Rights-of-Way, Principles and Procedures; Rights-of-Way Under the Mineral Leasing Act

SUMMARY: The Bureau of Land Management (BLM) of the United States

Department of the Interior proposes to: amend its right-of-way

regulations to revise rent and cost recovery procedures and policies;

adjust cost recovery fees to reflect cost increases since the current

regulations became effective in July 1987; eliminate automatic

exemptions from cost recovery for federal agencies, except for those

agencies and projects exempted by law; use a short-term right-of-way

instead of a temporary use permit for rights-of-way issued under the

Federal Land Policy and Management Act of 1976; clarify how BLM will

apply rent schedules for communication site rights-of-way; broaden the

conditions for which BLM will require advance payment of rent; rephrase

the language of the regulations into plain language; and reorganize the

regulations to reflect the sequence in which BLM takes action on

applications.

DATES: Send your comments to reach BLM on or before October 13, 1999.

BLM will not necessarily consider any comments received after the above

date during its decision process on the proposed rule. Because of the

length of the comment period, BLM does not intend to extend it.

ADDRESSES: You may mail comments to: Bureau of Land Management,

Administrative Record, Room 401 LS, 1849 C St., N.W., Washington, D.C.

20240. You may also hand-deliver comments to: BLM, 1620 L St., N.W.,

Room 401, Washington, D.C. Comments, including names and addresses of

respondents, will be available for public review at the above address

during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through

Friday, except holidays. For information about filing comments

electronically, see the SUPPLEMENTARY INFORMATION section under

``Electronic access and filing.''

FOR FURTHER INFORMATION CONTACT: Ron Montagna, (202) 452-7782,

[email protected]. Individuals who use a telecommunications device

for the deaf (TDD) may call the Federal Information Relay Service

(FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern time,

Monday through Friday, except holidays.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures and Information

II. Background

III. Discussion of Proposed Rule

IV. Procedural Matters

I. Public Comment Procedures

Electronic Access and Filing Address

You may view an electronic version of this proposed rule at BLM's

Internet home page at www.blm.gov. You may also comment via the

Internet to: WOC[email protected]. If you submit your comments

electronically, please submit them as an ASCII file to minimize

computer problems and include ``Attention: AC74'' and your name and

return address in your Internet message. If you do not receive a

confirmation from the system that we have received your Internet

message, contact us directly at (202) 452-5030.

Written Comments

Confine written comments on the proposed rule to issues pertinent

to the proposed rule and explain the reasons for any recommended

changes. Where possible, reference the specific section or paragraph of

the proposal which you are addressing. BLM may not necessarily consider

or include in the Administrative Record for the final rule comments

which it receives after the comment period closes (see DATES), or

comments delivered to an address other than those listed above (see

ADDRESSES).

Written comments, including the names, street addresses, and other

contact information about respondents, will be available for public

review at the above address during regular business hours (7:45 am to

4:15 pm), Monday through Friday, except holidays. Comments made by

Internet will be available for inspection at the end of the comment

period. Individual respondents may request confidentiality. If you wish

to request that BLM consider withholding your name, street address and

other contact information (such as: Internet address, FAX or phone

number) from public review or from disclosure under the Freedom of

Information Act, you must state this prominently at the beginning of

your comment. BLM will consider each request on a case-by-case basis.

Such requests will be granted to the extent allowed by law. All

submissions from organizations or businesses, and from individuals

identifying themselves as representatives or officials of organizations

or businesses, will be made available for public inspection in their

entirety.

BLM is interested in all comments that you may have on the issues.

We are especially interested, however, in comments and rationale in the

following areas:

Whether or not BLM should continue to issue temporary use

permits for rights-of-way issued under the Federal Land Policy and

Management Act;

Whether or not there should be a separate cost recovery

decision for monitoring costs or whether each application category

decision should continue to determine both the processing and the

monitoring category fees. If you believe that there should be separate

application and monitoring categories, please provide definitions for

the monitoring categories and identify methods that BLM can use to

relate a fee to a specific category;

Whether BLM should charge for processing right-of-way

grant renewals, and, if so, on what should the costs be based;

Whether or not federal agencies should continue to be

exempt from cost recovery and rent payments;

When and under what conditions BLM should require the

advance payment of rent;

Whether BLM should establish a new ``Minimal Impact'' cost

recovery category for non-Mineral Leasing Act actions that require less

than 8 hours to process; and

Whether BLM should impose fees for late payment of rent.

Interagency Coordination

The United States Department of Agriculture, Forest Service, is

currently preparing regulations to recover its costs for processing and

administering special use authorizations on National Forest System

lands. In doing so, the Forest Service intends to adopt, to the extent

possible, the processes, procedures, and schedules identified in this

proposed rule. The Forest Service will evaluate the comments received

in response to this proposed rule and will consider those comments in

developing proposed regulations applicable to special use applications

and authorizations on National Forest System lands. The Forest Service

intends to publish its proposed cost recovery regulations for review

and comment as soon after the close of the comment period on these

proposed rules as possible.

[[Page 32107]]

II. Background

General Authorities and Policies

Section 501 of the Federal Land Policy and Management Act (FLPMA),

43 U.S.C. 1761, authorizes the BLM to issue and renew rights-of-way

under, over, and through lands under its jurisdiction. These rights-of-

way may contain facilities for impounding, storing and transporting

water; for transporting and distributing liquids and gases other than

oil and gas; for distributing and transporting solid materials, other

than oil and gas and products refined from them; for generating,

transmitting, and distributing electricity; for transmitting and

receiving electronic signals, such as radio, television and telegraph;

and for transportation corridors, such as railroads, roads, tramways,

and livestock driveways.

Section 28 of the Mineral Leasing Act, as amended (MLA), 30 U.S.C.

185, authorizes the Secretary of the Interior to grant to qualified

applicants rights-of-way through Federal lands for transporting oil,

gas, synthetic liquid or gaseous fuels, or other refined products. The

MLA also allows for temporary use permits to supplement each pipeline

right-of-way for the purposes of constructing, operating, maintaining

and terminating the pipeline and to protect the natural environment and

public safety.

BLM has designed its right-of-way program to coordinate the actions

of individuals, governments, and businesses in using public lands for

right-of-way purposes; promote the sharing of rights-of-way; protect

the quality of natural resources; prevent unnecessary environmental

damage to lands and resources; and protect the right-of-way holder's

investments in improvements on the right-of-way.

Statistics About Rights-of-Way

As of September 30, 1998, there were 87,511 active right-of-way

grants under BLM administration. Most of the grants are located in the

western states of Alaska, Arizona, California, Colorado, Idaho,

Montana, Nevada, New Mexico, Oregon, Utah, Wyoming, North and South

Dakota and Oklahoma. New Mexico had the largest number of grants, and

Wyoming had the next largest. There were 63 grants located east of the

Mississippi River. Of the right-of-way grants, approximately 28 percent

are for roads and highways, 28 percent represent oil and gas related

systems, 4 percent represent grants for communication sites, 13 percent

represent grants for electrical generation and transmission lines, and

27 percent are for other uses, such as telephone, telegraph, and other

miscellaneous systems.

III. Discussion of the Proposed Rule

Unless specifically stated in the discussion below, BLM does not

intend to make policy changes by rewording and streamlining the

regulatory text. If you believe that rewording the regulatory text has

resulted in BLM's eliminating or changing important concepts or

policies, please describe in your comments these modifications or

omissions and the reasons that you believe the regulations should

retain the concept from the existing regulations.

General Discussion

The discussions below affect more than one section of the proposed

regulations and contain proposed policy changes and the rationale for

them.

Cost Recovery Provisions

(Proposed sections 2803.14, 2804.16, 2883.11, and 2884.13, and subparts

2807 and 2887)

It may be helpful to read the preamble to the July 25, 1986,

proposed rules, published at 51 FR 26836, and to the July 8, 1987,

final rules at 52 FR 25802, to get more background information on

current cost recovery policies.

BLM proposes the following specific changes to the cost recovery

provisions:

Reduce the number of fee categories used for recovering

the cost of processing applications from five to four (for rights-of-

way issued under FLPMA) and from six to four (for rights-of-way issued

under the MLA);

Clarify the definition of the term ``category I, II,

etc.,'' to include processing steps and work hours;

Provide a ``master agreement'' category for multiple

applications submitted by a single applicant in a specific geographical

area;

Adjust the fees for both processing an application and for

monitoring any ensuing grant to reflect the reasonable (FLPMA) or

actual (MLA) costs and the effects of inflation;

Use proposed fees to determine the cost reimbursement fees

for assignments and renewals; and

Broaden the conditions under which BLM will require

advance payment of rents.

We expect that these proposed changes will shorten application

processing time, reduce costs, and result in a more equitable

distribution of business costs between the benefitting entity and the

general public.

Background for changes. Section 504(g) of FLPMA authorizes BLM to

recover the ``reasonable'' costs of processing and monitoring rights-

of-way issued under Title V, 43 U.S.C. 1761. Section 28(f) of the MLA,

30 U.S.C. 185(l), requires applicants for pipeline rights-of-way issued

under the MLA to reimburse the United States for the administrative and

other costs involved in processing applications and for the United

States' costs of monitoring activities under those grants. The

administrative and other costs associated with MLA grants are

collectively referred to as ``actual costs.''

Section 304(b) of FLPMA allows the Secretary of the Interior to

establish ``reasonable costs'' for processing applications and other

documents relating to public lands. Several factors that the Secretary

may consider in establishing reasonable costs include the costs of

special studies; preparing and distributing environmental documents,

such as environmental assessments and environmental impact statements;

monitoring the construction, operation, maintenance, and termination of

facilities; and other special activities.

BLM first issued cost recovery regulations for linear and areal

rights-of-way in 1979. The regulations for FLPMA rights-of-way were

successfully challenged in federal court in Nevada Power Co. v. Watt,

711 F.2d 913 (10th Cir. 1983), on the basis that the regulations did

not sufficiently consider each of the ``reasonability criteria'' in

section 304(b) of FLPMA, 43 U.S.C. 1734(b). BLM then developed

definitions for these criteria, which were published in July 1987.

Based on field studies conducted in 1982 and 1983, which measured

the costs of processing right-of-way applications and monitoring

grants, BLM developed a number of ``cost categories'' and the

corresponding average costs of processing applications that fall into

one or another of these categories. BLM broke the cost information into

various elements, e.g., filing, status review, field examination,

environmental considerations, and document preparation. For FLPMA

rights-of-way, BLM related these costs to the statutory reasonability

criteria and made decisions to: (1) retain the cost if it was

reasonable, (2) eliminate the cost if it did not meet the reasonability

requirements, or (3) adjust the cost downward, if it contained both

public and private benefits under the reasonability requirements. From

this analysis, BLM proposed four cost categories with fixed cost

recovery fee amounts and a fifth category, as described in the next

paragraph, requiring the full reasonable costs as determined by BLM.

[[Page 32108]]

In cases where a fixed fee amount would not be appropriate, such as

complex projects, BLM established a final category for the reasonable

costs of processing individual cases and of monitoring activities under

the grant. In these cases, each applicant had the options of: (1)

completely analyzing the estimated actual costs relative to the

reasonability criteria, (2) waiving the full analysis and completing a

less demanding analysis that could limit the costs recovered to 1

percent of construction costs, or (3) waiving these analyses and

agreeing to pay the full reasonable costs involved, as jointly

determined by BLM and the applicant.

For MLA rights-of-way, BLM also used the 1982 through 1983 field

studies to establish five fixed fee amount categories, each based on

its relevant average actual cost. A final sixth category requiring

periodic payment of actual costs was also included for these rights-of-

way.

At the time of the study BLM did not have sufficient cost data on

monitoring grants to determine the exact monitoring costs. To provide

some recovery of costs, BLM estimated the necessary monitoring cost for

each fixed fee category for both FLPMA and MLA rights-of-way.

FLPMA applicants could request that BLM review their specific

circumstances and consider a waiver or reduction in the amount of the

processing or monitoring fees or both. Current regulations exclude from

the cost recovery provisions certain applicants, such as federal

agencies, ``non-utility type'' state and local governments, and

applicants for ``cost-share'' roads and reciprocal right-of-way

agreements.

