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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-06997

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** April 12, 2024
- **Citation:** 89 FR 25922

## Text

DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 2800, 2860, 2880, and 2920
[BLM_HQ_FRN_MO4500175819]
RIN 1004-AE60
Update of the Communications Uses Program, Cost Recovery Fee Schedules, and Section 512 of FLPMA for Rights-of-Way

AGENCY:

Bureau of Land Management, Interior.

ACTION:

Final rule.

SUMMARY:

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

DATES:

The final rule is effective on May 13, 2024.

FOR FURTHER INFORMATION CONTACT:

Stephen Fusilier, Branch Chief, Rights-of-Way, telephone: 202-309-3209, email:
sfuslie@blm.gov,
or by mail 1849 C St. NW, Washington, DC 20240, for information regarding the substance of this final rule.

Individuals in the United States who are deaf, blind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States. For a summary of the final rule, please see the final rule summary document in docket BLM-2022-0002 on
www.regulations.gov.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

II. Background

III. Section-by-Section Discussion

IV. Procedural Matters

I. Executive Summary

This final rule addresses three distinct areas: communications uses; cost recovery; and operations, maintenance, and fire prevention plans for powerline ROWs. The final rule revises certain regulatory provisions related to communications use ROWs authorized under FLPMA. The BLM administers approximately 1,500 communications sites on BLM lands. By making it easier for industry to collocate in and on existing communications facilities or build out new communications infrastructure on public lands, the BLM can play a strong role in increasing connectivity throughout the United States. The communication uses portion of the final rule:

• Requires the BLM to grant or deny communications uses ROW, easement, or lease applications within 270 days;

• Provides for electronic filing of communications uses ROW applications; and

• Requires Standard Form-299 (SF-299) as the common form for communications uses grant applications.

The final rule changes the cost recovery fee schedule for ROWs authorized under Title V of FLPMA or the Mineral Leasing Act of 1920, as amended (MLA), as well as for land use authorizations under Title III of FLPMA. Though FLPMA and the MLA authorize cost recovery for costs associated with processing, monitoring, and terminating ROWs, the current cost recovery fees for minor ROWs requiring less than 50 hours of work do not cover the BLM's actual costs. The cost recovery portion of the final rule:

• Increases the cost recovery fees for minor ROWs; and

• Expands the definition of minor ROWs to those requiring less than 64 hours of work.

The final rule also adds provisions consistent with section 512 of FLPMA, including section 512(b)(1), which directs the BLM “[t]o enhance the reliability of the electric grid and reduce the threat of wildfire damage to, and wildfire caused by vegetation-related conditions within, electric transmission and distribution ROWs . . . including hazard trees.” The portion of the final rule implementing section 512 of FLPMA:

• Includes provisions governing operations, maintenance, and fire prevention plans and agreements for vegetation and facility management on public lands within powerline ROWs;

• Adds a definition of hazard tree consistent with the United States Forest Service's definition; and

• Includes emergency access provisions.

II. Background

The subject matter of this rule is the BLM's ROW program under 43 CFR parts 2800 and 2880, land use authorizations under part 2920, and communications uses under newly established part 2860.

For the reader to better understand the following discussion, a “grant,” as defined in 43 CFR 2801.5, is any authorization or instrument (
e.g.,
easement, lease, license, or permit) the BLM issues under Title V of FLPMA. A “right-of-way” refers to the public lands that the BLM authorizes a holder to use or occupy under a particular grant.

This final rule covers three distinct topics. The first topic is communications uses. The second topic, cost recovery for the ROW program, addresses the reimbursement of costs, as authorized by FLPMA (43 U.S.C. 1701
et seq.
) and the MLA (30 U.S.C. 185
et seq.
), for the Federal Government's expenses in undertaking ROW work. The third topic is implementation of Section 512 of FLPMA (43 U.S.C. 1772) and addresses the risk of fires from powerline ROWs on public lands.

A. Communications Uses

In the 21st century, broadband is just as vital to the public as roads and bridges, electric lines, and sewer systems. At the community level, an advanced telecommunications network is critical for supporting growth, allowing small businesses to flourish, creating jobs, strengthening the first-responder network in remote areas, and making it possible to remain competitive in the information-age economy. At the individual level, access to broadband—and the expertise to use it—opens the door to employment opportunities, educational resources, health care information, government services, and social networks.

Although there have been great strides in expanding broadband services in the United States over the past several years, rural and Tribal areas lag behind in broadband deployment. Successive Presidential administrations and Congress have made it a priority to bring affordable, reliable, high-speed broadband to every American, including the more than 35 percent of rural Americans who lack access to broadband at minimally acceptable speeds. E.O. 13821, issued on January 8, 2018, promotes better access to broadband internet service in rural America. It states that “Americans need access to reliable, affordable broadband internet service to succeed in today's information-driven, global economy” and establishes a policy “to use all viable tools to accelerate the deployment and adoption of affordable, reliable, modern high-speed broadband connectivity in rural America, including rural homes, farms, small businesses, manufacturing, and production sites,

tribal communities, transportation systems, and healthcare and education facilities.”

On January 8, 2018, in association with the release of E.O. 13821, a Presidential Memorandum (Memorandum) entitled “Supporting Broadband Tower Facilities in Rural America on Federal Properties Managed by the Department of the Interior” stated an executive branch policy to make Federal assets more available for rural broadband deployment, with due consideration for national security concerns. The Memorandum directed the Secretary of the Interior to “develop a plan to support rural broadband development and adoption by increasing access to tower facilities and other infrastructure assets managed by the Department of the Interior” and “identify[ ] the assets that can be used to support rural broadband deployment and adoption.”

As the land management agency with the responsibility to manage the largest inventory of public land in the Federal Government, the BLM is promulgating this rule to amend regulatory provisions for the processing and monitoring of ROWs for communications uses. Communications companies, cooperatives, other private entities, and government agencies ultimately make decisions on locations to construct and/or upgrade broadband infrastructure, from communications towers to linear ROWs for fixed terrestrial broadband access. However, the Department administers a significant amount of land as well as existing permitted infrastructure that can be leveraged for increased connectivity in rural America. Currently, there are approximately 1,500 communications sites on BLM lands. By making it easier to collocate in and on existing communications facilities or build out new communications infrastructure on public lands, this rule will help to increase connectivity throughout the United States. Communications uses, including fiber optic and telephone, may be collocated within the 6,000 miles of energy corridors administered by the BLM and the U.S. Forest Service (USFS).

Newly established Part 2860 of this rule consolidates and revises the existing regulations pertaining to communications uses to streamline processes and establish new customer service standards. The rule also proposes several technical changes to clarify the communications regulations.

This rule incorporates the new timing requirements established by the MOBILE NOW Act into the BLM's regulations. As amended by the MOBILE NOW Act, 47 U.S.C. 1455(b)(3)(A) states: “Not later than 270 days after the date on which an executive agency receives a duly filed application for an easement, right-of-way, or lease under this subsection, the executive agency shall—(i) grant or deny, on behalf of the Federal Government, the application; and (ii) notify the applicant of the grant or denial.” E.O. 13821 states, “Federal property managing agencies shall use the GSA [General Services Administration] Common Form Application for wireless service antenna structure siting developed by the [GSA] Administrator for requests to locate broadband facilities on Federal property.” The MOBILE NOW Act also requires the use of a common form for all applications for communications facilities. The BLM provides Standard Form (SF)-299 for applicants seeking authorization for such purposes on public lands. The GSA, through collaboration with other agencies, decided the SF-299 would be the common form for Federal authorization of communications uses. This rule requires use of the SF-299 for all communications uses grants, thereby making the regulations consistent with the MOBILE NOW Act. By updating these regulations, the BLM will improve response times and address the current lack of certainty in the communications uses grant process that impacts industry construction schedules and may increase construction costs.

B. Cost Recovery

Typically, unless exempt, an applicant must reimburse the BLM for its reasonable costs incurred in processing and monitoring a FLPMA ROW activity. Both FLPMA and the MLA authorize the Federal Government to collect fees, called cost recovery, for the reimbursement of costs that it expends in processing a ROW application, taking administrative actions, or monitoring the construction, operation, and termination of a facility authorized by a grant. The Federal Government collects cost recovery before the BLM begins tasks related to a ROW application or other ROW-related activity.

In 2005, the BLM completed regulations, found in 43 CFR parts 2800 and 2880, that established a cost recovery processing and monitoring fee schedule for ROW applications and grants and an annual process whereby the BLM updates the schedule to account for changes in the Implicit Price Deflator Gross Domestic Product (IPD-GDP). The IPD-GDP measures annual changes in the prices of goods and services produced in the United States. The existing regulations also require the BLM to reevaluate its cost recovery fees for each cost recovery category, and the categories themselves, within 5 years after their effective date and at 10-year intervals thereafter (43 CFR 2804.15 and 2884.15). The BLM completed its initial cost recovery reevaluation in December 2010 and has continued to evaluate data received through the end of FY 2020. These data show that the former cost recovery fee collections do not adequately cover the costs incurred by the BLM for processing and monitoring ROW applications and grants under both FLPMA and the MLA.

The final rule revises the existing cost recovery fee categories to better reflect updates in technology, the procedures for processing applications and monitoring grants, and statutes and regulations relating to the ROW program.

This rule also increases the cost recovery fees to better reflect the current costs of processing and monitoring minor category ROWs and updates the scope of the minor categories. Under the former rule, ROWs that took 50 hours or less for a BLM realty specialist to process were considered minor. Under the final rule, that processing time is increased to 64 hours. This will allow more applications to qualify for a minor category, thus eliminating the labor to establish, monitor, and maintain appropriate accounting of major category cost recovery accounts on those applications. The BLM believes this change will increase operational efficiency.

This rule also makes several technical changes to 43 CFR parts 2800 and 2880 that clarify and expedite other ROW tasks. It updates cost recovery processes for FLPMA ROW grants, MLA grants and temporary use permits (TUPs), and leases, permits, and easements issued under Title III of FLPMA. Finally, the existing ROW cost recovery fee structure is also applicable to leases, permits, and easements issued under Section 302(b) of FLPMA (43 U.S.C. 1732(b)) and 43 CFR part 2920. This rule revises the regulations for these authorizations, found in section 2920.8(b), to provide consistency with the revisions made to the cost recovery provisions in part 2800.

C. Section 512 of FLPMA

The BLM's mission is to sustain the health, diversity, and productivity of the public lands for the use and enjoyment of present and future generations. The BLM administers approximately 245 million surface acres. According to the National Interagency Fire Center (NIFC), approximately 109 million acres across

the United States (including both Federal and non-Federal lands) burned in wildfires between 2006 and 2020. Wildfire is a known risk to and from powerlines and may be caused by a variety of factors, including vegetation contacting live powerlines or structural failures of powerline infrastructure.

On March 23, 2018, Congress amended FLPMA by adding Section 512, entitled, “Vegetation Manag[e]ment, Facility Inspection, and Operation and Maintenance Relating to Electrical Transmission and Distribution Facility Rights of Way” (43 U.S.C. 1772). FLPMA Section 512 establishes requirements for the BLM and the USFS to develop and implement regulations to govern review and approval of operations, maintenance, and fire prevention plans and agreements for vegetation and facility management on public lands within powerline ROWs and on abutting Federal lands. To implement Section 512 of FLPMA on land managed by the USFS, the USFS published a final rule on July 10, 2020 (85 FR 41387), an amendment to the final rule on August 11, 2020 (85 FR 48475), draft policy on December 10, 2020 (85 FR 79463), and a final directive on February 10, 2022 (Forest Service Manual (FSM) 2700—Special Uses Management 2740—Vegetation Management Pilot Projects).

