 4 of this
title.
Subpart 2884--How Do I Apply for an MLA Grant or Permit?
Sec. 2884.10 What should I do before I file my application?
(a) When you determine that an oil and gas pipeline project would
cross lands under BLM jurisdiction or under the jurisdiction of two or
more federal agencies, you should notify BLM or the Secretary of the
Interior.
(b) Before filing an application with BLM, you are strongly
encouraged to visit or telephone the BLM field office having
jurisdiction over the lands affected by your application to identify
potential routing and other constraints, determine whether or not the
lands are located within a designated or existing right-of-way
corridor, tentatively schedule the processing of your application, get
information about qualifications for MLA grants and permits, and
identify any work which will require obtaining one or more temporary
use permits. BLM may share this information with federal, state, and
local government agencies to ensure that these agencies are aware of
any authorizations you may need from them.
Sec. 2884.11 What information do I need to provide in my application?
(a) File your application on Form SF-299 or as part of an
Application to Drill or Sundry Notice. Include a complete description
of the project, including the exact diameters and locations of the
pipelines, proposed construction techniques, and the estimated life of
the facility. Simultaneously file any applications with other federal
agencies, such as the Federal Energy Regulatory Commission, for
licenses, certificates, or other authorities involving a right-of-way
with your application to BLM.
(b) BLM may request you to submit additional information beyond
that required in the form to assist in processing your application.
This information may include the following:
(1) Any federal and state approvals required for the proposal,
(2) A description of the alternative route(s) and mode(s)
considered when developing the proposal,
(3) Copies of or reference to similar applications or grants you
have submitted or hold,
(4) A statement of need and economic feasibility,
(5) A statement of the environmental, social and economic effects
of the proposal, and
(6) Your technical and financial capabilities to implement the
project.
(c) Before BLM reviews your request for a grant or grant renewal,
you must submit the following information and material:
(1) Conditions for, and agreements among, owners or operators to
add pumping facilities, looping, or otherwise to increase the pipeline
or terminal's throughput capacity in response to actual or anticipated
increases in demand;
(2) Conditions for adding or abandoning intake, offtake, or storage
points or facilities;
(3) Minimum shipment or purchase tenders;
(4) Evidence of your technical and financial capabilities to
implement the project; and
(5) Other information necessary to process your application.
(d) Should conditions or information change, promptly notify BLM
and make the necessary changes to your application. Failing to do so
may result in BLM's rejecting or revoking your application.
Sec. 2884.12 Is there a filing fee for my application?
(a) Yes. You must file a non-refundable processing fee with the
application. The fee reimburses BLM for the costs of processing your
application, including the costs of preparing any report or documents
required by the National Environmental Policy Act, 42 U.S.C. 4321 et
seq.
(b) BLM categorizes applications according to the following
criteria:
(1) Category I. Either BLM has on hand or you supply the data
necessary to process your application; neither a field examination nor
land use plan amendment is needed; and the estimated processing time
does not exceed 24 work hours for all BLM personnel involved in
reviewing the application. Cost: Refer to the MLA fee schedule,
available from any BLM field office.
(2) Category II. Same as Category I, plus one field examination is
needed to verify existing information; and the estimated processing
time, including the time required to conduct the field exam, falls
between 25 and 36 work hours for all BLM personnel involved in
reviewing the application. Cost: Refer to the MLA fee schedule,
available from any BLM field office.
(3) Category III. Category I, plus two field examinations are
needed to verify existing information; and the estimated processing
time, including the time required to conduct the field exams, falls
between 37 and 50 work hours for all BLM personnel involved in
reviewing the application. Cost: Refer to the MLA fee schedule,
available from any BLM field office.
(4) Category IV. Original data must be collected; a plan amendment
may be needed; two or more field examinations are needed; and the
estimated processing time, including the time required for the field
exams, is more than 50 work hours for all BLM personnel involved in
reviewing the application. Cost: Full actual costs.
(5) Master agreement. Instead of one of categories I through IV,
you may enter into an agreement with BLM to fully reimburse BLM for
actual processing costs. The agreement should be written to include any
applications you may subsequently file within the same area.
(c) The costs for Categories I, II, and III are contained in a fee
schedule that BLM maintains. BLM updates these fees each calendar year,
based on the previous year's change in the Implicit Price Deflator-
Gross Domestic Product, measured second quarter to second quarter. BLM
will round changes to the nearest dollar. You may obtain a copy of the
revised schedule from any BLM State or Field Office or by writing:
Director, BLM, 1849 C St., N.W., Mail Stop 1000 LS, Washington, D. C.