BLM conducted an extensive field study of processing and monitoring

costs in 1986. The study generally verified the processing costs

developed from the earlier study. The study also demonstrated that the

costs related to monitoring could be further refined. Current

regulations do not specify any method for increasing costs for

inflation or similar factors except for proposing a change in

regulations. As the cost of living has increased steadily for the last

40 years (the last yearly drop in the Consumer Price Index occurred in

1955), a mechanism for adjusting processing and monitoring fees is

desirable. BLM has looked at various indices, e.g., the Consumer Price

Index (CPI), the CPI-U (urban), and the Implicit Price Deflator-Gross

Domestic Product (IPD-GDP), that could be used to update fee schedules

periodically.

In 1995 the Inspector General (IG) for the Department of the

Interior audited BLM's cost recovery efforts on rights-of-way. The IG

found BLM's financial system was not adequate to give a good estimate

of the costs of the right-of-way program. The IG found that BLM's

processing fees were too low. The IG estimated costs from two

approaches: (1) examining randomly selected case files and estimating

the time required to perform the work involved and (2) polling BLM

personnel as to the amount of time spent on right-of-way casework. In

both cases the IG compared these estimates to the actual amount of cost

recovery money collected for the specific cases in (1) and (2). Based

on 75 sample cases and an estimated 3,000 cases per year, the IG

estimated that BLM was losing $640,000 per year in processing costs.

(The 3,000-case figure includes cases which, under current regulations,

are excluded from cost recovery.) The IG recommended that BLM revise

the regulations to recover all applicable costs.

BLM has adopted the IG's recommendations by proposing to: (1)

increase the processing and monitoring costs for right-of-way

applications, (2) provide for cost adjustments to accommodate increases

in the economic indicator reflecting the general cost of labor, and (3)

eliminate fixed dollar amounts from the regulations to allow for

periodic cost adjustments.

The following paragraphs describe the proposed changes to the cost

recovery provisions of the existing right-of-way regulations. Changes

would decrease the number of cost recovery categories for both FLPMA

and MLA applications and for monitoring categories, revise the

definitions of the categories, eliminate the automatic exemption from

paying processing costs for Federal agencies, and increase category

fees.

Cost recovery categories. Experience suggests a need for one less

fixed fee amount category for FLPMA applications processed under

proposed section 2804.20 and two less categories for MLA applications

processed under proposed section 2884.18. BLM rarely uses existing

Category IV for FLPMA applications or existing Categories IV and V for

MLA applications. These categories involved applications which

historically require multiple field examinations that are normally

associated with collecting original data to complete environmental

analysis or to verify the existence or absence of a threatened or

endangered plant or animal species. In these cases, the work involved

in processing the applications generally meets the criteria for

Category V for FLPMA applications and Category VI for MLA applications,

both of which address complex projects.

The proposed regulations at sections 2804.14 and 2884.12 would

remove the existing Category IV for FLPMA applications and Categories

IV and V for MLA applications. BLM would establish a new Category IV

for use with both types of applications. The new Category IV would

require the applicant to pay the full reasonable or actual cost to BLM

of processing right-of-way applications that require multiple field

examinations and collecting or verifying original data.

The proposed regulations at sections 2804.17 and 2884.13 establish

a ``master agreement'' category for both FLPMA and MLA right-of-way

applications. A master agreement is an agreement between BLM and you

that, among other things, specifies you will reimburse BLM for the full

reasonable costs of processing your application(s), if you are seeking

a FLPMA grant, or the full actual costs of processing your

application(s), if you are seeking an MLA grant. Paragraph (b) of

proposed section 2804.17 lists the areas of negotiation. The master

agreement application category is especially useful for MLA right-of-

way applications. Most MLA right-of-way applications filed with BLM

involve activities within a limited area, an oil and gas field of

relatively compact size. For example in New Mexico, an oil and gas

field about 50 miles by 50 miles was developed on or crossing BLM-

administered lands. In a 20-month period, developers filed some 205

right-of-way applications, each requiring individual category decisions

and the collection of separate fees. One developer filed about half of

the applications; another filed about 15 percent. A coordinated

agreement for processing multiple applications for rights-of-way

located in a limited area would have resulted in a more timely and

complete response for both BLM and the companies involved.

The proposed regulations specify what master agreements should

include, what BLM expects of applicants, and what applicants may expect

of BLM.

The Forest Service proposes a fee category called ``Minimal

Impact.'' The Forest Service considers this fee category to include

minor recreation activities in an area already approved or designated

in a forest plan for that use. Examples of ``minor recreation

activities'' would be a one-time permit for a wedding, a marathon, a

bike race, and a company picnic for more than 75 people. The Forest

Service proposes a flat fee of $75 for processing an application in the

Minimal Impact Category and no monitoring fee, since the authorization

covers a one-time event.

[[Page 32109]]

These activities do not qualify for grants issued under Title V of

FLPMA, and BLM does not propose to add a Minimal Impact Category to our

revised category list. If we did adopt a Minimal Impact Category, we

would charge the same fee as the Forest Service proposes. We invite

your comments on whether to include this category for short-term

activities authorized by temporary use permits issued under the MLA or

short-term grants issued under FLPMA.

Revised category definitions. Applicants for grants have requested

that BLM revise the existing category definitions. Applicants have

stated that the definitions of the categories do not clearly state

which costs to exclude or include. The proposed category definitions

attempt to better define the categories by stating what factors BLM

must consider in determining the application category. These factors

include (1) whether or not original data are needed, (2) whether or not

BLM must amend an existing land-use plan, (3) how many, if any, field

examinations are needed, and (4) the estimated number of work hours

needed to complete processing the application.

The current fee category for processing an application also

establishes the fee category for monitoring the subsequent grant. Once

BLM issues the grant, however, the situation may change from that

existing when the application was processed and require reevaluation of

monitoring costs. For example, the presence of an endangered species or

of an archaeological site may require numerous field observations by

BLM or the grant holder, especially during construction. Thus,

monitoring costs may increase.

Current fee schedules of processing and monitoring costs are

estimated average costs across BLM. The studies performed in 1986

tracked monitoring costs according to the category decisions for

processing. While normal statistical analysis would eliminate unusually

high or low values, the remainder, as an average, should account for

most of the variables between easy-to-hard processing and easy-to-hard

monitoring.

If BLM establishes monitoring fees separate from application

processing fees, we propose to establish the monitoring categories

based on the number of work hours involved, including the number of

field examinations needed to monitor the grant. These hour estimates

would be determined separately from the hour estimates for the

processing fee categories. For instance, Monitoring Category I would

consist of those grants that require less than 24 hours of work,

including field examinations; Monitoring Category II would consist of

those grants requiring between 24 and 36 hours of work, including field

examinations; and Monitoring Category III would consist of those grants

requiring between 37 and 50 hours of work, including field

examinations. If you believe that this is an inappropriate criterion

upon which to base monitoring categories, please suggest alternative

criteria.

Background for category fee amounts. Current regulations at subpart

2808 of this title set fees for processing and monitoring costs as

follows:

------------------------------------------------------------------------

Processing Monitoring

Category fee fee

------------------------------------------------------------------------

I............................................. $125 $50

II............................................ 300 75

III........................................... 550 100

IV............................................ 925 200

V............................................. Full reasonable costs

as required.

------------------------------------------------------------------------

Based on the field study of some 1600 cases, BLM should have

adjusted these fees in 1987, because of inflation and underestimating

costs, to:

------------------------------------------------------------------------

Processing Monitoring

Category fee fee

------------------------------------------------------------------------

I............................................. $175 $65

II............................................ 300 100

III........................................... 575 175

IV............................................ 820 200

------------------------------------------------------------------------

Current MLA regulations at subpart 2883 set application processing

and monitoring fees as follows:

------------------------------------------------------------------------

Processing Monitoring

Category fee fee

------------------------------------------------------------------------

I............................................. $125 $25

II............................................ 275 50

III........................................... 350 75

IV............................................ 600 150

V............................................. 1,000 250

------------------------------------------------------------------------

Based on the field study of more than 600 cases, BLM should have

adjusted the MLA fees in 1987 to:

------------------------------------------------------------------------

Processing Monitoring

Category fee fee

------------------------------------------------------------------------

I............................................. $150 $ 50

II............................................ 225 75

III........................................... 575 250

IV............................................ 750 350

V............................................. Full actual costs.

------------------------------------------------------------------------

Proposed fee amounts. Since the 1986 study, the cost of doing

business has continued to rise. The Consumer Price Index, used to

adjust the communication site rent schedule, and the Implicit Price

Deflator Index, used to adjust other schedules, have risen about 35 and

30 percent respectively. BLM calculated the proposed fee schedule for

FLPMA applications and grants by adjusting the detailed study figures

upward by 30 percent and rounded up to the nearest $10. This is the

proposed fee schedule for processing and monitoring FLPMA right-of-way

applications and grants:

------------------------------------------------------------------------

Processing Monitoring

Category fee fee

------------------------------------------------------------------------

I............................................. $230 $ 80

II............................................ 390 130

III........................................... 750 230

IV............................................ Full reasonable costs

as required.

Master agreement.............................. As negotiated.

------------------------------------------------------------------------

BLM calculated the proposed fee schedule for MLA applications and

grants in the same manner. The proposed fee schedule for these

applications and grants is as follows:

------------------------------------------------------------------------

Processing Monitoring

Category fee fee

------------------------------------------------------------------------

I............................................. $200 $70

II............................................ 290 100

III........................................... 750 330

IV............................................ Full actual costs.

Master agreement.............................. As negotiated.

------------------------------------------------------------------------

BLM sampled a number of cases in 1995. The sampling tended to agree

with the adjusted 1986 study figures. Five Category I cases ranged from

$125 to $510 to process, an average of about $200. Fifteen cases in

Category II ranged from $82 to $700 to process, with an average of

about $390. Only one Category III case was sampled, and its processing

cost was $600. Performing another extensive field cost study, such as

was done in 1986, would not produce sufficient new data to justify its

costs. Adding a ``master agreement'' category may remove about half the

cases which currently fall into Categories I through III.

Annual fee adjustments. The regulations also propose adjusting the

fee schedule for the following calendar year based on the previous

year's change in the Implicit Price Deflator-Gross Domestic Product

(IPD-GDP). BLM will round up changes to the nearest dollar. Review of

other economic indices, such as the Consumer Price Index, discloses

that these do not reflect a sufficiently high labor intensiveness to be

used to adjust the cost recovery fee structure. We believe, however,

that the IPD-GDP more closely reflects the relationship of labor to

other costs and can be used as an adjustment factor. BLM proposes to

use this index,

[[Page 32110]]

measured second quarter to second quarter, to adjust the fixed cost

recovery fees annually. Under the proposed regulations, each year BLM

would revise the fees, make copies of the revised fee schedule

available in BLM offices before the beginning of the next calendar

year, and post the fee schedule on the BLM Home Page on the Internet,

http://www.blm.gov.

Rents for communication site rights-of-way would continue to use

the Consumer Price Index because the rents are based on the population

served. The CPI reflects changes in the urban economy more accurately

than the IPD-GPD does.

If BLM adopts the increased cost recovery fee schedule as proposed,

adjusted for the inflation rate, the fee schedule will be published in

the Federal Register as part of the preamble to the final rule. The

preamble would make clear that the fees would rise each year based on

changes in the IPD-GDP.

If you believe that the proposed cost recovery fee increases are

unreasonable, or not in the public interest, please provide your

rationale and any suggestions you may have for alternative methods of

charging reasonable processing and monitoring fees for FLPMA and MLA

right-of-way applications.

Assignments and renewals. (Proposed subpart 2807). BLM proposes to

use the category fee schedules as the basis for establishing and

recovering the costs of processing assignments and renewals. Currently,

the fee for assignments is $50, and there is no fee for renewals. BLM

proposes to determine the appropriate category based on the estimated

time to process each request. For example, if the estimated time to

process an assignment for a FLPMA right-of-way is no more than 24 work

hours, the cost recovery fee would be the fee for a Category I

application. BLM specifically requests your comments on whether to use

the proposed cost recovery categories for assignments and renewals. If

you oppose the change, please suggest an alternative method of

recovering costs for processing assignments and renewals.