This final rule includes provisions to implement Section 512 on BLM-managed land, including provisions related to emergency conditions. This rule is consistent with the direction in Section 512(b)(1) of FLPMA that the BLM “enhance the reliability of the electric grid and reduce the threat of wildfire damage to, and wildfire caused by vegetation-related conditions within, electric transmission and distribution ROWs and abutting Federal land, including hazard trees.” To enhance electric reliability, promote public safety, and avoid fire hazards, this rule adds definitions for the terms “hazard tree” and “operating plan or agreement.” It also includes provisions pertaining to ROW administration to address fire risks on public lands, such as ensuring that operating plans and agreements provide for long-term, cost-effective, efficient, and timely inspection, operation, maintenance, and vegetation management of a ROW and on abutting Federal lands, including management of hazard trees. The final rule defines “hazard tree” consistent with the USFS's definition.

D. Legal Authority

Section 310 of FLPMA (43 U.S.C. 1740) authorizes the Secretary to promulgate regulations to implement the statute. FLPMA also provides comprehensive authority for the administration and protection of the public lands and their resources and directs that the public lands be managed “under principles of multiple use and sustained yield,” unless otherwise provided by law (43 U.S.C. 1732(a)). A similar authority for promulgating regulations to implement the MLA's pipeline ROW provisions is found at 30 U.S.C. 185(f).

Both FLPMA (43 U.S.C. 1734(b) and 1764(g)) and the MLA (30 U.S.C. 185(l)) authorize the BLM and other Federal agencies to require ROW applicants or holders to reimburse an agency for costs incurred processing a ROW application and inspecting and monitoring an authorized ROW.

The 2018 Consolidated Appropriations Act amended FLPMA by adding a new Section 512 (43 U.S.C. 1772), which directs the Secretary to promulgate regulations to implement the new section. The 2018 Act also included a provision titled the “Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless Act” or “MOBILE NOW Act,” which amended section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 (47 U.S.C. 1455). The MOBILE NOW Act imposes limits on the time to process ROW applications and requires the use of a common form for all applications to install, construct, modify, or maintain communications facilities (including broadband infrastructure) on federally owned lands.

E. Public Notice and Comments

The 60-day public comment period for the proposed rule, published November 7, 2022, at 87 FR 67306, ended on January 6, 2023. The comment period was re-opened and ended on January 23, 2023. During the comment period and government-to-government consultation with Tribes and Alaska Native Corporations, the BLM received 28 submissions, 18 of which were unique. Comments included submittals from the following entities: 1 Tribe, 1 Alaska Native Corporation, 7 companies and industry organizations, 3 governmental organizations, and 16 individual (including anonymous) submitters. In total, those submissions included 136 unique comments. Approximately half of the comment submissions were neutral in tone or expressed overarching support for the proposed rule, with the remaining comments expressing opposition to it. However, duplicate letters submitted as part of a form campaign accounted for approximately 60 percent of the submittals expressing general opposition.

All relevant comments are posted at the Federal eRulemaking portal:
http://www.regulations.gov.
To access the comments at that website, enter 1004-AE60 in the Search box. A few commenters provided comments that were outside the scope of the proposed rule, and the BLM is not addressing them in this final rule.

Comments regarding particular provisions of the final rule are addressed in the Section-by-Section Discussion below. Several comments regarding the rulemaking process are addressed in the Procedural Matters discussion below.

One commenter encouraged us to weigh comments more heavily from local communities. The BLM considers all comments and does not give more weight based on the identity of the commenter.

Two commenters requested the BLM work collaboratively with the USFS and industry to develop guidance and training programs that ensure consistent application and implementation of the rule. The BLM agrees that both agencies should continue to work together and with input from industry in these areas.

III. Section-by-Section Discussion

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

Part 2800 of title 43 of the Code of Federal Regulations describes requirements for ROWs issued under FLPMA. This rule revises the cost recovery fee schedule and its categories. The communications uses provisions found in this part have been either moved to new part 2860 or removed. Other minor modifications correct or clarify existing regulations.

Subpart 2801—General Information

Section 2801.2 What is the objective of the BLM's right-of-way program?

The rule adds the words “wherever practical” to the objective described in § 2801.2(c). This revision aligns the objective of promoting ROWs in common with the requirement described in Section 503 (43 U.S.C. 1763) of FLPMA.

Section 2801.5 What acronyms and terms are used in the regulations in this part?

The rule moves several terms associated with communications uses from § 2801.5 to the definitions section for a new part 2860, which specifically addresses communications uses. The rule also adds new definitions to

§ 2801.5. BLM is revising and republishing paragraph (b) of § 2801.5 (1) to decrease the likelihood of introducing errors, (2) improve efficiency during the publication process, and (3) meet Office of the Federal Register drafting and formatting requirements for publication. Unless explained elsewhere in this preamble as a change between the proposed and final rules, the individual (piecemeal) changes to the affected CFR units are detailed in the proposed rule, published on November 7, 2022, at 87 FR 67306.

The BLM received comments expressing confusion about the term “ancillary” as that term is used in various sections of the proposed rule. In response, the BLM added the term to this definition section of the final rule and, consistent with its usage of the term in the proposed rule, defined “ancillary” as a secondary use entirely within the scope of a primary authorization that solely supports the operations allowed by that primary authorization and that the holder does not make available to third parties through commercial sales.

As proposed, the term and a definition of “complete application” are also added to clarify that an application is only complete when it contains all necessary information found under § 2804.12 and when the BLM notifies the applicant that it is complete. This is an important clarification, because the BLM's customer service standards for processing applications apply only when an application is complete. This is consistent with existing BLM practice, and this rule clarifies this requirement. The final rule includes only minor, nonsubstantive changes to the definition that appeared in the proposed rule.

One commenter recommended that the BLM change the definition of “complete application” to provide for notification to the applicant if the application is not complete, as well as to reference section 2804.25(c). However, the BLM will maintain its existing definition of “complete application” and associated workflow. The BLM reviews the application casefile upon serialization and sends a deficiency letter to the applicant if initial deficiencies are identified. After interdisciplinary review, the BLM sends a deficiency letter if the interdisciplinary team determines additional pertinent information is missing. The BLM may send a deficiency letter at any point during the process if more information is needed per 43 CFR 2804.25(c). The BLM's current customer service standards and application processing workflow appear to address the commenter's requests so that no substantive revision of the rule is necessary.

The rule adds the term and a definition of “cost recovery” to clarify that it is a fee for the processing and monitoring associated with any proposed or authorized ROW. The final rule makes no changes to the definition that appeared in the proposed rule.

The rule adds the term and a definition of “exempt from rent” to clarify when an authorization is automatically exempt from rental. This definition is consistent with existing § 2806.14 and new § 2866.14. The final rule makes no changes to the definition that appeared in the proposed rule.

The rule revises the definition of the term “facility” by removing the last sentence. This part of the definition applied only to communications uses and was moved into new § 2861.5, which is the definitions section for the new part 2860 that has been added by this rule to consolidate provisions that address communications uses ROWs. The final rule makes no changes to the definition that appeared in the proposed rule.

Several commenters suggested that the BLM change the definition of hazard tree to conform with the USFS's definition so that the definition would: (1) explicitly refer to the different types of vegetation that create hazardous situations, consistent with the USFS's definition; and (2) apply to vegetation likely to come within the minimum vegetation clearance distance, in addition to vegetation likely to come within 10 feet of a powerline facility. Another comment requested modification of the rule to acknowledge that all vegetation with the capability of growing into a standardized clearance area at maximum growth potential will be removed, regardless of whether dead or likely to die. And another requested the BLM clarify how it interprets the hazard tree definition with respect to who can identify these trees and set occupational standards for their staff. Related to the definition of “hazard tree” and removal of vegetation from the ROW, the BLM received a comment requesting clarification of what constitutes routine maintenance of the ROW and whether routine maintenance requires prior BLM approval. Another comment stated that grant holders, not the BLM, should have discretion to determine what vegetation poses an imminent danger and should be treated as an emergency not requiring BLM approval prior to removal.

In response to these comments, the final rule revises the definition of “hazard tree” that appeared in the proposed rule by adopting the existing USFS definition and adds definitions of other terms used and defined in the USFS definition of “hazard tree” including “minimum vegetation clearance distance (MVCD),” “maximum operating sag,” “operating plan or agreement,” and “powerline facility.” These definitions apply in the limited context of powerline ROWs subject to § 2805.22 and will help holders of such ROWs understand what is required of them and what authorization their ROW provides. (See § 2805.22(b)(3)).

As commenters pointed out, the USFS's definition of “hazard tree” includes trees and non-tree vegetation that is “[l]ikely to cause substantial damage to the powerline facility; disrupt powerline facility service; come within 10 feet of the powerline facility; or come within the [MVCD] as determined in accordance with applicable reliability and safety standards, and as identified in the special use authorization for the powerline facility and the associated approved operating plan or agreement.” (36 CFR 251.51).

The “MVCD” is the calculated distance (stated in feet or meters) that is used to prevent flashover between conductors and vegetation for various altitudes and operating voltages. The MVCD is measured from a conductor's maximum operating sag to vegetation within and adjacent to the linear powerline ROW for purposes of felling or pruning hazard trees. The ROW holder uses this calculation to determine whether vegetation poses a system reliability hazard to the powerline facility. Although the proposed rule dealt with vegetation management generally, the term did not appear, and so was not defined, in the proposed rule. It appears in the final rule as a term used in the final rule's definition of “hazard tree.”

“Maximum Operating Sag” is the theoretical position of a conductor when operating at 100 degrees Celsius and must be accounted for when determining MVCD. Although the proposed rule dealt with vegetation management generally, the term did not appear, and so was not defined, in the proposed rule. It appears in the final rule as a term used in the final rule's definition of “hazard tree.”

In response to the comments about vegetation management, the final rule also adds a definition for the term “maintenance” that applies when that term is used to describe actions taken by holders of powerline ROWs. The term appeared, but was not defined, in the proposed rule. As with the final rule's

definition of “hazard tree,” the BLM is patterning the definition of “maintenance” after the USFS definition of that term in the same context of powerline ROWs. “Maintenance,” as it is defined in this final rule, encompasses and distinguishes between routine, non-routine, and emergency maintenance.

The rule replaces the term “monitoring” with “monitoring activities” and revises the definition of that term. “Monitoring activities” means those activities the Federal Government performs to ensure compliance with terms and conditions of a ROW grant. The definition also revises the explanation of the monitoring categories for consistency with the revisions made to § 2804.14(a). The final rule makes no changes to the definition that appeared in the proposed rule.

The rule adds the term and a definition of “operations and maintenance,” which includes activities conducted by a ROW holder to manage facilities and vegetation within and adjacent to the ROW boundary.