20240. BLM will post the schedule to the BLM National HomePage on the
internet, at http://www.blm.gov.
(d) After initially reviewing your application, BLM will determine
the category based on estimated costs of processing the application.
BLM will give you a written decision as to the processing category, and
you must submit the payment before BLM begins processing your
application. You may appeal the decision determining the category under
part 4 of this title.
(e) If you overpay processing costs, BLM will refund you the amount
that you overpaid and adjust your next bill or, if you request it in
writing, apply the overpayment to rentals or monitoring costs.
(f) BLM may change the processing cost category to Category IV
while processing your application if preparing an environmental impact
statement becomes necessary. BLM will send you a written decision of
the change and you may appeal this decision under part 4 of this title.
While your appeal is pending, BLM will not process your application
unless you have paid the processing fee.
(g) If you have a grant or permit relating to the Trans-Alaska
Pipeline System, BLM will send you a written
[[Page 32141]]
statement of reimbursable costs by the sixtieth day after the close of
each quarter. Quarters end on the last day of March, June, September,
and December.
Sec. 2884.13 What is a master agreement and what must it contain?
(a) See paragraphs (a) and (b) of Sec. 2804.17 of this chapter for
information about specifications and requirements for master
agreements.
(b) Your signature on a master agreement constitutes your agreement
with the category determination.
Sec. 2884.14 Are there any special payment requirements related to
Category IV applications?
Yes. If you have a Category IV application, you must also:
(a) Reimburse the United States for the full actual administrative
and other costs of processing the application and monitoring the grant.
BLM will credit your application processing fee toward your total cost
reimbursement obligation; and
(b) For additional information, see Sec. 2804.16 of this chapter.
Sec. 2884.15 What happens if there are two or more competing
applications for the same pipeline facility or system?
If this happens,
(a) Categories I through III: You must reimburse BLM for processing
costs as if the other application had not been filed.
(b) Category IV: You are responsible for the costs identifiable
with your application. If BLM cannot readily separate costs, such as
costs associated with preparing environmental documents, you must pay
an equal share or a proportion agreed to in writing among all
applicants and BLM. BLM will not do any work without an advance
payment.
(c) Who determines whether competition exists. BLM will determine
whether or not the applications for right-of-way grants are part of one
right-of-way system or are competing applications for the same system.
(d) Liability. Each applicant is jointly and severally liable for
costs of processing the application for the entire system.
Sec. 2884.16 Where do I file my application for an MLA grant or
permit?
(a) If BLM has exclusive jurisdiction over the lands involved, file
your application with the appropriate BLM State Office.
(b) If another federal agency has exclusive jurisdiction over the
land involved, file your application with that agency and refer to
their regulations for information about their requirements.
(c) If there are no BLM lands involved but the lands are under
multiple federal jurisdiction, you may file your application with any
BLM office in the vicinity of the project. BLM will notify you where to
direct future communications about the project. See also Sec. 2804.11
of this chapter.
(d) If several federal agencies, including BLM, have jurisdiction,
file your application at the most convenient BLM office having
jurisdiction over a portion of the federal lands. BLM will notify you
where to direct all future communications concerning the project. See
also Sec. 2804.11(a) of this chapter.
Sec. 2884.17 What are the public notification requirements for my
application?
(a) When BLM receives your application, it will publish a notice in
a general circulation newspaper in the vicinity of the lands involved
and in the Federal Register. BLM may not publish this notice for
pipeline projects which it believes will have only minor impacts. The
notice will contain:
(1) A description of the pipeline systems and such other
information as BLM considers pertinent, and
(2) A statement of where the application and related documents are
available for interested persons to review.
(b) BLM will send copies of the notice for review and comment to
the:
(1) Governor of each state within which the pipeline system may be
located, and
(2) Head of each local government or jurisdiction within which the
pipeline system may be located.
(c) BLM will also refer the application to the:
(1) Heads of other federal agencies whose jurisdiction includes
areas through which the right-of-way would cross, for consultation and
other purposes; and
(2) House Committee on Interior and Insular Affairs and the Senate
Committee on Energy and Natural Resources, if your application involves
a pipeline that is 24 inches or more in diameter.