Cost Exemptions and Reductions

Background. Two final rulemakings, one on January 10, 1985, and the

other on September 5, 1986, established BLM's current policies with

respect to cost recovery for MLA grants. These policies are based on

the 1973 amendments to the MLA, which require applicants for MLA

rights-of-way or temporary use permits to reimburse the United States

for all administrative and other costs involved in processing

applications and in monitoring, operating, maintaining, and terminating

the MLA grants. Therefore, cost exemptions and reductions are not

available for MLA rights-of-way, except for those state and local

governments that are exempt from cost recovery under the current

regulations at 43 CFR 2883.1-1(a)(2).

The final rule of July 8, 1987, described BLM's policies associated

with determining the processing and monitoring costs for FLPMA right-

of-way grants. The rule defined the terms ``actual costs,'' which are

the resources expended in processing a right-of-way application and

monitoring the construction, operation, maintenance, and termination of

the project and its facilities. Actual costs, less management overhead,

form the amount to which BLM applies the ``reasonability factors''

listed in section 304(b) of FLPMA. For all but complex projects

(Category V), the reasonability factors have little or no effect on

actual costs. The rulemaking also defined the reasonability factors:

``monetary value of the rights or privileges sought,'' ``public

benefits,'' ``efficiency to government processing,'' and ``other

factors.'' The ``other factors'' definition provides the means for BLM

State Directors to reduce actual processing costs based on a wide range

of special circumstances, including unique instances of public benefits

or services. These reductions generally fall under the broad category

of ``hardship,'' that is, paying full reasonable costs would create an

undue hardship on the applicant.

The rule also established, as a method of computing reasonable

costs, an alternative which represented one percent of construction

costs. This alternative was based on the practice of the state of New

York, which charged corporations a maximum fee of one-half of one

percent of their actual construction costs to process their right-of-

way applications for non-residential projects and a maximum of 2

percent of actual construction costs for residential projects. This fee

included the costs of preparing environmental impact statements and

other processing activities. Finally, the rule exempted federal

agencies and state and local governments and their agencies and

instrumentalities from paying processing and monitoring costs.

Automatic exemptions. BLM considered eliminating the exemptions for

federal, state, and local governments to pay processing and monitoring

costs established by the July 8, 1987, final rule. This exemption,

under the current regulations, does not apply to municipalities that

derive the majority of their revenues from user fees. We decided

against proposing to eliminate the exemption for state and local

governments for several reasons, including the fact that these entities

comprise less than 10 percent of all applicants and grant holders.

Because of their small numbers, eliminating the automatic exemption for

them would not significantly decrease BLM's revenues from cost

recovery. Municipalities that derive the majority of their revenues

from user fees would continue to pay processing and monitoring costs.

Currently, many federal agencies fund the processing of FLPMA

right-of-way applications affecting their lands. The amount they pay is

determined through negotiations. This process does not always produce

consistency across BLM organizational units. BLM proposes to achieve

consistency by assigning each federal project to a category. The

category designation will enable other federal agencies to determine

their costs in advance and will also reduce the administrative

paperwork involved in federal transactions.

Eliminating the one percent alternative. As mentioned previously,

the July 1987 final rule established the payment of up to one percent

of actual construction costs as an alternative method of paying the

reasonable costs of processing right-of-way applications and monitoring

the issued grants. The approach was viewed to have several benefits:

(1) efficiency to both the applicant and BLM by avoiding complex data

collection and by eliminating complex cost calculations, (2) providing

an incentive to BLM to stay under the one percent cost level in

processing and monitoring activities, and (3) giving a readily

available dollar value for establishing a reasonable level of actual

cost reimbursement. The current regulations contain this alternative at

43 CFR 2808.3-1(f).

Although this alternative seemed to have merit at the time, in

practice it has been used only once, in resolving a situation in Public

Service Commission v. Watt. BLM has not done an analyses of why

applicants have not used this approach and will not speculate on the

reasons. We are proposing to eliminate the one percent alternative. If

you believe that we should retain this alternative, please provide the

rationale for doing so in your comments.

``Other factors.'' Current regulations at 43 CFR 2808.5 list a

number of factors which BLM State Directors may use to reduce or waive

processing and monitoring costs. Although the preamble to the July 1987

rule did not specifically state so, the factors are a list

[[Page 32111]]

of what could be termed ``hardship'' situations. BLM considers that

``hardship'' is one of the ``other factors'' which section 304(b) of

FLPMA allows BLM to consider in determining reasonable costs. Examples

of hardship situations include: (1) the project requiring the right-of-

way grant could not be built because the processing and monitoring

costs would be excessive, (2) public health and safety could be

compromised if the right-of-way project were not built, and (3) the

public benefits of the project greatly outweigh the costs. The language

at proposed section 2804.18, paragraph (b), called ``Other

considerations,'' lists possible hardship situations.

The proposed regulations at section 2804.18 attempt to clarify that

the exemptions and reductions listed apply to all FLPMA processing and

monitoring cost categories, not just those having the highest costs

(Category IV applications). In preparing the financial plans required

as part of the information for Category IV applications (see proposed

sections 2804.16(a)(3) for FLPMA applications and 2884.12 for MLA

applications) and in negotiating cost recovery master agreements (see

proposed section 2804.17 for FLPMA applications and section 2884.13 for

MLA applications), you should identify what you expect BLM to pay for

and what you expect to pay for. FLPMA applicants should also identify

any hardship factors that they believe apply to their project. BLM will

consider these factors during negotiations over the final processing

and monitoring costs.

Federal agencies may not qualify for cost reductions under the

hardship factors. They may, however, qualify for reductions under the

reasonability criteria as proposed at section 2804.18.

The following sections describe other proposed changes to the

existing regulations that do not involve fees. The proposed changes

involve a new customer service standard for processing applications,

organizational matters, clarifications of policies relating to rents

for both linear and communication-site rights-of-way, a description of

how the proposed regulations are organized, and when you may appeal BLM

decisions.

Customer Service Standards

Executive Order 12862, ``Setting Customer Service Standards,''

requires federal agencies to provide a standard of customer service

equal to the best in the business. To accomplish this, Executive

agencies should identify the customers that they serve, post customer

service standards and measure results against them, provide customers

with choices in both sources of service and means of delivery and make

information, services and complaint systems easily accessible.

The right-of-way program is committed to providing its customers

with excellent, efficient service. Through a series of internal policy

directives, starting in December 1995, program staff and managers have

streamlined right-of-way application processing by: (1) encouraging

applicants to file applications by fax and to pay by credit cards, (2)

reiterating the processing times stated in Manual sections, (3)

allowing applicants for MLA rights-of-way to file as part of their

applications for a permit to drill, (4) reaching an understanding with

State Historic Preservation Officers as to how BLM will conduct

cultural surveys and the State Historic Preservation Officers will

review applications and recommend provisions to preserve the cultural

values of lands affected by potential rights-of-way, (5) sending

customer service cards to right-of-way customers and requesting that

the customers rate BLM's service in specific areas, and (6) modifying

the financial system to assure that processing and monitoring fees go

directly to the field office that generates the fee.

The proposed regulations at section 2804.20(c) would further assist

the customer service effort by providing applicants with written

notices of when they can expect BLM to process their applications if

processing the application will take longer than the estimated time

periods. This information should assist applicants and grant holders in

planning for constructing or changing their projects.

Hazardous Materials

The proposed regulations would contain language addressing the

storing, transporting, and using of hazardous materials on right-of-way

grants as they relate to the following statutes: the Comprehensive

Environmental Response, Compensation, and Liability Act of 1980, 42

U.S.C. 9601 et seq. (CERCLA); the Resource Conservation and Recovery

Act, 42 U.S.C. 6991 et seq. (RCRA); the Clean Water Act, 33 U.S.C. 1251

et seq.; the Oil Pollution Act, 33 U.S.C. 2701 et seq.; and the

Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.

11001 et seq. CERCLA holds responsible parties liable for the costs of

cleaning up hazardous waste sites. RCRA sets minimum guidelines and

standards for manufacturing and disposal of hazardous and solid wastes.

The current regulations do not address hazardous materials. Because

of the importance of the safe use of rights-of-way and resource

protection, BLM decided to incorporate hazardous material provisions

into the proposed regulations. While most other BLM regulations do not

yet specifically address hazardous materials, BLM concluded that

addressing hazardous materials in the right-of-way regulations was a

suitable beginning. The proposed revisions include the following:

(1) Adding to the definitions section of the regulations at section

2801.5 several terms used in the acts: ``discharge,'' ``hazardous

material,'' and ``release;'' and

(2) Clarifying that there is no maximum limit for strict liability

for damages or injuries resulting from the actual or threatened

discharge or release of hazardous substances, as defined by CERCLA, at

section 2807.12.

These definitions and conditions would apply to part 2880 by cross

reference.

All the proposed changes follow the ``polluter pays'' principle. If

the grant holder is an innocent holder, he will still be held

responsible for all costs and clean up from an accident or the release

of hazardous substances. BLM believes that any other policy would shift

the liability from the holder onto the United States and would result

in less holder accountability.

We intend to add similar program-specific language to other

regulations as they are revised.

Organizational Matters

Regional offices. Utility and industry applicants have suggested

that BLM could shorten processing time for right-of-way applications if

we established one or more ``regional right-of-way offices'' solely for

processing applications involving cost recovery. BLM has not adopted

this approach in the proposed rule because establishing regional right-

of-way offices would fracture the existing interdisciplinary approach

to decisionmaking that BLM uses. Such offices would be understaffed, as

from time to time a variety of specialists are needed for advice on

proposed impacts or mitigation methods. Currently, BLM gets this

expertise from existing BLM offices where the specialists are

performing duties other than processing applications or monitoring

grants.

BLM is exploring the way that we process various applications. We

periodically look at ways to consolidate, simplify, and cut costs when

we process all types of applications. One possible way to cut costs and

maximize resources would be to have a single specialist do all field

examinations of a single site for which multiple

[[Page 32112]]

applications exist. For instance, when an oil and gas lessee needs

approval of an application for permit to drill and a right-of-way for a

road to the drill pad, a single specialist could visit the site and

gather the necessary data to serve the processing of both applications.

BLM welcomes any comments you may have on increasing our efficiency and

cutting the time for processing your applications.

Water power situations. Water power projects require a license from

the Federal Energy Regulatory Commission (FERC) under the Water Power

Act of 1920, as amended. If the project involves public lands, BLM must

also issue a right-of-way grant. There are some exceptions for

relicensing existing projects. FERC can collect costs incurred by it

and other Federal agencies, including BLM, from the water power

applicant or holder. This creates a potential double collection, where

both FERC and BLM could collect from the applicant/holder the costs of

a single project. To prevent this, BLM will only report to FERC those

processing and monitoring costs that are not associated with BLM

actions on the right-of-way application or grant. When a right-of-way

application or grant is not involved, BLM will report all of its costs

associated with a water power application or relicensing to FERC. The

language at proposed section 2804.24 reflects this policy.

Rents

Non-communication site rent payments. Section 504(g) of FLPMA

requires right-of-way grant holders to pay annually, and in advance,

the fair market value of their grant. This amount constitutes the

``rent'' for the grant. Originally, FLPMA allowed BLM to bill grant

holders for more than 1 year if the annual rent was less than $100.

Amendments in 1986 changed the provision to give private individuals

the option of paying annually or at some interval greater than 1 year

if their rent payments exceed $100 per year.

A March 1995 study by the Inspector General of the Department of

the Interior (IG) found that BLM had not established a cost-effective

system for billing annual rents. There was no minimum collection

amount, and BLM billed for all annual rents that exceeded $1 per year.

About 7,700 courtesy notices for bills of $34 or less were sent to

grant holders. The IG further noted that BLM annually sent over 14,000

bills to 21 grant holders. The IG recommended that BLM establish a

minimum rent collection amount and revise the right-of-way regulations

to provide for advance lump-sum payments covering more than 5 years

when the annual rent is less than $100 per year. Even so, a substantial

percentage of the bills for $34 or less represented 5 years' worth of

rent.

Based on the 1986 amendment to FLPMA and the IG's recommendations,

BLM proposes to modify the way that we bill right-of-way grant holders.

BLM must take steps to reduce the administrative workload that field

offices bear in billing grant holders annually for rents, collections

of rents, and proper depositing of the rents. Proposed section 2806.10

states that BLM may bill for rents annually or for periods of more than

1 year. Private individuals whose rent payments exceed $100 per year

may elect to make annual payments rather than lump sum payments.