The final rule uses the term “operating plan or agreement” in place of “operations, maintenance, and fire prevention plan,” which was used in the proposed rule. “Operating plan or agreement” is a term used by USFS in its definition of “hazard tree.” Since the BLM adopted the USFS definition of “hazard tree” in this final rule, the BLM determined it would be clearer to use the USFS's term “operating plan or agreement” rather than “operations, maintenance, and fire prevention plan” as the definitions of the two terms were substantively the same. An “operating plan or agreement” is a plan (or agreement) submitted to the BLM by the holder of a ROW that describes how the holder plans to operate, maintain, and inspect the applicable ROW and facilities in a cost-effective, efficient, and timely manner to enhance electric reliability, promote public safety, and avoid fire hazards, including vegetation in or adjacent to the ROW.

The rule adds the term and a definition of “powerline facility.” Although the proposed rule dealt with facilities properly described as “powerline facilities,” the term did not appear and so was not defined in the proposed rule. It appears in the final rule as a term used in the final rule's definition of “hazard tree.” A “powerline facility” is one or more electric distribution or transmission lines authorized by a ROW grant and all appurtenances to those lines supporting conductors of one or more electric circuits of any voltage for the transmission of electric energy, overhead ground wires, and communications equipment that is owned by the ROW holder; that solely supports operation and maintenance of the electric distribution or transmission lines; and that is not leased to other parties for communications uses that serve other purposes.

The rule adds the term and a definition of “processing activities.” Processing activities are defined as work that the Federal Government undertakes to evaluate an application for a ROW grant. The principal outcome of ROW processing is a determination of whether to approve the application by issuing a grant and identifying appropriate terms and conditions for each grant. The definition also includes preparation of an environmental document, compliance with other legal requirements, and ROW administrative actions, such as assignments, amendments, and renewals, as different processing activities. This is not a change from existing BLM practice but clarifies to the public that the BLM collects cost recovery fees for these ROW-related activities. This definition explains what activities are generally associated with applications found under each cost recovery category. The final rule makes no changes to the definition that appeared in the proposed rule.

In response to comments expressing confusion about the term “subleasing,” the BLM added the term to this section of the final rule, defining it as the ROW holder allowing another party or parties to use facilities for the purposes specified in the ROW authorization, for which use the ROW holder may charge fees.

In response to multiple comments, the BLM revised the definition of “substantial deviation” to strike the best balance of the various considerations that the commenters raised. Two commenters wanted the definition of “substantial deviation” expanded further. One commenter suggested the BLM change the definition of “substantial deviation” to exclude additions of overhead optical ground wire and additions of new structures, as well as replacement of existing structures or conductors. Another commenter asked that the BLM change the definition of “substantial deviation” to clarify that any changes being made in support of an existing authorized use within the boundary of an existing authorized ROW are not to be considered a substantial deviation and require no additional authorization.

In response to these comments, the final rule revises the definition of “substantial deviation” to clarify that general maintenance activities, including safety-related activities, within an existing ROW are not considered a substantial deviation. Additionally, the definition clarifies that activities to prevent or suppress wildfires on lands within or adjacent to the ROW are not considered a substantial deviation. The final rule explicitly identifies “vegetation management” as an example of such activities.

Another commenter suggested the BLM change the definition of “substantial deviation” to include criteria the BLM will use to determine whether activities that occur when a ROW holder adds overhead or underground lines, pipelines, structures, or other facilities not expressly included in the current grant represent a substantial deviation. Though the BLM did not revise the rule to include specific criteria that will be used to determine whether an activity is a substantial deviation, the BLM plans to issue implementation guidance to help the BLM office processing or monitoring the ROW make this determination.

The rule revises the definition of “transportation and utility corridor” to clarify the process for establishing transportation and utility corridors. Furthermore, the amended definition clarifies the need for compatible uses. The final rule makes no changes to the definition that appeared in the proposed rule.

The BLM received multiple, contradictory comments about “vegetation management” and in response has added the term and a definition to the rule. The rule defines “vegetation management” in terms of both “emergency vegetation management” and “nonemergency vegetation management.” “Emergency vegetation management” is unplanned felling and pruning of vegetation on public lands within the linear right-of-way for a powerline facility and unplanned felling and pruning of hazard trees on abutting public lands that have contacted or present an imminent danger of contacting the powerline facility to avoid the disruption of electric service or to eliminate an immediate fire or safety hazard. “Nonemergency vegetation management” is planned actions as described in an operating plan or agreement periodically taken to fell or prune vegetation on public lands within the linear right-of-way for a powerline facility and on abutting public lands to fell or prune hazard trees to ensure normal powerline facility operations and to prevent wildfire in accordance

with applicable reliability and safety standards and as identified in an approved operating plan or agreement.

Several commenters suggested changes to § 2805.14(d), the provision that gives holders the right to perform certain vegetation management, with some commenters proposing that the BLM broaden the provision while others proposed that the BLM make it narrower. One commenter suggested that the BLM amend § 2805.14(d) so that ROW holders could trim, prune, and remove vegetation and conduct other activities consistent with maintenance and operation of the ROW and protection of public health and safety. Another commenter supported the provision as proposed so long as the vegetation management activities were defined in the project's operating plan or agreement. A third commentor requested revision of § 2805.14(d) to clarify that vegetation management to maintain the ROW includes the right to cut or trim off-ROW vegetation when the utility determines it is necessary as part of its vegetation management program. Similarly, another commenter requested the BLM modify the rule to acknowledge that all vegetation with the capability of growing into a standardized clearance area at maximum growth potential will be removed, regardless of whether it is dead or likely to die. A final commenter requested that the BLM clarify how the BLM interprets the hazard tree definition with respect to who can identify hazard trees and set occupational standards for its staff.

In response to the comments, the BLM determined it will retain the language in § 2805.14(d) but, as discussed above, revised the definition of hazard tree to be consistent with the USFS's definition, which addresses some of the comments regarding when vegetation management is allowed on and adjacent to the ROW.

The rule adds the term and a definition of “waived from rent” to clarify the differences between being “waived from rent” and “exempt from rent.” While a holder may be exempted from rent by statute or regulation, the BLM may also waive a part, or all, of a holder's rent (see §§ 2806.15 and 2866.15). The final rule makes no changes to the definition that appeared in the proposed rule.

The rule revises the definition of “zone” by removing the number “eight” from the description of the number of zones. The current linear rent schedule for ROWs has 15 zones, so the former definition is no longer accurate. Removing the number of zones does not affect the definition. The final rule makes no substantive changes to the definition that appeared in the proposed rule.

Subpart 2802—Lands Available for FLPMA Grants

Section 2802.10 What lands are available for grants?

This rule revises § 2802.10(c) by removing the specific requirement to notify the BLM office nearest the lands you seek to use. The rule instructs you to contact the BLM to determine the appropriate office with which you should coordinate. The appropriate office is the BLM office with jurisdiction over the lands you seek to use, which may not be the same as the BLM office nearest those lands.

One commenter suggested that the BLM modify § 2802.10(c) to provide for the identification of a single administrative office to be the lead for coordination in processing a ROW application when multiple offices may be involved, as well as to provide guidance on how to determine the appropriate BLM office or contact.

The BLM elected not to make the recommended change because the BLM has procedures to identify a lead office, or in the case where a project crosses several states, to identify a lead state to coordinate the processing of a ROW application. See BLM ROW Manual 2804 for further guidance on this process.

Subpart 2803—Qualifications for Holding FLPMA Grants

Section 2803.11 Can another person act on my behalf?

Section 2803.11 adds new provisions to govern the process a holder must follow to notify the BLM when another person or entity is authorized to act on the holder's behalf. This standardizes what documents the BLM requires prior to allowing another person or entity to act on behalf of the holder.

Paragraph (a) requires the holder to follow several steps before designating another individual or entity to act on their behalf. These requirements are necessary for the BLM to understand the legal relationship between the holder and the third party acting on their behalf.

Paragraph (a)(1) explains which BLM office must be notified. The office with jurisdiction over a grant retains the official case file and therefore needs the official documentation. This paragraph also requires the holder to provide a copy of a relevant power of attorney if one exists. This is often the instrument used to authorize another party to act on the holder's behalf. This requirement should not create any additional burden because the requested information is simply a copy of documents already possessed by the holder.

Paragraph (a)(2) requires the holder to provide and maintain current contact information for their intended agent. This requirement is important if the BLM needs to contact the agent. Without updated and current contact information, processing times can be delayed. This requirement is anticipated to streamline interactions between the BLM and holders or their agents.

Paragraph (b) informs the ROW holder how the BLM will administer the grant. The BLM is simplifying the formal communication process by establishing expectations of responsibility for any actions taken by an authorized agent. As a result of this change, the BLM anticipates a reduction in processing times for requests related to a ROW application.

The final rule makes no changes to the version of this section that appeared in the proposed rule.

Section 2803.12 What happens to my grant if I die?

Because an application is not an inheritable interest, the BLM changed the title of this section from “What happens to my application or grant if I die?” to “What happens to my grant if I die?” Paragraph (a) was also revised to remove the reference to applications.

The final rule makes no changes to the version of this section that appeared in the proposed rule.

Subpart 2804—Applying for FLPMA Grants

Section 2804.12 What must I do when submitting my application?

In § 2804.12, the BLM has changed § 2804.12(a) by adding a sentence following the first sentence to read: “The application must include the applicant's original signature or meet the BLM standards for electronic commerce.” This addition clarifies that when an application for a ROW is filed electronically, a manual signature may not be required. One commenter expressed support for the proposed rule's allowance that an application for a ROW that is filed electronically may not require a physical signature. The BLM has established the electronic filing process for communication uses ROWs by providing an online SF-299 for this type of ROW application. The BLM may expand the online filing process to other types of ROWs in the future.

Revisions to § 2804.12(a)(4) require an applicant to submit the project map for

the project as Geographic Information Systems (GIS) shapefiles, or in an equivalent format, when requested to do so by the BLM. When a BLM office is conducting an analysis under the National Environmental Policy Act (NEPA) or the National Historic Preservation Act (NHPA), it is not uncommon for the various resource specialists to request that the applicant provide project data electronically in a GIS format to ensure that the correct area for the proposed project is analyzed. It is likely the individual or entity responsible for the application already has the proposed project data in a GIS format, and therefore, the BLM is not adding a significant burden upon the applicant. This new requirement is expected to reduce application processing times by allowing the BLM to integrate project locations into existing resource datasets and analyze the potential resource impacts more quickly. See the preamble discussion of § 2864.12(a)(3) for comments related to the rule's GIS requirements.

The final rule makes no changes to the version of this section that appeared in the proposed rule.

Section 2804.14 What are the fee categories for cost recovery?

The rule revises the title of this section to read: “What are the fee categories for cost recovery?” The cost recovery categories in this section apply to both processing and monitoring activities, whereas the former title of § 2804.14 refers only to processing fees for grant applications. The BLM amended § 2804.14(a) to clarify that cost recovery fees include both processing and monitoring activities and to maintain consistency with the changes in § 2804.16 which, as amended, provides for the waiver of, rather than exemption from, processing and monitoring fees.