(d) BLM may hold public meetings on your application if there is
sufficient interest to warrant the time and expense of such meetings.
BLM will publish a notice of any such meetings in the Federal Register
or in local newspapers.
Sec. 2884.18 How will BLM process my application?
BLM processes all applications for right-of-way grants and
temporary use permits in the manner described at Sec. 2804.20 of this
chapter. The customer service standard, described in Sec. 2804.20(c) of
this chapter, applies to processing MLA applications.
Sec. 2884.19 Can BLM ask me for additional information?
(a) Yes. BLM may ask you for additional information in order to
process your application. This may include, among other information, a
detailed construction, operation, rehabilitation, and environmental
protection plan, a Plan of Development, and a cultural resources
inventory.
(b) If BLM needs more information, we will provide you with a
written request and give you a written notice of any deficiencies in
the information that you provided and any additional information that
BLM needs. You will have a reasonable opportunity to file corrections.
(c) BLM may also ask other federal agencies for additional
information, for conditions or stipulations which the grant should
contain, and for advice as to whether or not to issue the grant.
Sec. 2884.20 Can BLM reject my application?
Yes. See Sec. 2804.22 of this chapter.
Sec. 2884.21 Do I owe any money if BLM rejects my application or if I
withdraw my application?
Yes. See Sec. 2804.23 of this chapter. You owe the actual amount,
as opposed to a reasonable amount, that BLM expends in processing your
application.
Sec. 2884.22 What may I do on the land while BLM is processing my
application?
You may not conduct any activities other than casual use on the
lands under application. You must get prior approval from BLM before
conducting any activities that are not casual use.
Sec. 2884.23 When will BLM issue the grant or permit?
If the grant involves:
(a) A pipeline 24 inches or more in diameter, BLM will not issue or
renew the grant until after we notify the Congress;
(b) Lands not under BLM jurisdiction, BLM will not issue or renew
the grant or permit until the heads of the other agency or agencies
involved have concurred;
(c) Lands managed by several federal agencies, including BLM, BLM
will not issue or renew the grant or permit until the Secretary of the
Interior has consulted with these agencies. BLM may issue or renew the
grant or permit without their concurrence, but not through lands within
a federal reservation, if doing so would be inconsistent with the
purposes of the reservation; and
[[Page 32142]]
(d) Lands managed by BLM, we will issue or renew the grant or
permit when we approve your application.
Subpart 2885--What Are the Terms and Conditions of MLA Grants and
Permits?
Sec. 2885.10 When is the MLA grant or permit effective?
See Sec. 2805.11 of this chapter.
Sec. 2885.11 What are the terms and conditions of the grant or permit?
The general provisions at Secs. 2805.10, 2805.12, and 2805.13 of
this chapter apply. In addition, an MLA grant or permit contains the
following requirements:
(a) How long you may use the grant or permit. Each grant will have
a specific time limit, not to exceed 30 years. BLM will consider the
following factors in establishing the time limit:
(1) Cost of the facility,
(2) Its useful life,
(3) The public purpose served, and
(4) Any potentially conflicting land uses.
(b) Terms and conditions of use. By accepting the grant or permit,
you agree to comply with and be bound by its terms and conditions and
by the regulations in subpart 2805, part 2800, of this chapter, the
regulations in this part, and applicable laws. You must comply with the
terms and conditions found at Sec. 2805.10(c) of this chapter. In
addition, you must:
(1) Construct, operate, and maintain the pipeline system, or a
logical part of the system of which this pipeline right-of-way is a
part, as BLM determines, as a common carrier. This means that you and
your operators and joint owners must accept, convey, transport, or
purchase all oil and gas delivered to the pipeline system without
regard to where the oil and gas was produced, i.e., whether on federal
or non-federal lands. See paragraph (c) of this section for the
exception;
(2) Within 30 days after BLM requests it, file rate schedules and
tariffs for oil and gas, or derivative products, transported by the
pipeline system as a common carrier with the agency prescribed by the
authorized officer, and provide proof to BLM that you have made the
required filing;
(3) With certain exceptions, not export domestically produced crude
oil without Presidential approval (30 U.S.C. 185 and 50 U.S.C. 2401);
(4) Not exceed a right-of-way width of 50 feet plus the ground
occupied by the pipeline and related facilities without BLM's written
authorization;
(5) Not use the grant area for any use other than that authorized
by the grant. If other pipelines or looping lines are required, first
secure BLM's written authorization for the activity; and
(6) If appropriate, not construct or use the land until you submit
to BLM a detailed construction, operation, rehabilitation, and
environmental protection plan and receive a notice to proceed.