Current policy requires advance rent payments in 5-year intervals if

the rent amount is less than $100. The proposed rule would change this

policy to allow BLM greater flexibility to address specific situations.

We invite suggestions and comments on how long the advance payment

period should be and what amount the annual rent payment should be to

trigger the advance or lump sum payment.

This proposed rule does not address either minimum rent amounts or

another IG recommendation, that of increasing the rent amounts on the

current linear rent schedule. A joint BLM-Forest Service team is

analyzing these recommendations and other concerns related to linear

rights-of-way.

We request your comments, however, on whether BLM should charge

fees for the late payment of rents. We are considering adding language

to the regulations which would allow us to collect fees for the late

payment of rents because (1) charging a fee for the late payment of

money owed is a normal business practice in the private sector, with

other federal agencies, and with other programs within BLM; (2) BLM is

incurring significant administrative charges for attempting to collect

late rent payments, without being able to recoup any of the

administrative costs; and (3) imposing a late charge may encourage

grant holders to make rent payments when they are due and avoid

possible termination of their grants. When BLM terminates a grant, we

may be able to recover rent payments owed under the Debt Collection

Improvement Act of 1996, 31 U.S.C. 3701 et seq., but cannot recover the

administrative costs associated with our prior collection efforts.

You can find regulatory provisions which allow for BLM's collecting

late payment charges at 43 CFR 2920.8(a)(3) and 43 CFR 4130.8-1(f). You

may review these provisions to assist you in making comments or

suggestions on whether BLM should charge a fee for late payment of

right-of-way rents.

If BLM decides to impose a late payment charge for delinquent

rents, we propose to base the charge on the method described at 43 CFR

4130.8-1(f). If we decide to use a different methodology, we will

describe the proposed method in a separate proposed rule.

Communication site rents. BLM proposes to amend the provisions for

communication site rents as follows:

Adding or revising various definitions related to rents

applicable to rights-of-way for communication sites;

Clarifying procedures promulgated in a final rule

published in November 1995 as to how BLM will apply the communication

site rent schedule in various circumstances; and

Adding a provision that explains how BLM determines the

``population served.'' We specifically invite your comments on whether

or not all rules concerning communication site management should be

segregated into a separate section of the right-of-way regulations. If

our analysis of the comments received on this proposed rule indicates

that a separate section for communication site management is

appropriate, BLM will adopt it in the final rule without any change in

the policies reflected in this proposed rule.

Background for changes to communication site right-of-way rents. On

November 13, 1995, BLM published regulations establishing a rental

schedule for communication uses in the Federal Register. The schedule

was the result of recommendations from the Radio and Television Use Fee

Advisory Committee and the General Accounting Office. BLM intended the

schedule to: (1) establish a fair and consistent approach for

determining rental payments, based upon using facilities at various

communication sites, (2) encourage tenants in a communication facility

to consolidate their separate authorizations into a single

authorization, and (3) reduce the number of disputes concerning rental

values. These changes reduced the costs of obtaining appraisals and

billing costs and minimized BLM involvement in managing the use and

occupancy of facilities.

The rent schedule bases rent on nine categories of communication

uses on BLM-managed lands and groups these uses into three major

categories: broadcast, non-broadcast and other. The ``broadcast''

category includes television, FM radio, rebroadcast devices, and cable

television. The ``non-

[[Page 32113]]

broadcast'' category includes commercial mobile radio service, cellular

telephone, private mobile communications, common carrier, and microwave

communications. The ``other'' category includes small, unobtrusive,

low-power uses serving small numbers of customers. Rents correlate with

the population of the community where the facility is located or that

it serves, or both. BLM uses the Rand McNally Commercial Atlas and

Marketing Guide to determine the population size of communities of

50,000 or more. For communities of less than 50,000 people, BLM uses

the category of use and the most recent Census Bureau census.

Before BLM established a schedule for communication site right-of-

way rentals, all such rents were determined through appraisal. All uses

within a facility generally required a separate right-of-way

authorization, and BLM appraised each use separately. Appraisals were

expensive and needed frequent updating to reflect changes in fair

market value. BLM administers approximately 3,200 rights-of-way for

communication sites, half of which pay no rent because they are exempt

under statutory and regulatory provisions. By implementing the rent

schedule, BLM no longer bills rent on an individual user basis. BLM now

requires only the facility owner to have an authorization for multiple

use occupancy and bases the rent on the highest value use in the

facility, plus 25 percent of the scheduled rent for each of the other

uses in, or associated with, the facility for which rent is to be paid.

The rent schedule identifies nine categories of use and nine population

strata. Uses serving larger populations generally have higher

associated rent values, as compared with those same uses serving

smaller populations.

BLM's rent schedule for rights-of-way devoted to communication uses

became effective on December 13, 1995. BLM decided not to implement the

new schedule until January 1, 1997, so that we could properly train

field personnel to apply it and could resolve any outstanding policy

issues. The Forest Service adopted a similar schedule through a policy

published in the Federal Register on October 27, 1995. Nineteen ninety-

seven was the first year of BLM's 5-year phase-in period for the new

schedule. During this year BLM received several questions from affected

grant holders about the schedule, but there were no protests filed that

resulted in appeals to IBLA. BLM and the Forest Service have jointly

developed policies and procedures to ensure that both agencies

consistently apply the schedule under similar circumstances, regardless

of which agency authorizes the communication use.

The changes contained in this proposed rule modify the regulatory

text to reflect what has been implemented through internal BLM and

Forest Service policy in the last 2 years. Unless otherwise specified,

these proposed regulatory revisions only clarify how BLM will apply the

schedule in various circumstances and will ensure that the schedule is

applied fairly and consistently for all uses and holders of

communication facilities located on BLM-managed lands. The proposed

revisions do not change the rental values assigned to the uses or

population strata of the original schedule.

The proposed regulations and policies are consistent with the

Telecommunications Act of 1996, 47 U.S.C. 332 note, and the various

General Services Administration government-wide policy bulletins on

determining the locations of telecommunications facilities, including

commercial antennas, on public lands.

New or revised definitions. (Section 2806.5). These definitions

would affect subpart 2806 only. BLM would:

Add new definitions for ``commercial purpose,''

``communication use rent schedule,'' ``facility manager,'' ``facility

owner,'' ``reselling,'' and ``site'; and

Revise the definitions for ``customer,'' ``tenant,'' and

``other communication uses'' category.

Adding a definition for ``commercial purpose'' would establish the

condition that must exist before BLM will charge rent. Adding a

definition for ``communication use rent schedule'' would identify all

the uses and population strata that are included in the rent schedule.

The proposed regulations use two new terms, ``facility manager''

and ``facility owner.'' A facility manager owns a communication

facility on public land, leases space to other tenants in the facility,

and has a communications authorization, usually a lease, but does not

have his or her own communications equipment in the facility. A

``facility owner'' owns a communication facility on public land, may or

may not lease space to other tenants in the facility, and has a

communications authorization, usually a lease, but has his or her own

communications equipment within the facility. The difference is that

the facility manager does not operate communication equipment for his

or her own use; the facility owner does. BLM is introducing these terms

because we charge rent only to those entities who hold authorizations.

Tenants and customers do not ordinarily pay rent to BLM.

Adding a definition for ``reselling'' is necessary, as reselling is

a critical component for determining whether an occupant is considered

a tenant, subject to rent, or a customer, not subject to rent.

Amending the definition of ``other communication uses, within the

overall definition of ``communication use rent schedule,'' to delete

the reference to passive reflectors as an example of an ``other

communication use'' is consistent with the intent of the November 13,

1995, preamble to the communication site regulations (60 FR 57068) and

with the Forest Service definition for this category. Amending the

definition of ``tenant'' to include the words ``or broadcast'' would

identify television or radio broadcast uses as a commercial activity

subject to rent when located in another's facility and would make it

consistent with the Forest Service definition of this term. Revising

the definition of ``customer'' to incorporate the changes for the

definition of ``tenant'' and to clarify the term would make it

consistent with the Forest Service definition of the term. Under the

proposed definition, BLM would exclude private and internal

communication uses located in another holder's facility, and not just

located in a commercial mobile radio service facility, for the purposes

of calculating rent.

Other changes proposed for applying the communication site use rent

schedule. (Proposed sections 2806.17 through 2806.27) BLM would remove

the statement at section 2803.1-2(d) that the rent schedule does not

apply to public telecommunication service operators providing public

television or radio broadcast services and who are granted a waiver or

reduction of rent. A similar statement appears, however, in proposed

section 2806.11. BLM may still grant reductions of rent for these uses

if the provisions of proposed section 2806.12 apply.

Section 2803.1-2(d)(2)(ii) now provides for a review of right-of-

way rents on a case-by-case basis 10 years after BLM issues the grants,

and no more than every 5 years after that, to determine whether rents

are appropriate. Such a request amounts to asking BLM to conduct an

appraisal, estimated to cost $2,000 each in 1995. If all holders were

to make such a request, right-of-way rental determinations for

communication uses would revert to the methods used before November

1995. This would greatly

[[Page 32114]]

increase costs (an estimated $3 million for the 1,500-plus

authorizations now subject to rent) and would negate the administrative

savings envisioned by using the new rent schedule. Proposed section

2806.17(a) directs BLM to review the rent schedule every 10 years to

ensure that the schedule reflects a rational fair market value estimate

and eliminates the provision that allows each holder to request one or

more reviews after 5 years.

Proposed sections 2806.17 through 2806.27 clarify how BLM would

apply the schedule in the various combinations of facility owners,

tenants, customers, and the types of uses and populations served by

these uses. These proposed sections would enable users and agency

personnel to fully understand how to apply the schedule, given the

varied circumstances that can exist. These provisions would not alter

any of the basic provisions of the current rental schedule. This

addition provides a basis for applying the communication use rent

schedule fairly and consistently by both BLM and the Forest Service.

One proposed change is to add the term ``site'' to the definitions

section at 2806.5 to clarify ``site'' and ``facility.'' These terms are

used throughout the proposed sections, particularly at proposed section

2806.19, How will BLM determine the rent for a single-use communication

facility? The term ``site'' is used to refer to the area, such as a

mountain top, which contains one or more communication facilities. The

term ``facility'' is used to refer to the authorized improvements

associated with a site, e.g., TV, radio, or cell phone antennae. A

single site may accommodate several facilities for a variety of

communication uses, some facilities serving metropolitan areas, such as

TV broadcast towers and antennae, and some serving local areas, such as

cellular phone antennae. The facilities located at a particular site

are there because the site allows the facilities to serve a particular

market or geographical area effectively.

Appeals section. The proposed regulations eliminate the existing

subpart on Appeals, subpart 2804, and propose to replace it with

references to the right of appeal at each point where you may appeal a

decision. If an appeal is authorized, the proposed rule references

``part 4.'' This proposed modification is meant only to improve the

organization of the rule. It is not intended to add or remove appeal

opportunities. Current regulations also contain references to the right

of appeal at each appealable decision point. BLM has issued proposed

regulations to revise and consolidate its appeals regulations at part

1840 and 1850 into a revised part 1840. (See 61 FR 54120 through 54141,

October 17, 1996.) If or when BLM promulgates revised appeal

regulations, this final revised rule will reflect them.

Reorganizing the Regulations

The proposed rule would reorganize the material and present it in

the order in which prospective applicants for rights-of-way across

public lands would need it. The proposed regulations also give

information about what is expected of right-of-way grant holders and

how BLM monitors the grants. This restructuring is meant to make the

regulations simpler to understand and is not meant to have any

substantive effect.

BLM proposes to adopt the preferred numbering system of the Office

of the Federal Register. The existing regulations indicate one section

as subordinate to another by using hyphens in the number. For example,

sections 2808.3-1 and 2808.3-2 are subordinate to section 2808.3. In

the proposed rule, sections are arranged sequentially, beginning with

the number ``0.'' For example, section 2804.10 is followed by

subordinate sections 2804.11, 2804.12, 2804.13, and so forth. In some

cases, these leading sections may serve only as main headings.

The following cross-reference table describes the major

organizational changes. Use the table as a guide to help you find where

provisions found in the current regulations appear, in either an

unchanged (except for style) or substantively revised form, in the

proposed regulations. Proposed new provisions and policy appear in the

text under both the GENERAL and SECTION-SPECIFIC DISCUSSIONS in the

preamble, not in the table that follows.