A commenter asked that the BLM explain how monitoring costs for the duration of the grant can be determined at the time of the grant application, given the long-term nature of authorizations. Often, monitoring is a one-time event to ensure that terms and conditions contained in a ROW grant are met during construction. However, for more complex authorizations, monitoring must occur throughout both construction and maintenance of the ROW. The expense for continuous monitoring during construction and afterward is considered when making category determinations. At times, periodic billing will be required to cover additional monitoring costs. This is especially true for Category 5 and 6 ROW project monitoring. Therefore, the BLM may collect additional payments from the land use authorization holder for anticipated monitoring expenses. The final rule amends the existing regulations to acknowledge that some ROWs that fall into the minor categories may nevertheless require monitoring for lengthy construction or maintenance periods. The BLM suggests long-term monitoring provisions be included in operating plans or agreements.

The BLM received multiple comments on the cost recovery portion of the proposed rule, largely focused on the increased cost recovery fee schedule for processing Category 1-4 ROW applications. One commenter stated that the BLM should eliminate revisions to the Category 1 processing fee that include processing fees for work estimated to take 1 hour or less. This commenter contested the BLM's justification that the time spent on ROW work activities generally is not less than 1 hour and expressed concern that this revision would create a financial burden to industry through the additional processing fees.

Processing one ROW application generally requires more than 1 hour. To process a ROW application, one or more BLM staff specialists need to examine the ROW site including traveling to and from the site. They need to prepare one or more reports (
e.g.,
cultural site evaluation, environmental evaluation), identify appropriate terms and conditions to be applied, prepare a grant for the applicant to sign, and collect rents and cost recovery payments. Master Agreements are a way for applicants to address concerns related to Category 1 applications that may take less than 1 hour to process.

Three commenters expressed concern about the amount the cost recovery fee is increasing and/or the validity of the calculations used to determine the new cost recovery fee schedule. The first commenter stated that cost recovery fees should not be revised to reflect an average hourly wage of $67.83. The commenter expressed concern that the economic analysis used to determine the average wage does not provide sufficient information to assess the validity of this wage. Similarly, this commenter stated that the rule did not properly consider required reasonableness factors in calculating $67.83 as the base average hourly wage for its cost recovery fees. More specifically, the commenter stated that the economic analysis was incorrect in its determination that all non-major projects: (1) are local in nature with small public benefits; (2) provide little opportunity to meet public service needs; and (3) would have an insignificant number of ROW applications where paying full actual costs could generate undue hardship. The second commenter stated that the average hourly wage of $67.83 upon which the cost recovery fees of sections 2804.14(b), 2805.16(a), 2884.12(b), and 2885.24(a) are based is not reasonably supported by the rule. The commenter stated the BLM had not provided adequate information for the public to consider its proposed new average hourly wage of $67.83, and the BLM had not considered adequately the consequences of its proposed rule. The third commenter expressed a general concern that cost recovery fees were increasing too much.

The BLM recognizes that the cost recovery calculations are complex but will not revise the hourly wage. FLPMA Section 304(b) identifies the factors which the BLM takes into account when determining whether fees are reasonable. Please see the 1986 BLM proposed rule (51 FR 26836-26844) for the first cost recovery determinations applying these factors. The economic analysis has been updated to provide more detail in response to the comments. Further discussion of how the hourly rate was calculated and how the amount of the increase satisfies the reasonableness factors is provided in the below paragraphs. Master Agreements, also discussed below, are a way for applicants to address cost concerns.

Three commenters expressed interest in the overhead cost calculations used in calculating the new cost recovery fee schedule. One commenter asked why only 3 years were used in calculating “overhead costs.” Another commenter asked how the specific percentages for the 3 years used were calculated. A third commenter questioned how the asserted “overhead costs” were calculated, whether only “vehicle usage, building utility cost, and property maintenance” went into the calculation, or if other items were included.

The indirect cost rate or “overhead costs” include expenses such as building maintenance, utilities, general administrative costs (time keeping, vehicle expenses, local travel costs), and similar items. The indirect rate is calculated by taking the total of the BLM's expenditures for a fiscal year (FY), subtracting salary costs, and dividing the remainder by the total expense figure. The annual indirect rate for any 1 year is derived from the average of the 5 previous fiscal years' costs. The indirect cost rates for FY 2018, 2019, and 2020 were 21.8 percent, 21.6 percent, and 21.5 percent, respectively. Tables showing the calculation can be found in the

economic analysis for this rulemaking. “Economic and Threshold Analysis for Revisions to 43 CFR 2800,” U.S. Bureau of Land Management, October 2023, available at
www.regulations.gov.

The BLM received several comments asking how cost recovery amounts were determined for Category 1-4 ROW applications. The cost recovery amounts for Category 1-4 applications were determined in a multi-step process. First, the BLM reviewed data in the DOI's Financial and Business Management System for FYs 2018, 2019, and 2020. The purpose of this review was to determine the BLM's costs associated with conducting ROW processing and monitoring activities. From this information, the BLM determined an approximate average wage ($/hour) being used to conduct cost recovery-eligible work and applied that wage to the number of hours representing the midpoint for each minor category. The BLM reviewed data that included these three functional areas (or sub-activities): “1430” (lands and realty work); “1492” (communication site work); and “5102” (ROW-cost recovery work). The program elements included: “ER” (ROW processing); “FP” (ROW work other than processing); and “NH” (ROW compliance).

The BLM used the following formulas to determine the approximate average wage for the cost recovery work:

Average Wage = total pay + indirect costs/number of hours worked

Total Pay = pay amount + pay additive + leave surcharge + leave surcharge additive

Indirect Costs = total pay ∗ indirect rate

“Pay amount” is the portion of employee gross pay charged to each program. “Pay additive” is the government share of taxes (
e.g.,
OASDI and Medicare) and any employee benefits (such as health insurance premiums, retirement contributions, etc.). “Leave surcharge” is a percentage of the employee gross pay assessed to each program to fund employee leave taken. “Leave surcharge additive” is a percentage of the government share of taxes and any benefits assessed to each program to fund employee leave taken. The “indirect rate,” as discussed above, is a percentage applied to the total pay to account for overhead costs, such as for vehicle use, building utility costs, and property maintenance.

The average wages that the BLM calculated using the cost data were relatively stable across the 3-year period with a slight increase in FY 2020: $66.47, $66.69, and $70.50 in FY 2018, FY 2019, and FY 2020, respectively. When the data are combined over the 3-year period, the calculated average wage is $67.83.

This wage is the value that the BLM used to determine the revised fee schedule. Specifically, the BLM multiplied $67.83 by the number of hours representing the midpoint for each minor category to get the revised base year fee for each category. During previous rulemakings on this subject, the BLM received comments that most users supported use of a midpoint, as opposed to another statistical method or evaluation of the data. With this rule, the BLM maintains the use of the midpoints for calculating the fees for the minor categories. The result of this formulation is revised fees of $271, $1,085, $2,171, and $3,527 for minor categories 1, 2, 3, and 4, respectively. These are the fees to be applied in the base year and adjusted annually for changes in the GDP-IPD, per current practice.

For more specific information on the calculation of the cost recovery amounts, please see “Economic and Threshold Analysis for Revisions to 43 CFR 2800,” U.S. Bureau of Land Management, October 2023, available at
www.regulations.gov.

With the increase in cost recovery fees, one commenter requested additional clarification as to how the BLM intends to use the increased revenue from Category 1-4 cost recovery. The BLM will use the increased revenue from the cost recovery fee increase to offset the costs the BLM incurs processing and monitoring minor category ROWs. Currently, the cost recovery funds received from applicants or ROW holders do not cover the Federal Government's expenses in processing and monitoring ROWs, which is the principal reason for adjusting the cost recovery fee schedule.

Two commenters stated that cost recovery fees should be solely covered by applicants and not impact taxpayers. The BLM agrees with these commenters. That is one of the reasons why the final rule includes the fee schedule increase. The BLM has elected not to revise the final rule to further explain the BLM's use of the revenue from the cost recovery fees. The statutory authority and the definition of “cost recovery” at § 2801.5 and text of the rule at § 2804.14 explain that cost recovery fees are for both processing and monitoring expenses.

A commenter also encouraged the BLM to provide detail regarding the cost recovery fees as well as other recovered costs to ensure that double cost recovery does not occur. The BLM charges cost recovery fees for processing and monitoring ROWs, and the BLM receives rents for the use of public lands for ROW purposes. Cost recovery is charged only once, while the ROW rental is charged every year. In suggesting that double cost recovery could occur, the commenter likely is confusing the one-time cost recovery with annual rent.

Two commenters requested that the BLM apply cost recovery fees to cover road inspection by BLM staff. For roads that are part of a ROW project subject to cost recovery, such fees are already used to pay for these inspections. Although the BLM is not changing this final rule to directly accommodate this comment, the BLM believes that it is a worthwhile suggestion, and the BLM will strive to ensure that cost recovery receipts are used for the proposed purpose.

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

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

This rule revises the title of this section to change “processing and monitoring” to “cost recovery.” This change is necessary for consistency with the changes made to § 2804.14.

The final rule makes no changes to the version of this section that appeared in the proposed rule.

Section 2804.16 When will the BLM waive cost recovery fees?

The rule amends § 2804.16 by revising the title to read “When will the BLM waive cost recovery fees?” rather than “Who is exempt from paying processing and monitoring fees?” Paragraph (a) of this section contains the undesignated introductory text of existing § 2804.16. This language was revised to refer to cost recovery fees, instead of processing and monitoring fees, and change the existing provision for an absolute exemption from fees to a potential waiver of fees that the BLM has discretion to apply or not apply.

Paragraph (a)(1) of this section contains the text of existing § 2804.16(a) and states that ROW cost recovery fees may be waived if an applicant is a State or local government and the application is for governmental purposes that benefit the general public. Under this paragraph, the waiver does not apply if charges levied on customers are similar to those of a profit-making entity. This is different from the former exception which applied only when such charges were the “principal source of revenue.”

The waiver for governmental entities is intended to provide financial relief to governmental entities seeking to provide a benefit to the public. However, some of these entities charge rent to use their facility beyond the operating costs. This change makes the waiver unavailable to applicants who would otherwise receive an authorization at no charge and then collect fees from other users.

Paragraph (a)(2) of this section contains the text, without revision, from existing paragraph (b).

Paragraph (a)(3) allows the BLM to waive cost recovery fees for Federal agencies for applications belonging to cost recovery Categories 1 through 4. The former regulations required Federal agencies to pay cost recovery fees on all ROW applications. Under an earlier version of the regulations, Federal agencies were exempt from all cost recovery. This rule strikes a middle path by allowing the BLM to waive fees for Federal agencies in some but not all circumstances. Transferring funds between agencies is costly and administratively slow. Costs associated with processing the transfer often exceed the fees being transferred. Therefore, it is not cost effective for the BLM to collect cost recovery fees from other Federal agencies for Categories 1 through 4. However, if a Federal agency's application would take the BLM more than 64 hours to process, the BLM would collect cost recovery fees under Category 5 or 6.

This rule adds a new paragraph (b) to this section stating that the BLM will not waive your fees if you are in trespass. This paragraph makes existing BLM policy explicit in the regulations.

The final rule makes no changes to the version of this section that appeared in the proposed rule.

Section 2804.17 What is a Master Agreement (Cost Recovery Category 5) and what information must I provide to the BLM when I request one?