(c) The common carrier provisions of paragraph (b)(1) of this
section do not apply to natural gas pipelines subject to regulation
under the Natural Gas Act or by state or municipal agencies with the
authority to set rates and charges for the sale of natural gas to
consumers within the state or municipality.
(d) BLM may require you to certify that you have a surety bond or
other acceptable security to cover any losses, damages, or injury to
human health, the environment, or property resulting from or related to
your activities on the right-of-way. Liability coverage includes
potential damages or injuries resulting from actual or threatened
discharges or releases of hazardous materials. Based on changes in
conditions or risk and your record of compliance, BLM may require a
decrease or increase in the amount of your security.
Sec. 2885.13 How much does it cost to hold a grant or permit?
In addition to the cost reimbursement requirements described at
Sec. 2883.13(a) you must pay rent and monitoring costs.
(a) Rents. The provisions for paying rents for MLA grants are the
same as those for other grants, as given at Secs. 2806.14, 2806.16, and
2806.28 of this chapter, except that you must always pay full rent.
There are no reductions or waivers to paying rents for MLA grants.
(b) Monitoring costs. You must reimburse BLM for any costs we incur
in monitoring your construction, operation, maintenance, and
termination within grant areas and in protecting and rehabilitating the
affected area. There are no exceptions to paying monitoring costs. BLM
uses the same category for monitoring as it does for determining
processing costs for each application. (See paragraphs (c) and (d) of
this section.) As with the application processing costs (see
Sec. 2884.12), BLM updates this schedule annually, based on the
previous year's change in the Implicit Price Deflator-Gross Domestic
Product, second quarter to second quarter. BLM rounds these changes up
to the nearest dollar. The monitoring cost schedule is available from
any BLM State or field office or by writing: Director, Bureau of Land
Management, 1849 C St., N.W., Mail Stop 1000LS, Washington, D.C. 20240.
BLM will post this schedule to the BLM Homepage on the Internet, http:/
/www.blm.gov.
(c) Categories I through III. For Categories I through III, you
must submit monitoring fees with your written acceptance of the terms
and conditions of the grant. BLM will not accept your written
acceptance of the grant until you pay the fees.
(d) Category IV. For Category IV monitoring costs and project
agreements, you must submit your written acceptance of the terms and
conditions of the grant and the estimated costs of BLM's administering
and monitoring your grant. You must periodically pay the estimated
costs in advance. If your payments exceed the actual cost, BLM will
reimburse you the difference or adjust the next billing to reflect the
overpayment.
Sec. 2885.14 Who is liable for payments?
See subpart 2804, part 2800, of this chapter.
Sec. 2885.15 What happens if I default on my rental and other
payments?
See Sec. 2806.12 of this chapter.
Subpart 2886--What Can I Do Once I Get My MLA Grant or Permit?
Sec. 2886.10 When can I start activities under my grant or permit?
See Sec. 2807.10 of this chapter. Before you begin operations, you
must send BLM a certification of construction, verifying that the
pipeline system has been constructed and tested according to the terms
of the grant or permit and is in compliance with all required plans,
specifications and provisions of federal and state laws and
regulations.
Sec. 2886.11 Who regulates my activities?
The head of the agency having administrative jurisdiction over the
federal lands involved has the authority to regulate your activities,
unless BLM and the agency head reach another agreement.
Sec. 2886.12 What happens if I need a wider right-of-way in limited
areas?
You may apply to BLM for a wider right-of-way in limited areas to
operate and maintain the pipeline after you construct it, protect the
environment, or provide for public safety. BLM will send you a written
report of its findings, either authorizing or disapproving your request
for a wider right-of-way.
Sec. 2886.13 When must I contact BLM?
See Sec. 2807.11 of this chapter.
[[Page 32143]]
Sec. 2886.14 When can BLM suspend my activities?
See Sec. 2807.15 of this chapter. The same provisions apply to
temporary use permits issued under this part.
Sec. 2886.15 For what am I liable?
See Sec. 2807.12 of this chapter.
Sec. 2886.16 What happens if BLM transfers management of the land on
which my grant or permit is located to another agency or outside public
ownership?