------------------------------------------------------------------------

Where is it now? Where would it go?

------------------------------------------------------------------------

Section 2800.0-1, Purpose.... Eliminated as redundant to material in

section 2801.7, What is the scope of

these regulations?

Section 2800.0-3, Authority.. Section eliminated. Authority appears in

introductory material at the beginning

of part 2800 under ``Authority''

heading.

Section 2800.0-5, Definitions Section changed and renumbered as section

2801.5, What definitions do I need to

know to understand these regulations?

Minor changes in definitions to reflect

plain language writing style.

Section 2800.0-7, Scope...... Text streamlined, reworded and renumbered

to appear in two sections: 2801.7, What

is the scope of these regulations? And

2801.8, Are there any rights-of-way

outside the scope of these regulations?

Section 2800.0-9, Information Text streamlined and moved to new section

collection. 2801.9, Does BLM have the authority to

ask me for the information required in

these regulations?

Section 2801.1-1, Nature of Text streamlined, reworded, and moved to

right-of-way interest. proposed section 2805.12, What rights

does the grant convey?, and 2805.13,

What rights does the United States

retain? References to temporary use

permits removed, as BLM proposes to

eliminate these instruments.

Section 2801.1-2, Reciprocal Text streamlined, reworded, and moved to

grants. proposed section 2805.13, What rights

does the United States retain?,

paragraph (d), as a potential condition

of issuing a grant.

Section 2801.2, Terms and Text streamlined, reworded, and moved to

conditions of grants. proposed section 2805.12, What rights

does the grant convey?, as follows:

(a)(1) to paragraph (c)(1); paragraph

(a)(2) to paragraph (c)(8); paragraph

(a)(3) to paragraph (c)(2); paragraph

(a)(4) to paragraph (c)(3); paragraph

(b)(1) to paragraph (c)(7)(i); paragraph

(b)(2) to paragraph (c)(7)(ii);

paragraph (b)(3) to paragraph

(c)(7)(iii); paragraph (b)(4) to

paragraph (c)(7)(iv); paragraph (b)(5)

to paragraph (c)(7)(v); and paragraph

(b)(6) to paragraph (c)(7)(vi).

Section 2801.3, Unauthorized Text streamlined and moved to proposed

use, occupancy, or subpart 2808, What do I need to know

development. about trespass?

Section 2801.4, Rights-of-way Text streamlined and moved to proposed

issued on or before October section 2801.7, What is the scope of

1, 1976. these regulations?

[[Page 32115]]

Section 2802.1, Text streamlined and moved to proposed

Preapplication activity. sections as follows: paragraph (a) to

2802.10, What lands are available for

FLPMA rights-of-way?; paragraph (b) to

proposed section 2804.13, Will BLM keep

my information confidential?; paragraph

(c) to proposed section 2804.14, Is

there a filing fee for my application?;

paragraph (d) to proposed section

2804.25, What can I do on the proposed

right-of-way while BLM is processing my

application?; and paragraph (e) to

proposed section 2804.10, What should I

do before I file my application?

Section 2802.2-1, Application Text streamlined and moved to proposed

filing. section 2804.11, Where do I file my

application?

Section 2802.2-2, Text streamlined, reworded, and moved to

Coordination of applications. proposed section 2804.12, What

information do I need to submit in my

application?, paragraph (b).

Section 2802.3, Application Text streamlined, reworded, and moved to

content. proposed section 2804.12, What

information do I need to submit in my

application?

Section 2802.4, Application Text streamlined, reworded and moved to

processing. proposed sections as follows: paragraph

(a) to proposed section 2804.21, Can BLM

reject my application?, for paragraphs

(1) through (5), and to proposed section

2804.20, How will BLM process my

application?, for the acknowledgment;

paragraph (b) eliminated because BLM

proposes to eliminate temporary use

permits and to replace them with short-

term right-of-way grants; paragraph (c)

to proposed section 2804.12, What

information do I need to submit in my

application?; paragraphs (d), (e) and

(h) to proposed section 2804.20, How

will BLM process my application?;

paragraph (f) to proposed section

2805.13, What rights does the United

States retain?, paragraph (e); and

paragraph (g) to proposed section

2805.11, When is the grant effective?

Section 2802.5, Special Paragraph (a) eliminated because the

applications procedures. grace period has expired; paragraph (b)

eliminated as redundant of text in other

parts of the regulations.

Section 2803.1-2, Rental..... Text streamlined and moved to proposed

subpart 2806, What information do I need

to know about rents for right-of-way

grants?, where there are separate

discussions of linear (sections 2806.14

through 2806.16, communication site

(2806.17 through 2806.27) and other

(2806.28) rents. Text also clarifies

treatment of different types of

communication sites, based on the

November 1995 regulations.

Section 2803.1-3, Competitive Text significantly streamlined and moved

bidding. to proposed section 2804.23, Do I always

have to submit an application for a

right-of-way to receive a grant?

Procedural detail removed as more

appropriate for internal agency guidance

and to allow greater flexibility in

using competitive bidding.

Section 2803.1-4, Bonding.... Text reworded and moved to proposed

section 2805.10, What rights does the

grant convey?, paragraph (c)(6).

Section 2803.1-5, Liability.. Text streamlined, reworded and moved as

follows: paragraph (a) to proposed

paragraph (a) of section 2807.12, For

what am I liable?; paragraph (b) to

proposed paragraph (b) of section

2807.12; paragraph (c) to proposed

paragraph (d) of section 2807.12;

paragraph (d) to proposed paragraph

(c)(6) of section 2807.12; paragraph (e)

to proposed paragraph (f) of section

2807.12; paragraph (f) to proposed

section 2807.13, What liabilities do

State and local governments have?;

paragraph (g) to proposed paragraph (c)

of section 2807.12; paragraph (h) to

proposed paragraph (f) of section

2807.12; and paragraph (i) to proposed

paragraph (e) of section 2807.12.

Section 2803.2, Holder Text streamlined, reworded and moved to

activity. proposed sections as follows: paragraph

(a) to proposed section 2807.10, When

can I start activities under my grant?;

and paragraph (b), (c) and (d) to

proposed section 2807.11, When must I

contact BLM?

Section 2803.3, Immediate Text streamlined, reworded and moved to

temporary suspension of proposed section 2805.17, Can BLM

activities. temporarily suspend my activities to

protect public health and safety and the

environment without providing an

administrative hearing?

Section 2803.4, Suspension Text streamlined, reworded, and moved as

and termination of right-of- follows: paragraphs (a), (b), (c) and

way grants. (d) to proposed section 2807.16, Can BLM

terminate or suspend my grant?;

paragraph (d) to proposed section

2807.17, How will I know that BLM

intends to suspend or terminate my

grant?, paragraph (a); and paragraph (e)

to proposed paragraph (c) of section

2807.16, Can BLM terminate or suspend my

grant?

Section 2803.1-4, Disposition Text streamlined, reworded and moved to

of improvements upon proposed section 2807.18, What happens

termination. to any improvements on my grant when it

terminates?

Section 2803.5, Change in Text streamlined, reworded, and moved to

Federal jurisdiction or proposed section 2807.14, What happens

disposal of lands. if BLM transfers management of the land

on which my grant is located to another

Federal agency or outside of public

ownership?

Section 2803.6-1, Amendments. Text streamlined, reworded, and moved to

proposed section 2807.19, When must I

amend my application or grant?

Section 2803.6-2, Amendments Text streamlined, reworded, and moved to

to existing railroad grants. proposed paragraph (c) of section

2807.19, When must I amend my grant?

Section 2803.6-3, Assignments Text streamlined, reworded, and moved to

proposed section 2807.20, May I assign

my grant?

Section 2803.6-4, Text streamlined, reworded, and moved to

Reimbursement of costs for proposed section 2807.21, What will BLM

assignments. charge for reviewing a request for

assignment?

Section 2803.6-5, Renewals of Text streamlined, reworded, and moved to

right-of-way grants and proposed section 2807.22, Can I renew my

temporary use permits. grant?

Section 2804.1, Appeals...... Subpart eliminated. Information about

actions which you may appeal appears in

the sections to which it applies.

Section 2806.1, Corridor Text streamlined and more simply worded.

designation. Material appears in renumbered section

2802.10, What lands are available for

right-of-way grants?

Section 2806.2, Designation Text streamlined and reworded. Material

criteria. appears in renumbered section 2802.11,

How does BLM designate corridors?

Section 2806.2-1, Procedures Text streamlined, reworded, and moved to

for designation. section 2802.10, What lands are

available for right-of-way grants?

[[Page 32116]]

Section 2807.1, Application Text streamlined, reworded, and moved to

filing. proposed section 2809.10, Can Federal

agencies get a right-of-way grant?

Section 2807.1-1, Document Text streamlined, reworded, and moved to

preparation. proposed section 2805.10, What does a

grant contain?

Section 2807.1-2, Reservation Text streamlined, reworded, and moved to

termination and suspension. proposed section 2807.16, Can BLM

terminate or suspend my grant?

Section 2808.1, General...... Text streamlined, reworded, and moved to

proposed section 2804.14, Is there a

filing fee for my application?,

paragraph (a).

Section 2808.2-1, Application Text streamlined, reworded, and moved to

categories. proposed section 2804.14, Is there a

filing fee for my application?,

paragraph (c).

Section 2808.2-2, Category Text streamlined, reworded, and moved to

determination. proposed section 2804.14, Is there a

filing fee for my application?,

paragraph (e) and (g).

Section 2808.3-1, Application Text streamlined, reworded, and moved to

fees. proposed sections as follows: paragraph

(a) to proposed section 2804.14, Is

there a filing fee for my application?,

paragraph (b); paragraph (b) to proposed

section 2804.14, paragraph (f).

Paragraphs (c), (d) and (e) to proposed

section 2804.16, How will BLM process my

Category IV application?; paragraph (f)

to proposed section 2804.18, Can BLM

reduce my reimbursement costs?,

paragraph (a)(2); paragraph (g) to

proposed section 2804.18, paragraph (e);

and paragraph (i) to proposed section

2804.18, paragraph (d).

Section 2803.3-2, Periodic Text streamlined, reworded, and moved to

advance payments. proposed sections as follows: paragraphs

(a) and (b) to proposed section 2804.16,

How will BLM process my Category IV

application?, paragraph (b); paragraph

(c) to proposed section 2804.14, Is a

filing fee for my application?,

paragraph (g); and paragraph (d)

eliminated, as this is redundant of

other sections, such as 2804.14.

Section 2803.3-3, Costs Text streamlined, reworded, and moved to

incurred for a withdrawn or proposed section 2804.22, Do I owe any

denied application. money if BLM rejects my application or I

withdraw my application?

Section 2803.3-4, Joint Text streamlined, reworded, and moved to

liability for payments. proposed section 2804.19, What happens

if there are two or more competing

applications for the same facility or

system?

Section 2808.4, Reimbursement Text streamlined, reworded, and moved to

of costs for monitoring. proposed section 2805.14, What are

monitoring fees?

Section 2808.5, Other cost Text streamlined, reworded, and moved to

considerations. proposed section 2804.18, Can BLM reduce

my reimbursement costs?

Section 2808.6, Action Text consolidated with that in current

pending decision and appeal. section 2808.5, reworded and moved to

proposed section 2804.18, Can BLM reduce

my reimbursement costs?

Section 2880.0-3, Authority.. Section eliminated. Material appears as

``Authority'' in the introductory

material at the beginning of part 2880.

Section 2880.0-5, Definitions Minor changes in definitions to reflect

plain language writing style. Definition

of ``public lands'' in proposed section

2801.5 replaced by definition of

``Federal lands'' in proposed section.

Section renumbered as 2881.5, What

definitions do I need to know to

understand these regulations?

Section 2880.0-7, Scope...... Text reworded into plain language and

appears in two proposed sections:

2881.7, What is the scope of these

regulations? And 2881.8, What grants are

not covered by these regulations?

Section 2881.1-1, Nature of Text streamlined, reworded, and moved to

right-of-way interest. proposed section 2885.11, What are the

terms and conditions of the grant or

permit? Cross references proposed

section 2805.10, for terms and

conditions in common with non-MLA rights-

of-way.

Section 2881.1-2, Nature of Same as entry above at section 2881.1-1.

temporary use permit.