This rule modifies § 2804.17(a) to change the cross-reference from § 2805.16 (currently the table for monitoring fees) to § 2804.14, which contains the combined cost recovery table for all ROW activities.

One commenter suggested the BLM clarify whether Master Agreements are initiated by the BLM or the applicant. A Master Agreement may be initiated by either party, but in the end, it is a mutual undertaking. The same commenter encouraged the BLM to: (1) allow master cost recovery agreements that lay out the terms and conditions for cost recovery but do not require funding commitments; (2) allow agreements to be developed at a region-wide level; and (3) clarify that only one Master Agreement is necessary in situations where the defined geographic area for a transmission line would be in more than one BLM administrative unit.

In response to the commenter's suggestions, the BLM revised paragraph (a) to clarify that monitoring may be done under Master Agreements but elected not to revise the final rule further. See the discussion of section 2804.18 for further responses to these comments.

Section 2804.18 What provisions do Master Agreements contain and what are their limitations?

Section 2804.18 describes how Master Agreements function. Paragraph 2804.18(a)(2) provides that a Master Agreement describes work to be done by the applicant and the BLM to complete ROW permitting and monitoring activities. A commenter suggested the BLM clarify whether Master Agreements are initiated by the BLM or the applicant. The BLM elects not to revise the rule in response to this comment, because the rule appropriately provides for cooperative development of Master Agreements and initiation by either the BLM or the applicant.

The revisions to paragraph 2804.18(a)(2) allow Master Agreements to be used for any type of ROW activity, not just ROW processing. The rule revises language in paragraph (a)(5) to align the language with other updates in the rule. The BLM believes the expanded use of Master Agreements will streamline processing and monitoring activities. Master Agreements are designed to consolidate some of the processing and monitoring steps associated with ROWs, including combining budgeting processes into one project work breakdown structure. Also, many Master Agreements fund or partially fund staffing of Realty Specialists and other key members of interdisciplinary teams, which can help expedite processing when funds are not otherwise available (§ 2804.22).

Section 2804.18(c) is amended to refer to “cost recovery fees,” instead of “processing and monitoring fees.” These changes are consistent with the expanded definition of a Master Agreement.

The final rule includes a new paragraph (a)(9) and redesignates the existing paragraph (a)(9) as paragraph (a)(10). This revision is made in response to several comments that suggested Master Agreements should be written so that they also include previously granted ROWs. This addition will clarify that Master Agreements may cover previously authorized ROWs.

The BLM also received a comment requesting the BLM allow master cost recovery agreements that lay out the terms and conditions for cost recovery but do not require funding commitments. The commenter's intent is not clear from this comment. However, the BLM notes that the primary purpose of a master cost recovery agreement is to agree upon the required cost recovery funding commitments.

The BLM also received a comment suggesting that the agency allow region-wide Master Agreements and Master Agreements that cover more than one BLM administrative unit. The current regulations allow Master Agreements to cover more than one administrative unit, and the BLM is piloting regional-level master ROW's that include master operating plans or agreements as well as master cost recovery plans. The BLM anticipates providing further guidance on regional-level master ROWs in the future.

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

Section 2804.19 is amended by revising the title from “How will BLM process my Processing Category 6 application?” to read “How will the BLM manage my Category 6 project?” This section is revised to explain that cost recovery for Category 6 projects will include monitoring the grant in addition to processing the application. This rule also makes editorial changes for clarity and consistency with the other rule changes.

Paragraph 2804.19(a) eliminates the requirement for a work and financial plan for some Category 6 applications at the discretion of the authorized officer and provides only that the BLM “may require” such plans. Preparing a work and financial plan takes an average of 6 months to complete. The preparation of a work and financial plan may not be necessary if both the applicant and the BLM authorized officer can agree, in writing, on the cost to process the action. This change will reduce the time associated with establishing a cost recovery account and improve the Category 6 cost recovery process, particularly for those actions requiring close to 64 hours.

In this section, the rule adds a new paragraph (b)(4) and redesignates existing paragraphs (b)(4) and (b)(5) as paragraphs (b)(5) and (b)(6), respectively. New paragraph (b)(4) states that the BLM may collect a deposit before beginning work on a Category 6 project. Previously, when an application

fell under Category 6, it took an average of 6 months to complete the details of the agreement, which includes a work and financial plan. The communications industry has indicated that when they are charged a Category 6 cost recovery fee, the deposit is usually between $11,000 and $15,000. The advanced collection of a deposit will shorten the time for processing an application by allowing the BLM to begin processing the application during the 6 months it usually takes to complete a cost recovery agreement. If the BLM determines the deposit is not adequate, the applicant can prepare a work and financial plan to provide additional funds under a cost recovery agreement.

One commenter expressed support for the proposed rule's provisions for collecting a deposit prior to initiating work to process Category 6 applications and giving discretion to the authorized officer to eliminate the requirement for a work and financial plan. The commenter further recommended the BLM consider removal of work and financial plan requirements entirely for Category 6 applications.

As in the proposed rule, the final rule modifies this section to make work and financial plans discretionary. In many instances such plans will no longer be required; however, some more complex ROW authorization situations may still require plans, which will benefit both the applicant and the BLM. Otherwise, the final rule makes only minor, nonsubstantive changes to the version of this section that appeared in the proposed rule.

Section 2804.20 How does the BLM determine reasonable costs for Category 6 right-of-way activities?

Section 2804.20 is amended by revising the title from “How does BLM determine reasonable costs for Processing Category 6 or Monitoring Category 6 applications?” to read, “How does the BLM determine reasonable costs for Category 6 right-of-way activities?”

The rule revises the last sentence in the introductory text of this section, which stated, “While the BLM considers your written analysis, the BLM will not process your Category 6 application.” Under this final rule, if the BLM requests additional information, the BLM will continue to work on your application while you are responding to our request if a deposit has been received by the BLM as provided in § 2804.19(b)(4). The BLM finds that this approach will lead to more efficient ROW processing and monitoring.

Paragraph (a) of this section describes how the BLM applies the factors that inform whether costs are reasonable as articulated in Section 304(b) of FLPMA to determine the actual costs owed to the BLM. The rule removes the reference to the BLM State Director, and instead the provision refers only to the BLM. This does not change how the BLM applies the “reasonableness” cost factors, and the decision is still appealable under § 2801.10. This change improves the cost recovery process by enabling the BLM to make the determination regarding reasonable costs for a Category 6 cost recovery at the appropriate management level based on the BLM's internal delegations of authority on a case-by-case basis. The final rule makes no changes to the version of this section that appeared in the proposed rule.

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

The rule amends this section by revising the title and paragraphs (a), (a)(2), and (a)(7) by removing references to “processing and monitoring” and replacing those references with more general references to all ROW activities to which cost recovery applies. This change is consistent with the changes described in § 2804.14.

Paragraph (b) of this section describes how the BLM reviews your analysis of the factors for your project to determine the fees owed to the BLM. The rule removes the reference to the BLM State Director and instead refers only to the BLM.

The final rule makes no changes to the version of this section that appeared in the proposed rule.

Section 2804.25 How will the BLM process my application?

The proposed rule would have amended paragraph (a)(1) of this section to add “unless your fees are exempt.” The final rule adds “unless you are exempt from paying fees,” which is a slight and nonsubstantive change relative to the proposed rule. This clarifying edit is necessary because the BLM is not required to identify your cost recovery fee if you are exempt from fees.

The rule redesignates paragraph (c)(2) of this section as paragraph (c)(3) and adds a new paragraph (c)(2). Paragraph (c)(2) of this section requires an operating plan or agreement for all powerline ROWs. Section 512 of FLPMA calls on the BLM to provide “owners and operators of electric transmission or distribution facilities located on public lands . . . with the option to develop and submit a plan” (43 U.S.C. 1772(c)(1)). Under existing § 2804.25(c), the BLM may require applicants to submit a plan of development (POD) for a ROW, as necessary. The operating plan or agreement may be included in the POD. The BLM generally requires PODs for large projects but believes the risk of wildfire associated with powerline ROWs merits an explicit requirement. One commenter suggested the BLM revise the proposed rule language in § 2804.25(c)(2) to allow applicants to provide a draft operating plan or agreement with their application to initiate application processing and allow applicants to finalize the plan collaboratively with BLM prior to grant issuance. The final rule incorporates this suggestion. See § 2805.21(a)(2).

Paragraph (c)(2) requires all powerline ROW holders to submit an operating plan or agreement unless the ROW holder has an approved plan that meets the requirements of § 2805.21 or unless the ROW holder can show good cause as to why it cannot meet this requirement. Under this rule, the BLM relies on its general authority to condition ROW grants (43 U.S.C. 1761(b)(1)) upon an applicants' submission of an operating plan or agreement for all new powerline ROWs. Applications to amend and renew ROWs must follow the same procedures as applications for new ROWs and, therefore, would also be subject to a requirement for an operating plan or agreement. However, if an applicant already has an approved plan that meets the requirements of § 2805.21(c) (“What is an operating plan or agreement for electric transmission and distribution rights-of-way?”), the applicant will not be required to submit a separate plan.

The rule revises paragraph (d) of this section by changing “completed application” to “complete application.” This revision is consistent with the addition of that term as a defined term in § 2801.5. The rule also revises the table in paragraph (d) of this section by adding the word “Master” in front of the word “Agreement.”

One commenter expressed support for the proposed rule's requirement that the BLM notify the applicant in writing if processing a Category 1-4 application is expected to take longer than 60 days. This is an existing BLM requirement that has now been codified in regulation by the final rule. See § 2804.25(d). The BLM intends to complete as many ROW applications as possible during the 60-day period.

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

The rule adds a new paragraph (a)(9) which provides that the BLM can deny a ROW application when an applicant does not comply with a deficiency notice (see § 2804.25(c) of this subpart) within the time specified in the notice or with a BLM request for additional information needed to process the application.

The final rule makes no changes to the version of this section that appeared in the proposed rule.

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

This rule amends § 2804.27 by revising the title to read “What fees must I pay if the BLM denies my application or if I withdraw my application or I relinquish my grant?” This title acknowledges that you may have to pay fees following a relinquishment of a grant.

The rule makes minor revisions to paragraphs (a) and (b) to make the language more consistent with language elsewhere in the existing regulations and this rule. Paragraph (c) explains how cost recovery fees are applied under Category 5 or 6 if a holder relinquishes their grant. The holder will be liable for all costs the United States has incurred in connection with the grant, including relinquishment of the grant. Any outstanding fees will be due to the BLM within 30 days after the holder receives the bill. The holder will be refunded the amount of fees paid that the BLM does not use to process the holder's grant. This new paragraph is consistent with existing BLM practice, but it is necessary to clarify and make explicit in regulation the process for relinquishing a grant and explain to holders what is required of them.

The final rule makes no changes to the version of this section that appeared in the proposed rule.

Subpart 2805—Terms and Conditions of Grants

Section 2805.11 What does a grant contain?

The rule adds a new paragraph (b) to § 2805.11 to provide that grants will include access (ingress and egress) rights to a ROW. The rule redesignates existing paragraphs (b) and (c) as paragraphs (c) and (d), respectively. Many ROWs need access to and from the ROW from outside the boundaries of the ROW for operations and maintenance. The rule adds an explicit requirement for the authorized officer to include rights of ingress and egress in the grant. Prior to 2005, the regulations had included similar provisions for ingress and egress.