See Sec. 2807.14 of this chapter. The same provisions apply to
temporary use permits issued under this part.
Sec. 2886.17 When can BLM suspend or terminate temporary use permits?
(a) BLM can suspend or terminate your temporary use permit when it
determines that you have:
(1) Not complied with any term, condition, or stipulation in the
grant or with applicable laws or regulations; or
(2) Deliberately failed to use the grant for the purpose for which
BLM issued it; or
(3) Abandoned the grant.
(b) BLM will send you a written notice of non-compliance. You may
file a written request to the next higher level of authority asking for
a review of the notice. BLM will notify you within 10 working days of
receipt of the request. BLM will review the situation that prompted the
notice and provide you with a written determination of our findings
within a reasonable period of time.
(c) If the decision is adverse to you, you may appeal it under part
4 of this title.
Sec. 2886.18 When can BLM suspend or terminate my grant or permit?
(a) If BLM determines your activities are endangering public
health, safety or the environment, we may order you to suspend those
activities immediately and to take immediate remedial action. BLM may
give this order orally or in writing to you, your representative, or a
contractor or subcontractor doing work for you, whether or not any
action is being taken by other federal or state agencies. The activity
must cease immediately. If BLM gives you the order orally, we will
follow up as soon as practicable with a written notice.
(b) In cases where public health, safety, or the environment are
not being endangered, BLM will give you written notice when we intend
to suspend or terminate your grant. BLM will refer the matter to the
Office of Hearings and Appeals. An Administrative Law Judge in the
Office of Hearings and Appeals will determine when grounds for
suspension or termination exist, according to the regulations set out
in part 4 of this title. The Administrative Law Judge's decision
determines BLM's action on whether or not to suspend or terminate the
grant or permit.
Sec. 2886.19 What happens to any improvements on my grant when it
terminates?
See Sec. 2807.18 of this chapter.
Subpart 2887--What Information Do I Need To Know If I Want to
Amend, Assign, or Renew My MLA Grant?
Sec. 2887.10 What conditions require amending a grant?
(a) You must apply for an amendment when you want to change the
route of your pipeline or your use of the federal lands. You must apply
for an amendment under the provisions of Sec. 2807.19 of this chapter.
Any unauthorized activity may be subject to prosecution under the
applicable laws or to trespass charges under the provisions of subpart
2888 of this chapter.
(b) If you hold a pipeline grant issued before November 16, 1973,
and there is a change in the pipeline route or your use of the federal
lands, you must apply for a new right-of-way grant under the Act, as
amended.
(c) BLM may ratify or confirm a grant that was issued under any
provision of law if we can modify the grant to comply with the
provisions of the Act and regulations. BLM and you must jointly approve
any modifications.
Sec. 2887.11 May I assign my grant?
(a) Yes. You may assign a grant in whole or in part, if BLM
approves your request.
(b) If you want to assign your grant, the proposed assignee must
file an application under the same procedures as for a new grant. (See
subpart 2884 of this part.)
(c) Additionally, the request for assignment must include the
following:
(1) Documentation that you, the assignor, agree to the assignment;
and
(2) A stipulation that the assignee agrees to comply with and to be
bound by the terms and conditions of the grant to be assigned.
(d) BLM will not recognize an assignment until it approves the
assignment in writing. BLM may modify or add bonding and other
requirements, including additional terms and conditions, to the grant
when approving the assignment.
(e) The processing time and conditions for original applications,
as described at Sec. 2804.19(c) of this chapter, apply to processing
applications for assignments.
Sec. 2887.12 May I renew my grant?
(a) Yes, except for those cases where a grant has terminated by its
own terms. BLM will renew the grant if the pipeline is being operated
and maintained in accordance with all provisions of the right-of-way
grant, the regulations in this part and the Act. If your grant has
terminated, you must apply for a new grant under the procedures
described at subpart 2884 of this part.
(b) BLM may modify the terms and conditions of the grant at the
time of renewal, and you must pay in advance for the administrative
costs of processing the request.
(c) The time and conditions for processing applications for rights-
of-way, as described at Sec. 2804.19(c) of this chapter, apply for
applications for renewals.
Subpart 2888--What Do I Need To Know About Trespass?
See subpart 2808, part 2800, of this chapter.
[FR Doc. 99-14588 Filed 6-14-99; 8:45 am]
BILLING CODE 4310-84-P