Section 2881.1-3, Reservation Text streamlined and moved to proposed

of rights to the United section 2885.12, What are the terms and

States. conditions of the grant or permit?,

which cross references proposed section

2805.13, since many terms and conditions

are common to both types of rights-of-

way. Proposed section 2885.12 emphasizes

only those terms and conditions which

are MLA-specific.

Section 2881.2, Terms and Text streamlined and moved to proposed

conditions, interest granted. section 2885.12, What are the terms and

conditions of the grant or permit?

Section 2881.3, Unauthorized Text streamlined and moved to proposed

use, occupancy or subpart 2888, What general information

development. do I need to know about trespass?

Contains a cross reference to proposed

subpart 2808.

Section 2882.1, Text streamlined, reworded, and moved to

Preapplication activity. proposed sections as follows: paragraph

(a) to proposed section 2884.10, What

should I do before I file my

application?: paragraph (b) eliminated

as redundant of regulatory text

elsewhere, including subpart 2883, What

qualifications do I need to have to hold

an MLA grant or permit?; paragraph (c)

to proposed section 2884.12, Is there a

filing fee for my application?; and

paragraph (d) to proposed section

2884.22, What may I do on the proposed

right-of-way while BLM is processing my

application?

Section 2882.2-1, Application Text streamlined, reworded, and moved to

qualifications. proposed sections as follows: paragraphs

(a) and (b) to subpart 2803, What

qualifications do I need to have to hold

an MLA grant or permit?; and paragraph

(c) to proposed section 2884.16, What do

I file my application for an MLA grant

or permit?

Section 2882.2-2, Application Text streamlined, reworded, and moved to

filing. proposed section 2884.16, Where do I

file my application for an MLA grant or

permit?

Section 2882.2-3, Application Text streamlined, reworded, and moved to

content. proposed section 2884.11, What

information do I need to provide in my

application?

[[Page 32117]]

Section 2882.3, Application Text streamlined, reworded, and moved to

processing. proposed sections as follows: paragraphs

(a), (b), (f) and (g) to proposed

section 2884.18, How will BLM process my

application?; paragraph (c) to proposed

section 2884.11, Can BLM reject my

application?; paragraphs (d) and (h) to

proposed section 2884.19, Can BLM ask me

for additional information?; paragraph

(e) eliminated as redundant of other

text; paragraphs (i) and (j) to proposed

section 2884.23, When will BLM issue the

grant or permit?; paragraphs (k) and (l)

to proposed section 2885.10, When is the

MLA grant or permit effective?; and

paragraph (m) to proposed section

2885.11, What are the terms and

conditions of the grant or permit?

Section 2882.4, Interagency Text eliminated as redundant of other

agreements. text in other sections, such as proposed

sections 2884.10 and 2884.18.

Section 2883.1-1, Cost Text streamlined, reworded, and moved to

reimbursement. proposed section 2884.12, Is there a

filing fee for my application?

Section 2883.1-2, Rental Text streamlined, reworded, and moved to

payments. proposed section 2885.12, How much does

it cost to hold a grant or permit? Cross

references to proposed subpart 2806--

What information do I need to know about

rents for MLA right-of-way grants?

Section 2883.1-3, Bonding.... Text streamlined, reworded, and moved to

proposed section 2885.11, What are the

terms and conditions of the grant?, as a

condition of issuing the grant.

Section 2883.1-4, Liability.. Text streamlined, reworded, and moved to

proposed section 2886.15, For what am I

liable?, and proposed section 2885.13,

Who is liable for payments?

Section 2883.1-5, Common Text streamlined and incorporated as a

carriers. provision of the grant at proposed

section 2885.11, What are the terms and

conditions of the grant or permit?,

paragraph (c).

Section 2883.1-6, Export..... Text streamlined and incorporated as a

provision of the grant at proposed

section 2885.11, What are the terms and

conditions of the grant or permit?,

paragraph (b) on the terms and

conditions of use.

Section 2883.2, Holder Text streamlined, reworded, and moved to

activity. proposed sections as follows: paragraph

(a) to proposed section 2886.11, Who

regulates my activities?; paragraphs (b)

and (c) to proposed section 2886.13,

When must I contact BLM?; paragraphs

(d), (e) and (f) to proposed section

2887.10, What conditions require

amending a grant?

Section 2883.3, Construction Text streamlined, reworded, and moved to

procedures. proposed section 2886.10, When can I

start activities under my grant or

permit?

Section 2883.4, Operation and Text streamlined and consolidated with

maintenance. existing section 2883.3, Construction

procedures, into proposed section

2886.10, When can I start activities

under my grant or permit?

Section 2883.5, Immediate Text streamlined, reworded, and moved to

temporary suspension of proposed section 2886.18, When can BLM

activities. terminate or suspend my grant or permit?

Section 2883.6-1, Suspension Text streamlined, reworded, and moved to

and termination of permits. proposed section 2886.17, When can BLM

terminate or suspend temporary use

permits?, which cross references

proposed sections 2807.15 and 2807.16.

Section 2883.6-2, Suspension Section eliminated, as temporary use

and termination of temporary permits are covered in proposed section

use permits. 2886.17, When can BLM terminate or

suspend temporary use permits?

Section 2883.7, Change in Text streamlined, reworded, and moved to

jurisdiction or disposal of proposed section 2886.16, What happens

lands. if BLM transfers management of the land

on which my grant is located to another

agency or outside public ownership?

Section 2883.8, Restoration Text streamlined, reworded, and

of Federal lands. consolidated within proposed section

2885.11, What are the terms and

conditions of my grant or permit?, as a

provision of the grant or permit, cross

referenced to proposed subpart 2805--

What terms and conditions do grants

contain?

Section 2884.1, Appeals...... Section eliminated. Right of appeal noted

in text where appealable action is

discussed.

Section 2887.0-3, Authority.. Section eliminated. Act cited in

``Authority'' section as heading in the

introductory material before part 2880

listings begin.

------------------------------------------------------------------------

Additional reorganization may occur as a result of the public

comments received. The preamble to the final regulations will address

any additional reorganization of the regulatory text made as a result

of public comments.

Section-Specific Discussions

The material in this section describes proposed changes affecting a

single section and policies relating to the proposed changes. It also

describes new sections. Sections which consist entirely of language

rephrased from material in the current regulations without any other

changes are not discussed.

Part 2800

Section 2801.5, What definitions do I need to know to understand

these regulations? The discussions below pertain only to those

definitions proposed for change or proposed to be added.

The existing terms ``public service provided, ``cost incurred for

the benefit of general public interest,'' ``monetary value of the

rights and privileges sought,'' ``actual costs,'' ``management

overhead,'' and ``efficiency to Government processing,'' found at

section 2800.0-5, would be incorporated into section 2804.18, Can BLM

reduce my reimbursement costs?, as factors which BLM may consider in

determining whether or not to reduce the processing fee for all

categories of applications, including Category IV applications. The

terms ``road use, amortization and maintenance charges'' and ``written

demand'' would be removed because they are no longer used.

Three new terms, ``discharge,'' ``hazardous material,'' and

``release'' would be added to be consistent with the provisions of the

Clean Water Act and BLM's hazardous materials policies with respect to

the right-of-way program. BLM complies with these laws, but the current

regulations do not explicitly address their requirements. The terms

``discharge'' and ``release'' would have the meanings given at section

1321(a)(2) of the Clean Water Act and section 9601(22) of CERCLA,

respectively.

The new term ``hazardous material'' would cover the following

substances or materials:

[[Page 32118]]

(1) Any substance or material defined as a ``hazardous substance''

under CERCLA at 42 U.S.C. 9601(14),

(2) Any regulated substance in underground storage tanks, as

defined by the Resources Conservation and Recovery Act (RCRA) at 42

U.S.C. 6991 et seq.,

(3) ``Oil,'' as defined in the Clean Water Act at 33 U.S.C. 1321(a)

and the Oil Pollution Act at 33 U.S.C. 2701 et seq., and

(4) Other substances defined and regulated as ``hazardous'' by

applicable federal, state and local law.

BLM intends to use the term ``hazardous material,'' rather than

``hazardous substance,'' because the term is broader. Right-of-way

holders, including oil and gas pipeline companies, use, store or

transport various hazardous materials across public lands. BLM seeks to

protect the public lands from oil discharges and releases. The broad

definition also aligns with BLM's responsibility to minimize damage to

scenic and scientific values and fish and wildlife habitat, to protect

the environment from impacts resulting from issuing and using right-of-

way grants, and to protect the public lands from undue degradation.

The new term ``field examination'' defines one of the factors that

BLM will use to determine the category upon which to base processing

and monitoring costs. BLM proposes to base the definition on the number

of vehicles, rather than the number of people occupying the vehicles,

because we believe that measuring costs on the basis of trips will

encourage BLM to combine trips and use our expertise most efficiently.

You should compare the term ``public land'' at proposed section

2801.5 to the term ``federal land'' at proposed section 2881.5, What

definitions do I need to know to understand these regulations? The

lands available for right-of-way grants under FLPMA are different from

the lands available for grants and temporary use permits under the MLA.

Lands under BLM jurisdiction are called ``public lands'' for the

purposes of FLPMA. For the purposes of the MLA, the term ``federal

lands'' includes both lands under BLM jurisdiction and under the

jurisdiction of other federal agencies, state governments, and private

individuals (if the minerals were reserved to the United States.) Under

the MLA, BLM only issues grants on federal lands which are under the

jurisdiction of BLM or when a proposed use involves two or more other

federal agencies. Lands in the National Park Service System are

statutorily excluded from both MLA and FLPMA because they are

administered by the National Park Service and are generally not subject

to non-Park Service uses. Other lands excluded from right-of-way use

under both FLPMA and MLA are lands located on the Outer Continental

Shelf and those held in trust for Aleuts, Eskimos, and Indians.

The proposed regulations continue to define the terms ``right-of-

way'' and ``grant'' separately. The term ``right-of-way'' describes the

physical feature, the land, upon which the holder is exercising the

right to use or traverse the right-of-way. The term ``grant'' describes

the instrument (easement, lease, license, or permit) which gives the

holder authority to use or traverse the land for right-of-way purposes.

Although FLPMA uses the term ``right-of-way'' to describe both the land

and the instrument, in practice using the term in both ways has proven

confusing. The phrase ``authorizing the use of a right-of-way over,

upon, under or through public lands for construction, operation,

maintenance and termination of a project'' would be dropped from the

definition of ``right-of-way grant'' because it is redundant of

material found in the definition of the term ``right-of-way.'' The term

``grant'' does not imply the conveyance of the title.

The term ``temporary use permit'' would be removed and replaced by

a definition for ``temporary use.'' The term ``temporary use''

signifies BLM's intent to issue short-term grants issued under part

2800, when the use is of a temporary nature. We make this proposal

because, in practice, the same provisions apply to both use permits and

grants and because processing times for the two documents are similar.

The only difference between temporary use permits issued under part

2800 and grants is duration. The proposed change would also eliminate

confusion caused by using the term permit for both short-term grants

and permits for other uses authorized under part 2920. We are unable to

propose this change for rights-of-way issued under part 2880 because

the MLA specifically allows for temporary use permits. Therefore,

section 2881.5 retains a definition for ``temporary use permit.''

Section 2801.10, Severability. This new section would describe the

legal principle of ``severability'' and apply it to the regulations in

part 2800. Under severability, if any portion of these regulations were

found invalid as to a particular set of circumstances or particular

people, the remaining portions of the regulations would remain valid

and BLM could enforce them separately and legitimately. This principle

has always applied to the regulations but is stated here for

information and clarity.

Section 2802.10, What lands are available for right-of-way grants?

This section combines and retains the information found in the current

regulations at sections 2806.1, Corridor designation, and 2806.2-1,

Procedures for designation. It explains that the availability of land

for right-of-way use is tied to BLM's land-use planning process, which

may designate corridors and avoidance, exclusion and open areas.

Although BLM designates right-of-way corridors and issues grants within

these corridors to the maximum extent practical, it is not always

possible to restrict uses to designated corridors, in cases such as

rights-of-way connecting wells, residences, and buildings to existing

facilities.

New paragraph (c) suggests that you visit the BLM office nearest

you before you file an application for a right-of-way grant. During the

visit you can learn whether the land that you want to use is available,

what the qualifications are for holding a grant, what the application

requirements are and how long it may take BLM to process your request.