The BLM has re-introduced these provisions to address the need for grants to include explicit provisions for continued access throughout the term of the grant. While most projects include authorization for temporary access for initial construction, if those temporary access rights expire, then access for future operations and maintenance requires an additional authorization. The requirement to include these rights of ingress and egress in the grant will ensure that the holder can engage in timely and efficient operation and maintenance of the grant.

The BLM may charge rent appropriate to the nature of these access routes outside the ROW boundary. For instance, where ROW access is facilitated by existing routes that are open to public use, rent likely would not be appropriate. By contrast, the BLM may charge rent for newly constructed roads or overland travel to authorized ROWs on public lands. See the preamble discussion of the revisions to § 2806.15(b)(3) for more information.

Three commenters expressed support for the proposed rule's requirement that grants include both ingress and egress access to ROWs, but these commenters asked for additional language to: (1) clarify that the provision regarding ingress and egress will not result in double cost recovery where access rights are already covered by the authorization; (2) allow for a broad range of access rights, including overland travel; and (3) recognize secondary rights of ingress and egress and limit ingress and egress to routes that cross BLM parcels.

Another commenter recommended the BLM modify the proposed rule language to allow alternate routes and emergency overland travel when primary routes are impassible or closed to avoid resource damage.

With respect to the first three commenters' suggestions, the final rule does not make any changes to the regulatory text. Under that the final rule: (1) for minor category cost recovery calculations, the BLM will ensure that there is not double counting of costs if there is already existing access to a ROW; (2) alternative access rights may be provided; however, unlimited overland travel must be approved by the BLM local office because of potential damage to resource values; and (3) the BLM will recognize valid secondary rights; however, the BLM can only authorize access over public lands, as the BLM has no authority to authorize access over private lands for ROW purposes. It will be the responsibility of the potential ROW holder to secure any necessary access across private land. The last commenter's recommendation to allow alternate routes and emergency overland travel when primary routes are impassible or closed to avoid resource damage may also be covered by terms and conditions developed for a ROW grant. However, there may be limitations on determining alternate routes due to potential damages to resource values if some alternative routes were to be allowed.

Another commenter requested that the BLM revise the proposed rule language to streamline the notice for access road maintenance outside of the ROW. The BLM elected not to revise the rule in response to this comment as authorization of access outside the ROW is subject to NEPA and NHPA, so it must be reviewed on a case-by-case basis to determine if the proposed access outside the ROW would impact other resource values. One option to address the commenter's concern would be for the BLM and the applicant to develop terms and conditions in the ROW to identify maintenance requirements and procedures outside the ROW.

A commenter also requested the BLM assist utilities with coordinating road maintenance plans in an equitable manner for roads with multiple users, including the BLM. The BLM elected not to revise the final rule to address the commenter's request to coordinate road maintenance agreements between multiple users. The BLM requires ROW holders to enter into road maintenance agreements with other ROW holders using the same roads. The road maintenance agreements are contracts between private entities that determine among themselves the best way to allocate costs and responsibilities for shared-road maintenance. The BLM is not involved in the contract negotiations between the private parties but does provide information to ROW applicants regarding other road users with whom the applicant will need to work to establish the required road maintenance agreement.

Having considered these and other comments, the final rule makes no changes to the version of this section that appeared in the proposed rule.

Section 2805.12 With what terms and conditions must I comply?

Former paragraph (a)(4) of this section required holders to do everything reasonable to prevent and suppress wildfires on or within the immediate

vicinity of the ROW. The language has been changed from “immediate vicinity of the ROW” to “adjacent to the ROW” to be consistent with the rule's revision of the definition of “substantial deviation.”

Paragraph 2805.12(a)(8)(vi) requires holders to ensure that they construct, operate, maintain, and terminate facilities in accordance with the authorization, including the approved POD. This rule expands that provision to extend to any operating plan or agreement developed under the new section 512 of FLPMA and these regulations.

Paragraphs 2805.12(c)(5) and (d)(3) are revised to provide that conditions associated with damaged and abandoned facilities that threaten human health or safety are not subject to the existing requirement that the BLM wait 3 months before requiring the holder to act. The BLM has experienced situations where grant holders create human health and safety hazards by abandoning facilities and equipment within their authorized ROW. If a holder's use is posing a health or safety hazard to the public, per the rule, the BLM is empowered to address it immediately.

One commenter recommended the BLM revise § 2805.12(a)(4) to clarify that utilities retain discretion to determine what fire prevention actions they will carry out in, or adjacent to, the ROW. Another commenter stated that the BLM should eliminate language in the proposed rule that would tie fire suppression actions to ROW grants.

A utility's fire prevention actions will be provided in the operating plan or agreement, as approved by the BLM. This final rule does not eliminate language that ties fire suppression actions to the ROW because they are important terms and conditions with which a utility must comply to protect other public land resource values and human health and safety.

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

Section 2805.14 What rights does a grant provide?

The rule revises the title from “What rights does a grant convey?” to “What rights does a grant provide?” to eliminate any implication that a grant gives ownership rights.

The final rule revises § 2805.14(b) for clarity. Paragraph (b) already requires BLM authorization before a grant holder may “allow other parties” to use a facility. As revised, the regulation will refer to this practice explicitly as “subleasing.” The revision will also align with the language in this section with that in new § 2865.14(b) providing consistency between the regulations governing communications uses and those governing all other uses. This change was not included in the proposed rule.

The rule revises § 2805.14(d) by removing the word “minor” from the description of permissible trimming, pruning, and removal of vegetation and by adding an allowance to undertake those activities to “protect public health and safety.” The term “minor” has caused confusion for the holders and is imprecise. These revisions provide the necessary detail for the ROW holder to determine what vegetation management they can and must do to operate and maintain their ROW or facility, including what does and does not constitute a substantial deviation.

Several commenters suggested changes to § 2805.14(d) to make it broader or to make it narrower. One commenter suggested the BLM amend § 2805.14(d) to allow, in addition, for “operations and maintenance activities.” One commenter stated that the BLM should revise the proposed rule language to clarify that vegetation management to maintain the ROW includes the right to cut or trim off-ROW vegetation when the utility determines it is necessary as part of its vegetation management program. One commenter expressed concern that proposed revisions to § 2805.14(d) could result in adverse impacts to other land users and the environment and recommended the BLM modify § 2805.14(d) to add a caveat that permissible action would be undertaken as defined in the projects' operating plans or agreements.

See the preamble discussion of § 2801.5 for additional discussion of comments regarding the appropriate scope of “vegetation management” under these regulations. This final rule retains the language in § 2805.14(d) but revises the definition of hazard tree to be consistent with the USFS definition. The USFS definition provides more context for the type of vegetation and defines a hazard tree as: [l]ikely to cause substantial damage to the powerline facility; disrupt powerline facility service; come within 10 feet of the powerline facility; or come within the minimum vegetation clearance distance as determined in accordance with applicable reliability and safety standards and as identified in the special use authorization for the powerline facility and the associated approved operating plan or agreement (36 CFR 251.51). This definition explains what work can be done outside of the holder's ROW to maintain it. The final rule makes no changes to the version of paragraph (d) that appeared in the proposed rule.

Section 2805.14(e) is revised to allow the holder to use vegetation removed during maintenance of the ROW. The use of existing vegetation will reduce non-native species intrusion and expedite maintenance by the holder. The paragraph is also revised to align with FLPMA's statutory provision that stone, soil, or vegetation may be used only if any necessary authorization to remove or use such materials has been obtained pursuant to applicable laws (43 U.S.C. 1764(f)). The final rule makes no changes to the version of paragraph (e) that appeared in the proposed rule.

Section 2805.15 What rights does the United States retain?

This rule rephrases paragraph (a) of this section to address the nature of the BLM's need for access to the lands and facilities covered by an authorization. Some authorizations may be for the use of a facility, while others would be for use of an area on the public lands. The rule retains the requirement to provide the BLM access to and within the lands or facilities.

Section 2805.15(e) adds language to clarify that after a grant is executed, any modification of its terms and conditions generally requires the BLM to issue a new or amended ROW grant. The BLM conducts analyses, including under NEPA, before issuing a grant, and any changes to the terms or conditions of a grant will require the BLM to undergo a new decision-making process. Any such new decision must comply with applicable laws, including NEPA, and may require the BLM to complete a new environmental analysis, use an existing environmental analysis, or rely on a categorical exclusion.

Under paragraph (f) of this section, the BLM can terminate an authorization for non-compliance. Section 2805.12 describes the terms and conditions that a grant holder must comply with and provides that the BLM can terminate a grant for non-compliance. This paragraph reinforces this potential outcome.

Under paragraph (g) of this section, the BLM can require a holder to submit financial documents related to a holder's authorization. This addition is consistent with the requirements of existing § 2805.12(a)(15).

The final rule makes no changes to the version of this section that appeared in the proposed rule.

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

The rule amends § 2805.16 by changing the word “monitoring” in the title to “cost recovery” such that the title reads, “If I hold a grant, what cost recovery fees must I pay?” The section is also amended by revising paragraph (a), adding a new paragraph (b), revising current paragraph (b), and redesignating it as paragraph (c).

As previously discussed, the rule removes the monitoring cost recovery fee table formerly located under § 2805.16(a). The rule also adds a sentence referring the reader to § 2804.14(b), where they can find the cost recovery table.

Under new § 2805.16(b), the cost recovery fee schedule for Categories 1 through 4 will be updated on an annual basis based on the previous year's change in the IPD-GDP, and the fees for Category 5 will be updated according to a given project's Master Agreement.

Section 2805.16(c), which contains the provisions of former § 2805.16(b), explains where to obtain a copy of the current year's cost recovery fee schedule. The rule provides updated contact information for the holder to request the schedule from the BLM's Division of Lands, Realty and Cadastral Survey.

One commenter stated that proposed revisions to the Category 1 processing fee that includes monitoring fees for work estimated to take 1 hour or less should be eliminated because the change is contrary to both FLPMA and the MLA and would create a financial burden to industry. This comment is similar to a comment on § 2804.14. Please see the response above in the discussion of § 2804.14.

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

Section 2805.21 What is an operating plan or agreement for electric transmission and distribution and other rights-of-way?

Section 2805.21 codifies many of the provisions of Section 512 of FLPMA into the BLM's regulations. Section 512(c) of FLPMA describes the requirements for facility inspection, operations and maintenance, and vegetation management plans. Section 2805.21 describes the requirements for operating plans or agreements, which are consistent with the requirements of the plans described in Section 512 of FLPMA.

Under § 2804.25(c)(2) of the rule, and as reflected in paragraph (a)(1), operating plans or agreements are required for all new, renewed, or amended electric transmission and distribution ROWs. In addition, under paragraph (a)(2), such plans may be submitted to the BLM on a voluntary basis by holders of existing electric transmission and distribution ROWs. Operating plans or agreements may be advantageous to both the BLM and the ROW holder by better defining authorized activities, schedules for maintenance, and wildfire risk reduction measures, and by introducing limits on a ROW holder's liability under the specific circumstances described in this section.

Paragraph (b) of this section refers to the Electric Reliability Organization (ERO) standards and provides that those standards may be incorporated into operating plans or agreements developed under this section. The Energy Policy Act of 2005 created the ERO: an independent, self-regulating entity that enforces mandatory electric reliability rules on all users, owners, and operators of the nation's transmission system. The North American Electric Reliability Corporation (NERC) develops and enforces reliability standards for North America and is the ERO. NERC reliability standards define the reliability requirements for planning and operating the North American bulk power system. These standards apply only to holders who are part of a bulk power system, and holders subject to these standards may incorporate them into their operating plan or agreement. The ERO reliability standards developed by NERC are requirements the holder must meet for operating and maintaining the ROW and facility, such as frequency of inspections and minimum distance of vegetation clearances from powerlines. Incorporating these industry-wide standards into the operating plan or agreement will help to provide consistency between NERC standards and the plans submitted to the BLM and USFS.

Two commenters requested that the BLM revise § 2805.21(b) to recognize that: (1) utilities do not manage to the NERC-defined minimum vegetation clearance distance; instead, their goal is to avoid any possibility of encroachment; and (2) vegetation management strategies must respond to all operating conditions. They recommended that, when referring to reliability standards, the rule should indicate that the statutory term “disruption” can include things such as arcing potential and that compliance with the reliability standards requires vegetation be cleared to a MVCD plus X feet safety zone (with X being defined by the utility). Similarly, one commenter suggested the BLM revise the proposed rule language to clarify that the utility, not the BLM, is responsible for choosing the vegetation clearance distances and the management strategies it will employ to assure vegetation will not encroach on MVCD or violate reliability standards under any operating conditions.

This final rule retains the proposed language in § 2805.21(b) but revises the definition of a hazard tree to be consistent with the USFS's definition. The USFS definition extends to vegetation that is dead or likely to die or fail and “come[s] within the MVCD as determined in accordance with applicable reliability and safety standards and as identified in the special use authorization for the powerline facility and the associated approved operating plan or agreement.” The BLM further incorporated the USFS definition of MVCD which addresses the prevention of flashover. Approved operating plans or agreements will address any safety zones needed by the ROW holder.

Paragraph (c) of this section describes the requirements for operating plans or agreements, consistent with Section 512(c) of FLPMA and with the USFS final rule implementing Section 512. Under paragraph (c)(1) of this section, operating plans or agreements must identify the applicable facilities to be maintained.

Two commenters requested the BLM integrate NERC standards and definitions into BLM operating plans and agreements and powerline authorizations and avoid implementing any standards or requirements that could cause conflict with the NERC standards. One commenter further requested the BLM provide regulatory guidance to assist agency staff in understanding these reliability standards.

The BLM does not believe these changes are necessary. Operating plans or agreements will be developed collaboratively with the ROW applicant, which will allow the applicant to submit provisions that are NERC compliant. Also, the BLM intends to incorporate reliability standards and regulatory guidance into staff training, which is a more appropriate venue for communicating industry standards.

Paragraph (c)(2) of this section requires an operating plan or agreement to account for the holder's own operations and maintenance plans for the applicable facilities. Many ROW holders have existing, internal plans for

their operations and maintenance that they have not previously been required to submit to the BLM for approval, including those who must comply with ERO standards. The holder may be able to submit these existing internal plans to satisfy the BLM's requirements for operating plans or agreements. A holder would not need to submit a new operating plan or agreement if their existing plan or agreement meets the requirements of this section.

Paragraph (c)(3) of this section requires that a plan describe how a holder will operate and maintain a ROW and facility, including for vegetation management. These operations, maintenance, and fire prevention methods may be those required to comply with applicable law, including fire prevention measures, safety requirements, and reliability standards established by the ERO. While the ERO describes the standards that must be met, the holder must describe in the operating plan or agreement how they plan to meet those standards.

Under paragraph (c)(4) of this section, an operating plan or agreement must include schedules for a holder to notify the BLM about non-emergency maintenance, including when they must seek approval from the BLM and when the BLM must respond to that request. Non-emergency maintenance is further discussed in the preamble discussion of § 2805.22.

Four commenters requested the BLM revise § 2805.21(c)(4)(ii) to clarify that routine maintenance activities do not require approval by the BLM if they are part of an approved plan.

The scope of routine maintenance that will require subsequent approval will be determined on a case-by-case basis and will be described in each individual operating plan or agreement. The final rule was not changed in response to these comments as the rule already contains provisions to this effect.

Paragraph (c)(5) of this section requires that an operating plan or agreement describe processes for identifying changes in conditions and modifying the approved operating plan or agreement, if necessary. Either the BLM or holder can determine that the conditions in the ROW, which may include environmental or accessibility conditions, have changed. The operating plan or agreement must describe how the BLM and the ROW holder will communicate and initiate any necessary plan modifications. Communications between BLM and the ROW holder are discussed further in paragraph (e) of this section.

Paragraph (c)(6) of this section requires that the operating plan or agreement provide for removal and disposal of cut trees and branches, including plans for sale of forest products. One commenter requested that the BLM modify § 2805.21(c)(6) to replace the phrase “removal and disposal” with the word “disposition” to describe what a holder must do with cut trees and branches. The BLM agrees with this comment and the final rule includes the suggested change.

Several commenters stated that the BLM should further modify the proposed rule language to clarify the requirements for operating plans or agreements. In response, the BLM revised § 2805.21(c)(3) to clarify that an operating plan or agreement must include vegetation management, inspection, operation and maintenance, and fire prevention plans. Further revision of this section was not necessary as other provisions provide sufficient clarity.

Under paragraph (d) of this section and consistent with Section 512(c)(4)(A) of FLPMA, the BLM will, to the extent practicable, review and approve an operating plan or agreement within 120 days of receiving the plan or agreement. Two commenters suggested that the BLM modify proposed rule language to clarify: (1) that the 120-day review period for an operating plan or agreement begins when the applicant submits a completed application as defined in the Proposed Rule; (2) that requests for additional information during the review process (including response time from the applicant and the incorporation of additional applicant responses) would not pause the 120-day review timeframe; and (3) how compliance and consultation requirements under applicable environmental laws, including the NEPA, Endangered Species Act, and NHPA, will be handled, either within the 120-day review timeframe or after plan approval but prior to commencement of on-the-ground activities.

For a renewal application, the 120-day period will start upon receipt and acknowledgement of a complete application with a compliant operating plan or agreement. For a new application or amendment to an existing ROW, the 120-day period will start upon granting the ROW. Compliance and consultation requirements under applicable environmental laws, including the NEPA, Endangered Species Act, and NHPA, will be addressed prior to the BLM granting a new or amended ROW. For an existing ROW with no Federal action needed, the 120-day period will start upon the receipt of a compliant operating plan or agreement. Any operating plan or agreement will be approved, to the maximum extent practicable, within the statutory 120-day period with the understanding that factors such as the time it takes an applicant to respond to a request for additional information, the number of proposed operating plans and agreements under review by an authorized officer, and the number of powerline facilities covered under a single operating plan or agreement may affect the practicability of approving a proposed operating plan or agreement within 120 days.

Paragraph (e) of this section provides that, when an operating plan or agreement requires modifications, the BLM will provide advance reasonable notice to a holder that a modification is necessary, following which the holder must submit the proposed modification to the BLM. The BLM will, to the maximum extent practicable, review and approve the proposed operating plan or agreement modification in the same 120-day timeframe that applies to approval of new plans. This timeframe is consistent with the requirements of Section 512 of FLPMA.

Under paragraph (e)(4) of this section, a holder may, while a proposed plan modification is pending approval, continue to operate and maintain the ROW or facility in accordance with the approved operating plan or agreement, as long as the activity does not adversely affect the identified condition that necessitates the plan modification. Although a plan modification may be required, the BLM does not intend for operations and maintenance to be unnecessarily delayed in other areas of the ROW that are not impacted.

Paragraph (f) of this section provides that certain holders may enter into an agreement with the BLM in lieu of an operating plan. An agreement must contain the same general requirements described in this section. Agreements need to include schedules, as described in paragraph (c)(4) of this section and are subject to the same modification requirements of paragraph (e) of this section.

Paragraph (g) of this section describes the criteria that a holder must meet to be eligible to enter into an agreement. A holder may enter into an agreement with the BLM if they are not subject to the ERO reliability standards or if they sold less than 1,000,000 megawatt hours of electric energy for purposes other than resale during each of the 3 calendar years prior to enactment of Section 512 of FLPMA. These eligibility requirements are established by Section 512(d)(1) of FLPMA and generally apply to rural electric cooperatives and other

small entities. Section 512(d)(2)(A) of FLPMA requires the Secretary to ensure that the minimum requirements of these agreements “reflect the relative financial resources of the applicable owner or operator compared to other owners or operators of an electric transmission or distribution facility.”

One commenter stated that the BLM should cite Title XII, Section 215 of the Energy Policy Act as a related law in this section. The BLM does not believe this change is necessary since § 2801.9(b) refers to the Federal Power Act of 1935, which would include any subsequent amendments to the 1935 Act, such as Title XII of the Energy Policy Act.

Several commenters requested that the BLM establish a standardized notice and approval process for ROW processing as the USFS has. The BLM worked closely with the USFS as the USFS developed its policy surrounding FLPMA Section 512. The BLM intends to provide further clarification to ROW applicants through policy and to develop new templates and review existing templates that can be used to expedite processing of ROWs.

Two commenters also proposed a new NEPA categorical exclusion for vegetation management as follows:

Approval of operating plan or agreements, and activities conducted in accordance with an approved operating plan under a right-of-way grant for an electric transmission and distribution facility.

Conversely, two commenters expressed concern that operating plans or agreements could have extraordinary circumstances or impacts outside the ROW and should not automatically be subject to a categorical exclusion.

The BLM appreciates the suggestion of new categorical exclusions and may pursue this avenue. The BLM must work with the Council on Environmental Quality and possibly others to establish a new categorical exclusion, and doing so is beyond the scope of this rulemaking. The BLM will consider using a categorical exclusion when appropriate. The BLM must review for the presence of extraordinary circumstances on every project that may be categorically excluded.

One commenter indicated that the proposed rule should cover only “green” energy projects. The BLM has the responsibility to process all applications and manage all grants consistently. For consistent land management, the BLM will not change the rule to cover only “green” projects.

Three commenters requested the BLM modify the proposed rule to include Master Agreement language or templates to establish a master permit and agreement process for operating plans or agreements at the state office level that can be implemented by operators and BLM field offices.

The BLM did not revise the language in the proposed rule in response to these comments as the agency is addressing these requests through a pilot master operations and maintenance and consolidation program in the BLM California State Office. The BLM hopes to duplicate this program in other states. The BLM anticipates developing policies at the national level that would then be adopted at the BLM state level and adjusted as needed for each state.

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

Section 2805.22 Special Provisions for Vegetation Management for Electric Transmission and Distribution Rights-of-Way

Section 2805.22 provides that ROW holders can conduct vegetation management related activities and distinguishes between emergency and non-emergency conditions. This section implements the requirements of Section 512(c) and (e) of FLPMA.