You can also learn if other federal and state agencies need to be

involved. (See also the discussion at proposed section 2804.10, What

should I do before I file my application?)

Section 2802.11, How does BLM designate corridors? This section

contains material currently found in the regulations at section 2806.2,

Designation criteria. The proposed rule would add two new criteria:

transportation and utility corridor studies developed by user groups

(paragraph (h)) and existing transportation and utility corridors that

are capable of accommodating additional compatible uses without further

review (paragraph (j)). Experience has shown that BLM managers use

these two factors, in addition to the others, in making decisions about

siting right-of-way corridors.

Subpart 2803, What qualifications must I meet to get a right-of-way

grant? The proposed regulations contain four new sections-- 2803.10,

Who can hold a grant?; 2803.11, Must I submit proof of my

qualifications with my application?; 2803.12, Can other people act on

my behalf?; and 2803.13, What happens to my grant if I die?--with

information about who may hold a grant. This information has not

appeared in the regulations at part 2800 since 1982, when BLM decided

to eliminate it and place it on the application form, SF-299. We

believe

[[Page 32119]]

that placing the qualifications information back in the regulations

will make it easier for individuals and groups to find information

about BLM's right-of-way program.

Section 2804.10, What should I do before I file my application?

This proposed section begins the completely revised subpart about

applying for grants. It contains a streamlined version of the material

currently found in section 2802.1, Preapplication activity, paragraphs

(a) and (e). BLM encourages anyone interested in obtaining a right-of-

way grant across public lands to visit the nearest BLM office to get

information about the right-of-way program, lands available for right-

of-way grants, and other factors affecting their applications. Visiting

BLM before filing your application may shorten the time that it takes

BLM to process your application and determine whether or not to issue a

grant. At this meeting, BLM may be able to provide you with an estimate

or informal determination of what it may cost to process your

application.

Section 2804.12, What information do I need to submit in my

application? Currently, this information is contained in several

subparts, including 2802 and 2808. BLM intends that this subpart

provide all the information that you may need to apply for a grant

issued under the provisions of FLPMA. The subpart presents the

necessary information in a sequence in which you might ask questions

about the application procedures.

The new language in this section would specify the form number of

the application, SF-299, and give a brief description of the

information that the form requires. This description is a condensed

version of the list of information in the current regulations at

section 2802.3, paragraph (a).

Section 2804.14, Is there a filing fee for my application? This

proposed section contains information from several sections of subpart

2808, including section 2808.1, General; 2808.2-1, Application

categories; 2808.2-2, Category determination; and 2808.3-1, Application

fees. The major changes contained in this section are discussed in the

``Cost Recovery Provisions'' section in the GENERAL DISCUSSION portion

of this preamble. These include: (1) Increasing application processing

and grant monitoring fees to reflect the reasonable costs of processing

and monitoring activities, (2) providing a mechanism to adjust these

fees based on changes in the ``Implicit Price Deflator-Gross Domestic

Product,'' (3) eliminating the automatic exemption from paying the

reasonable costs of processing applications and monitoring grants for

federal agencies, (4) eliminating the 1 per cent of construction costs

alternative to paying full reasonable processing costs; (5) reducing

the number of cost recovery categories for both FLPMA and MLA

applications; and (6) adding a new category, ``master agreement,'' to

cover multiple applications in a limited geographic area. Otherwise,

BLM proposes no policy changes except to reword the regulatory

provisions for clarity.

Section 2804.16, How will BLM process a Category IV application?

This new section provides information in one place about Category IV,

in which BLM recovers the ``full reasonable costs'' of processing

right-of-way grant applications under FLPMA. Currently, this

information is scattered throughout several sections of the

regulations, including 2808.2-1, Application categories; 2808.3-2,

Periodic advance payments; and 2808.4, Reimbursement of costs for

monitoring.

Section 2804.17, What is a master agreement and what does it

contain? This new section would give information about the proposed new

category called ``master agreements.'' As described in the ``Cost

Recovery Provisions'' section in the GENERAL DISCUSSION section of this

preamble, master agreements are optional but may be of use to

applicants or grant holders seeking multiple grants in a limited

geographical area. They are especially useful to developers of oil and

gas fields. These developers may need many grants to build access

roads, feeder lines, and pipelines to transport the product(s) from the

field. This section specifies what information master agreements must

contain.

Section 2804.18, Can BLM reduce my reimbursement costs? This

proposed section contains information about applying for a reduction of

processing and monitoring costs. The only policy changes from the

existing regulations are as follows: (1) The proposed section lists the

``reasonability'' criteria on which you may seek to reduce your

processing costs, and (2) the proposed section does not use the term

``waive.'' The term ``reduction'' as used in the proposed rule includes

a provision for a reduction to zero dollars. All other changes are to

increase clarity and your ease of finding and using the information

that you may need in order to seek a reduction of processing and

monitoring costs.

BLM believes that this provision needs to be clear, since we are

eliminating exemptions from processing costs for federal agencies

except for those exempted by statute. We welcome any comments that you

may have on ways to streamline the process for determining whether or

not we should grant your requests for reductions and on the types of

information needed to adjudicate such applications.

Section 2804.19, What happens if there are two or more competing

applications for the same facility or system? This new section

clarifies how BLM will assess processing costs in situations where

there is more than one applicant for a facility or system. This

discussion is separated by category because BLM expects that the first

three cost categories will not involve costs attributable to more than

one application.

Applicants for FLPMA Category IV applications are responsible for

all reasonable costs identifiable with their applications. For costs

that cannot be easily identified with a specific application, such as

the costs of preparing environmental impact statements, all applicants

will pay an equal share or a proportion agreed to in writing.

Section 2804.20, How will BLM process my application?, contains a

customer service standard at proposed paragraph (c). The standard

states that BLM will process your application for a right-of-way within

30 working days of receiving it if the application falls within the

criteria for Categories I through III and if BLM may categorically

exclude the action from environmental analysis or prepare an

environmental assessment for it. If BLM cannot process your application

within 60 working days, a BLM field official will notify you in writing

and give you an explanation for the delay and an estimated completion

date. If your application falls within the criteria for Category IV

application, a BLM field official will notify you in writing and give

you an estimated completion date. This standard is found in BLM Manual

Section 2801.35B1g2b(1) and is intended to make us more responsive to

right-of-way customers.

Section 2804.23, Do I always have to submit an application to

receive a right-of-way grant?, is an updated version of current section

2803.1-3, which describes in detail procedures for competitive leasing.

BLM proposes to update and streamline that section because it is seldom

used and contains guidance more appropriate for a Manual section or

handbook. The current regulation also restricts the use of competitive

bidding to site-type rights-of-way, and BLM wants to broaden the use of

competitive bidding to include other situations, such as rights-of-way

[[Page 32120]]

used for emerging technologies. The proposed regulation would broaden

competitive bidding to increase BLM's flexibility in using it for site-

specific situations.

Section 2805.10, What does a grant contain? This proposed section

contains material from the current section 2801.2, Terms and conditions

of interest granted, and new language concerning hazardous materials

and adjusting bond amounst. The new language about hazardous materials,

which appears as terms and conditions of use in paragraph (c), would

require grant holders to notify the appropriate authorities of actual

and threatened discharges or releases of hazardous materials, to handle

hazardous materials in a proper manner and to comply with all liability

and indemnification requirements and provisions. (See the discussion at

section 2807.10 of this preamble.) Because BLM believes that preventing

discharges and releases of hazardous materials into the environment is

a part of doing business, we propose to expand the language in this

section.

The new language concerning BLM's adjustment of bond amounts also

occurs in paragraph (c) of section 2805.10. Currently all grant holders

furnish a bond or other security to cover losses, damages, or injury to

human health, the environment, and property resulting from activities

on the right-of-way. The proposed provision allows BLM to decrease or

increase the amount of the bond to reflect changes in the risk

associated with changed conditions and the grant holder's record of

complying with the provisions of the grant.

Section 2805.12, What rights does the grant convey? This proposed

section contains material from current section 2801.1-1, Nature of

right-of-way interest, paragraphs (b) through (f) and (k), with no

proposed regulatory changes. This section describes the rights that the

grant gives you. They are only the rights expressly contained in the

grant and do not include any rights that the United States retains.

Your use of resources within the right-of-way is limited to project and

facility purposes but includes minor trimming, pruning, and clearing as

necessary. Your grant is limited to the activities necessary to build,

operate, maintain, and terminate the authorized project and facilities.

Section 2805.14, What are monitoring fees? and 2805.15, When do I

pay monitoring fees? The information about monitoring fees is included

in these two proposed sections in this subpart. Monitoring fees are

assessed when BLM issues the grant. Although not a term or condition of

the grant, payment of monitoring fees is a condition of obtaining the

grant. The language of proposed section 2805.14, paragraph (b), would

change if BLM decides to develop and administer monitoring fees and

categories separately from application processing fees. (See discussion

under ``Cost Recovery Provisions'' in the GENERAL DISCUSSION section of

this preamble.) If BLM decides to develop and administer monitoring

fees and categories separate from the processing fee categories, we

will repropose the regulations in this section and provide you with an

opportunity to comment on the proposed categories and fees only if we

do not adopt the proposal described in the ``Revised Category

Definitions'' section of the GENERAL DISCUSSION in this preamble.

Subpart 2806, What information do I need to know about rents for

right-of-way grants? For a discussion of the major policy changes to

the sections in this subpart, see the discussion of Rents in the

GENERAL DISCUSSION section of this preamble. All other changes proposed

are intended to improve the clarity and readability of the requirements

for paying rents under FLPMA grants, except for one proposed change.

This proposed change occurs at section 2806.11, Are there exceptions to

paying rents? This section describes the circumstances under which

there are exemptions from paying rents on grants. The Omnibus Parks and

Public Lands Management Act of 1996, which amended section 504(g) of

FLPMA, struck out the phrase ``financed pursuant to the Rural

Electrification Act of 1936, as amended, `` and replaced it with the

phrase ``eligible for financing pursuant to the Rural Electrification

Act of 1936, as amended, determined without regard to any application

requirement under that Act.'' This statutory change has caused some

large, for-profit utility grant holders to apply for rent reductions

under FLPMA.

In mid-1997 the Forest Service sought guidance from the Committee

on Natural Resources of the U.S. House of Representatives. The

Committee Chairman, Representative Don Young, responded by letter dated

October 1, 1997. In his letter, Mr. Young stated that the intent of the

statutory revision was to exempt all not-for-profit rural electric and

telephone cooperatives from paying rent on their grants, whether these

cooperatives had built their facilities with financing from the Rural

Utility Service or not. Mr. Young further stated that the Committee

believed that rural and electric cooperatives filled an essential need

by providing electric and telephone service in areas of difficult

terrain and low customer density. Based on this information, BLM

believes that the exemption from paying rents does not apply to all

utility holders, just those who can document their non-profit status as

defined in the Internal Revenue Code at section 501(c)(3).

BLM therefore proposes to amend the existing provision at section

2803.1-2(b)(1)(iii) to include non-profit electric and telephone

cooperatives that built facilities financed by or eligible for

financing from the Rural Utility Service. The revised text, at

paragraph (b) of proposed section 2806.11, would read: ``The facilities

constructed on the right-of-way were constructed with funds from the

Rural Electrification Act of 1936, as amended (REA), or are non-profit

rural electric or telephone cooperative facilities eligible for REA

financing; or are extensions of such facilities.''

Section 2806.14, What are the rent costs for linear rights-of-way?

would make one change to existing policy. Current policy states that

BLM will use the rent schedule for linear grants unless the grant meets

two criteria: the land value exceeds the area's value by at least a

factor of 10 and the expected rent is sufficient to warrant a separate

appraisal. Some linear uses of rights-of-way have a significant value

that is not related to land value. In these cases, the value comes from

the type of use. Because the criteria require both factors to be met

before BLM considers rent separately from the rent schedule, we must

currently use the rent schedule for these uses. Having to use the rent

schedule for these grants prevents us from collecting their fair market

value. If we could use other methods to determine rent for these

grants, we could collect fair market value, as required by FLPMA. We

therefore propose to separate the factors that we will use to determine

when not to use the linear rent schedule. See the language in the

current regulations at section 2803.1-2(c)(v)(A), and compare with the

proposed regulations at section 2806.14(a)(1).