Paragraph (a) of this section identifies the conditions that are considered Emergency Conditions and what the holder is allowed to do during Emergency Conditions without immediate notification to the BLM. An Emergency Condition exists when one or more hazard trees have contacted, or present an imminent danger of contacting, an electric transmission or distribution line. The rule specifies that this threat can arise from a hazard tree within or adjacent to a transmission line ROW. Under paragraph (a)(1) of this section, holders may prune or remove the hazard tree to avoid the disruption of electric service and to eliminate immediate fire and safety hazards. Paragraph (a)(2) requires the holder to notify the BLM within one calendar day after taking any such action.

One commenter recommended the BLM revise § 2805.22(a) to clarify that the grant holder has discretion as to what vegetation poses an imminent danger of contacting a transmission line or is an immediate fire and safety hazard. This commenter noted that emergencies may involve issues other than just vegetation in imminent threat to contact a line. They also requested that the one-day emergency notification requirement be clarified to mean within 1 business day of the action.

The BLM understands that there are emergencies other than vegetation issues, and this rule does not preclude holders from addressing those emergencies. This rule implements Section 512 of FLPMA, which addresses vegetation management. Therefore, the emergencies anticipated under this rule should only apply to vegetation management. The BLM believes that the grant holder has discretion as to what vegetation must be trimmed or pruned under Section 512 of FLPMA and these implementing regulations. The BLM will maintain a one-day emergency notification requirement, regardless of whether that one day is a business day, because emergencies require immediate resolution.

Paragraph (b) of this section identifies Non-Emergency Conditions for which the holder of a powerline ROW can conduct vegetation management activities. The holder must conduct activities in accordance with the terms and conditions of the ROW grant, §§ 2805.12(a)(4) and 2805.14(d), and any BLM-approved operating plan or agreement.

Paragraph (b)(1) of this section provides when a holder needs to request approval to conduct vegetation management activities. Under paragraph (b)(1)(i), a holder must seek approval from the BLM if the operating plan or agreement specifically requires prior approval. Prior approval for an activity may be required in an operating plan or agreement if the activity could have cultural or environmental impacts.

Prior approval is required under paragraph (b)(1)(ii) of this section if the activity is not described in an approved operating plan or agreement. Paragraph (b)(2) of this section provides that if the BLM does not respond to a request within the timeframe described in an approved operating plan or amendment, and the vegetation management activity is consistent with the holder's approved operating plan or amendment, a holder may proceed with the vegetation treatment activities. This provision will help ensure that holders can undertake necessary vegetation management activities to further support the goals of reducing fire risk.

Holders who do not have a BLM-approved operating plan or agreement will not be affected by paragraphs (b)(1) or (b)(2) of this section. Holders of ROWs in effect as of the effective date of this final rule will not have an operating plan or agreement until they amend or renew their ROW grant, or until they voluntarily submit an operating plan or agreement for approval.

The terms and conditions of some existing grants do not sufficiently describe the vegetation management activities that a holder may take. In the absence of an operating plan or agreement, holders will be required to comply with the terms and conditions of the grant and §§ 2805.12(a)(4) and 2805.14(d). Even when not required, holders will be encouraged to submit operating plans or agreements for existing ROWs to the BLM to improve coordination regarding vegetation management and wildfire risk reduction.

Paragraph (c) of this section mirrors § 2805.12(a)(4) but adds specific examples of reasonable actions that can be taken by the holder, including pruning or removal of vegetation and cooperating with the BLM to investigate fires.

One commenter asked the BLM to update ePlanning pages to disclose maintenance activities or public land closures associated with vegetation management. The BLM believes that ePlanning is not the appropriate venue for tracking vegetation management requests but is exploring alternative options for consolidation and disclosure of vegetation management requests consistent with FLPMA Section 512(h).

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

Subpart 2806—Annual Rents and Payments

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

In § 2806.13(e), the rule eliminates limiting conditions on the BLM's ability to collect uncollected or undercollected rent, which under the existing regulation only extends to cases in which there is a clerical error, an adjustment to rental schedules, or an omission or error in complying with terms and conditions. The BLM can now collect any rents and fees due to the United States.

New § 2806.13(h), explicitly provides that rent is due regardless of whether a courtesy bill has been sent or received. This addition clarifies current BLM practice to the public.

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

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

In § 2806.14(a)(4), the provisions governing communications sites are deleted. The exemptions described in § 2866.14(b) encapsulate the language that has been removed from § 2806.14.

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

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

The BLM has received feedback from customers about inconsistencies in how BLM approves waivers or reductions in rent. Therefore, § 2806.15(b) clarifies that a BLM State Director is the authorizing official with respect to rental reductions and waivers.

Under former paragraph (b)(3) of this section, the BLM could not reduce or waive rent if a holder has a ROW in connection with the grant at issue for which the United States receives compensation. The final rule rewrites that provision to allow for a reduction or waiver of rent if a holder's grant describes the use of existing routes outside of the ROW that are used to access the ROW. These revisions are consistent with § 2805.11(b), which requires a grant to include and identify new and/or existing routes that would be used for ingress and egress. The BLM will charge rent appropriate to the nature of these access routes. For instance, where ROW access is facilitated by existing routes that are open to public use, rent would likely not be appropriate. By contrast, the BLM will charge appropriate rent for roads to ROWs on public lands newly constructed by a holder. See the preamble discussion of § 2805.11 for more information.

Existing § 2806.15(c) has been redesignated as § 2806.15(b)(5) and revised to maintain consistency with the edits made in § 2806.15(b). With the added reference to the BLM State Director in paragraph (b) of this section, it is appropriate to redesignate existing paragraph (c) as paragraph (b)(5). Waiving or reducing rent under paragraphs (b)(1) through (b)(5), as revised by this rule, will be at the discretion of the BLM State Director. This revision is consistent with existing BLM practice.

The final rule makes no changes to the version of this section that appeared in the proposed rule.

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

Paragraph (c) of this section is revised to update the contact address of the BLM and highlight availability of the Per Acre Rent Schedule on the BLM website.

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

Sections 2806.30 Through 2806.44

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

Table 2—Former Subpart 2806 vs. New Subpart 2866

New section 2866 based on or moved from former section 2806

Former
section

Subpart 2806
Former title
Annual rents and payments
New section
Subpart 2866
New title
Annual rents and payments

Moved from § 2806.30
What are the rents for communication site rights-of-way?
§ 2866.30
What are the rents for Communications Uses?

Moved from § 2806.31
How will BLM calculate rent for a right-of-way for communication uses in the schedule?
§ 2866.31
How will the BLM calculate rent for Communications Uses in the schedule?

Moved from § 2806.32
How does BLM determine the population strata served?
§ 2866.32
How does the BLM determine the population strata served for your facility?

Moved from § 2806.33
How will BLM calculate the rent for a grant or lease authorizing a single use communication facility?
§ 2866.33
How will the BLM calculate the rent for a single use communication facility grant?

Moved from § 2806.34
How will BLM calculate the rent for a grant or lease authorizing a multiple-use communication facility?
§ 2866.34
How will the BLM calculate the rent for a multiple-use communication facility grant?

Moved from § 2806.35
How will BLM calculate rent for private mobile radio service (PMRS), internal microwave, and “other” category users.
§ 2866.35
How will the BLM calculate rent for private mobile radio service (PMRS), internal microwave, and “other” category uses?

Moved from § 2806.36
If I am a tenant or customer in a facility, must I have my own grant or lease and if so, how will this affect my rent?
§ 2866.36
If I am a tenant or customer in a facility, must I have my own grant and if so, how will this affect my rent?

Moved from § 2806.37
How will BLM calculate rent for a grant or lease involving an entity with a single use (holder or tenant) having equipment or occupying space in multiple BLM-authorized facilities to support that single use?
§ 2866.37
How will the BLM calculate rent for a grant involving an entity with a single use (holder or tenant) having equipment or occupying space in multiple BLM-authorized facilities to support that single use?

Moved from § 2806.38
Can I combine multiple grants or leases for facilities located on one site into a single grant or lease?
§ 2866.38
Can I combine multiple grants for facilities located at one site into a single grant?

Moved from § 2806.39
How will BLM calculate rent for a lease for a facility manager's use?
§ 2866.39
How will the BLM calculate rent for a grant for a facility manager's use?

Moved from § 2806.40
How will BLM calculate rent for a grant or lease for ancillary communication uses associated with communication uses on the rent schedule?
§ 2866.40
How will the BLM calculate rent for an authorization for ancillary Communications Uses associated with Communications Uses on the rent schedule?

Moved from § 2806.41
How will BLM calculate rent for communication facilities ancillary to a linear grant or other use authorization?
§ 2866.41
How will the BLM calculate rent for communications facilities ancillary to a linear grant or other use authorization?

Moved from § 2806.42
How will BLM calculate rent for a grant or lease authorizing a communication use within a federally-owned communication facility?
§ 2866.42
How will the BLM calculate rent for Communications Uses within a federally owned communications facility?

Moved from § 2806.43, but the terms would be moved to § 2861.5
How does BLM calculate rent for passive reflectors and local exchange networks?
§ 2866.43
How does the BLM calculate rent for passive reflectors and local exchange networks?

Moved from § 2806.44
How will BLM calculate rent for a facility owner's or facility manager's grant or lease which authorizes communication uses?
§ 2866.44
How will the BLM calculate rent for a facility owner's or facility manager's grant which authorizes Communications Uses?

Section 2806.52 Rents and Fees for Solar Energy Development Grants

This section revises paragraphs (a)(6) and (b)(2) to update the contact address of the BLM and highlight availability of the current solar energy acreage rent schedule and the current MW rate schedule for solar energy development on the BLM website.

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

Section 2806.62 Rents and Fees for Wind Energy Development Grants

The proposed rule proposed revisions to paragraphs (a)(7) and (b)(2) to update the contact address of the BLM and highlight availability of the current wind energy acreage rent schedule and the current MW rate schedule for wind energy development on the BLM website. However, the BLM intends to address this in a separate rulemaking. Therefore, this portion of the proposed rulemaking is not carried forward in this final rule.

Subpart 2807—Grant Administration and Operation

Section 2807.10 When can I start activities under my grant?

One commenter stated that the BLM should modify § 2807.10 in the rule to clarify when a grantee may start activities under a grant. More specifically, they stated that this provision should be revised to clarify that it only applies to activities requiring a Notice to Proceed in approved operating plans. This discussion is outside the scope of the proposed rule and would require a full rulemaking process to address it. Therefore, the BLM will not address this comment in this final rule, and the final rule makes no changes to § 2807.10.

Section 2807.12 If I hold a grant, for what am I liable?

The rule redesignates existing paragraph (g) of this section as paragraph (h) and adds a new paragraph (g). New paragraph (g) codifies the liability provisions at Section 512(g) of FLPMA and provides that the BLM may not impose strict liability in certain circumstances.

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

Section 2807.17 Under what conditions may the BLM suspend or terminate my grant?

The rule amends § 2807.17(b)(2) by changing the word “terminate” to “relinquish.” This change aligns with changes made to § 2886.17 and with the nomenclature that the BLM uses when processing ROWs. The rule also adds § 2807.17(b)(3) to allow the BLM to terminate a ROW grant when a court terminates or requires the BLM to terminate the ROW. The rule redesignates paragraph (b)(3) as paragraph (b)(4).

The final rule makes no changes to the version of this section that appeared in the proposed rule.

Section 2807.20 When must I amend my application, seek an amendment of my grant, or obtain a new grant?

The rule a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-06997. Public record. Not legal advice.