Section 2807.12, For what am I liable?, contains the material in

the current regulations at section 2803.1-5, Liability. It contains new

language in two areas: (1) the maximum limit on the amount of damages

would rise from $1 million to $5 million, and (2) there would be no

maximum limitation on strict liability resulting from damages or

injuries caused by hazardous substances or as allowed by law. See the

discussion under ``Hazardous materials'' in the GENERAL DISCUSSION

section of this preamble.

[[Page 32121]]

Section 504(h) of FLPMA gives the Secretary of the Interior the

authority to promulgate regulations specifying the extent to which

right-of-way holders are liable to the United States for damages or

injuries resulting from occupying or using a right-of-way grant. The

provision further states that the regulation must include a maximum

limitation on damages comparable to the foreseeable risks and hazards

presented. Current regulations, promulgated in July 1980, set the limit

at $1 million. The proposed regulations would raise the limit to $5

million, owing to inflation and other factors.

The liability limit does not apply to damages or injuries resulting

from the discharge or release of hazardous substances as defined by

CERCLA of otherwise allowed by law. The Federal Court of Appeals in

United States v. Chromalloy American Corporation, 158 F.3d 345, 350

(5th Cir. 1998), recently cited CERCLA for the proposition that

``notwithstanding any other provision of law, a private party will

reimburse the United States for all costs incurred.'' The court held

that CERCLA establishes a federal action in strict liability that

allows administrators to recover damages quickly and does not place

limits on liability. CERCLA preempts the liability cap established by

FLPMA for hazardous substances only.

Eliminating the liability cap for hazardous substances also aligns

with BLM's policy of having the polluter pay. A grant holder is fully

liable for all clean-up and restoration costs, damages, fees, and

penalties assessed against the holder's storing or using hazardous

substances in developing, relinquishing, or using the right-of-way,

regardless of fault.

Section 2807.13, What liabilities do state and local governments

have? requires state and local governments or their agencies to furnish

a bond to protect the liability exposure of the United States from

claims by third parties.

Section 2807.20, May I assign my grant? contains the same customer

service standard for processing time as that of applications for

grants. This standard is adopted from BLM Manual Section

2801.35B1g2b(1) and estimates the processing time as 30 working days

for applications which do not require extensive administrative work. If

processing an application for assignment takes more than 60 days, BLM

will notify you in writing, explain the reason for the delay, and give

an estimated processing time.

Section 2807.21, What will BLM charge me to review a request for

assignment? BLM proposes to charge processing fees for assignments,

based on the category of the application, rather than the flat fee

currently charged. For this reason, the section contains a brief

statement of the way in which we will charge fees. The fee would be

charged based on the number of work hours involved in processing the

assignment. Generally, the work involves adjudicating the prospective

assignee's qualifications to hold the grant; visiting the project site

to determine the status of the project and whether or not operations

are in compliance with applicable statutes, regulations, and the terms

and conditions of the grant; and preparing the necessary legal

paperwork. BLM would estimate the work hours involved in these

activities, consult the schedule for the appropriate number of hours,

and charge accordingly. (See the discussion at the ``Assignments and

Renewals'' section under the GENERAL DISCUSSION in this preamble.)

Section 2807.22, Can I renew my grant? The proposed section

contains material from existing section 2803.6-5. Note that the

reference to ``temporary use permits'' has been eliminated because BLM

proposes to eliminate temporary use permits for rights-of-way issued

under FLPMA and replace them with short-term grants. The same customer

service standard for processing times would apply to applications for

renewal as to new applications.

Subpart 2808, What do I need to know about trespass? This proposed

subpart contains material currently found at Section 2801.3. The first

section, 2808.10, What is trespass?, briefly describes the term. The

next section, 2808.11, What will BLM do if it determines that I am in

trespass?, describes your liability if BLM determines that you are in

trespass. Liability includes monetary damages and rehabilitating,

restoring, and stabilizing any damaged areas. It also describes the

penalties that BLM may assess. Section 2808.12, May I receive a grant

if I am in trespass?, states that you should apply to BLM to determine

whether BLM will authorize your unauthorized use.

Part 2880

This proposed part describes provisions relating to grants issued

under the Mineral Leasing Act. Holders of these grants operate and

maintain oil and natural gas pipelines and related facilities which

have rights-of-way through public lands. This part summarizes or cross

references information found at part 2800 and highlights those

provisions which are peculiar to oil and natural gas pipeline systems

and facilities. BLM intends that the summary will provide readers with

enough information to determine whether they need to consult part 2800

for additional detail.

Section 2881.5, What definitions do I need to know to understand

these regulations? This proposed section starts a new part and contains

material relating to terms used in connection with grant holders whose

grants BLM issued under the terms of the MLA. These grant holders

operate and maintain oil and natural gas pipelines and related

facilities which use right-of-way corridors through public lands.

The proposed regulations in this section generally retain the

definitions found in the current regulations at section 2880.0-5. Major

differences between the definitions in proposed section 2800.5 and this

proposed section are the lands covered by the grant, ``federal lands,''

and terms related to the oil and gas resources and the pipeline

facilities for transporting them, that is, ``production facilities''

and ``related facilities.'' Other definitions should be identical,

however; and introductory language refers you to the definitions in

part 2800.

Section 2881.7, What is the scope of these regulations? The

definitions section defines the term ``production facilities.''

Paragraph (b) clarifies that the only facilities which require a grant

on an oil and gas lease are those that are both owned by a third party

and are downstream of storage tanks or a metering device.

Proposed Section 2881.9, Does BLM have the authority to ask me for

the information required in these regulations?, describes the

information collection requirements related to grants and temporary use

permits connected with oil and natural gas pipelines and their related

facilities. This would be a new section and would comply with the

Office of Management and Budget's guidelines concerning the reporting

requirements for regulations to comply with the provisions of the

Paperwork Reduction Act of 1995.

Section 2881.10, Severability. This new section is a counterpart to

proposed section 2801.1. It applies the legal principle of

``severability'' to the regulations in this part. The principle has

always been true of these regulations but would be stated here for

clarity and understanding.

Subpart 2882, What lands are available for MLA grants and permits?.

This proposed subpart is a summary of the information presented at

subpart 2802. It has no counterpart in the current regulations at part

2880. BLM

[[Page 32122]]

uses its planning process to make decisions about land uses and

restrictions on their use, including decisions on whether to allow

pipeline corridors through federal lands in particular locations.

Subpart 2883, What qualifications do I need to hold an MLA grant or

permit?, describes the qualifications that entities need in order to be

issued and to hold a grant or permit under the Mineral Leasing Act

(MLA). These qualifications are given in the MLA and repeated in the

current regulations at 43 CFR 2882.2-1. The proposed regulations make

no changes except for rewording the material into plainer language.

Section 2884.19, How will BLM process my application?, applies the

same customer service standard to processing applications for MLA

grants as for FLPMA grants. This standard states that, for Category I

through III applications, BLM will process your application within 30

working days of receiving it. If BLM cannot process the application

within 60 working days, a BLM field official will provide you with a

written explanation of the delay and an estimated completion time for

processing the application. If you have a Category IV application, BLM

will provide you with a written estimate of the estimated processing

time.

Subpart 2885, What are the terms and conditions of MLA right-of-way

grants and permits?. This subpart describes those terms and conditions

which are specific to MLA grants and permits. BLM is retaining the term

``temporary use permit'' for MLA rights-of-way because the statute

specifically refers to these instruments. Proposed section 2885.12,

What are the terms and conditions of the grant or permit? cross

references section 2805.12 for terms and conditions common to both

types of grants. Proposed paragraph (b) describes those conditions

specific to these types of grants and permits: restrictions on

exporting domestically produced crude oil and on pipeline diameters and

requirements to use the pipeline as a common carrier.

IV. Procedural Matters

The principal authors of this proposed rule are Ted Bingham,

Arizona State Office; Priscilla McLain, Oregon State Office; Ron

Montagna, Washington Office; and Bil Weigand, Idaho State Office, with

the assistance of staff from the Regulatory Affairs Group. The authors

considered the following requirements in preparing the proposed rule:

National Environmental Policy Act

BLM has prepared an environmental assessment (EA) and found that

the proposed rule would not constitute a major federal action

significantly affecting the quality of the human environment under

section 102(2)(C) of the National Environmental Policy Act of 1969, 42

U.S.C. 4332(2)(C). BLM has placed the EA and the Finding of No

Significant Impact (FONSI) on file in the BLM Administrative Record at

the address previously specified. BLM invites the public to review

these documents by contacting us at the address listed above (see

ADDRESSES) and suggests that anyone wishing to comment in response to

the EA and FONSI do so in accordance with the Written Comments section

above or contact us directly.

Paperwork Reduction Act

BLM has submitted an information collection package to the Office

of Management and Budget for its approval of the information

requirements contained in subparts 2802, 2803, 2805, 2806, 2882, 2883,

and 2884 of the proposed rule under the requirements of the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq. Proposed changes in the

regulations may increase processing and monitoring fees for all

applicants subject to cost recovery fees for grants and could increase

the number of applicants seeking a reduction of processing and

monitoring fees. BLM expects the public reporting burden of these

proposed regulations to be as follows: preparing Plans of Development,

40 hours per response; negotiating master agreements, 30 hours per

response; providing maps of projects, one-half hour per response;

providing detailed ``as built'' maps, 8-16 hours per response for

Category I through III applications and 120 hours per response for

Category IV applications; providing BLM with copies of certificates,

permits, and approvals from other agencies, one-half hour per response;

getting copies of location maps from state and local governments, one-

half hour per response; applying for processing cost reductions, 2.5

hours per response; and providing information about multiple tenants at

communication site grants, 1 hour per response. These estimates include

the time for reviewing instructions, searching existing data sources,

gathering and maintaining the data needed, and completing and reviewing

the collection of information.

We specifically request your comments on: (1) whether the proposed

collection of information is necessary for the proper performance of

the functions of the agency, including whether the information will

have practical utility; (2) the accuracy of BLM's estimate of burden of

the proposed collection, including the validity of the methodology and

assumptions used; (3) ways to enhance the quality, utility and clarity

of the information to be collected; and (4) ways to minimize the burden

of the collection of information on those who are to respond, including

the use of appropriate automated, electronic, mechanical, or other

technological collection techniques or other forms of information

technology. BLM will receive and analyze any comments sent in response

to this notice and include them in preparing the final rule.

Send comments regarding this information collection, including

suggestions for reducing the burden, to: Office of Management and

Budget, Interior Desk Officer (1004-NEW) or (1004-0060), Office of

Information and Regulatory Affairs, Washington, D.C. 20503, and

Information Collection Clearance Officer (WO-630), Bureau of Land

Management, 1849 C St., N.W., Mail Stop 401 LS, Washington, D.C. 20240.

Regulatory Flexibility Act

Congress enacted the Regulatory Flexibility Act of 1980 (RFA), 5

U.S.C. 601, to ensure that government regulations do not unnecessarily

or disproportionately burden small entities. The RFA requires a

regulatory flexibility analysis if a rule would have a significant

economic impact, either beneficial or detrimental, on a substantial

number of small entities.

BLM has determined under the RFA that this proposed rule would not

have a significant impact on a substantial number of small entities.

Current data collection categories do not allow us to determine who

among the grant holders is a small business; therefore, we have no

accurate data on the number of small entities affected by these

regulations. The proposed processing and monitoring fees would increase

for all applicants and grant holders, including small businesses. This

fee increase may increase the number of applicants seeking reductions

of recoverable costs, including small businesses.

In the past, small entities may have qualified for reductions under

the criteria. Small businesses which would be adversely affected by the

increased processing and monitoring fees could apply for reductions on

a case-by-case basis; and, in those cases where they qualified, could

get them. Increases in the categories most likely to affect small

[[Page 32123]]

businesses--Categories I and II--are 83 percent and 30 percent

respectively (processing costs) and 60 percent and 73 percent

(monitoring costs) for FLPMA applications and 60 percent and 5 percent

(processing costs) and 280 percent and 200 percent (monitoring costs)

for MLA applications respectively. Even if, under the proposed rules,

small entities do not qualify for exemptions, the fee increases for the

categories for which they would most likely apply are the lowest

processing fees assessed: $230 and $390 (processing costs) and $80 and

$130 (monitoring costs) for FLPMA applications and $200 and $290

(processing costs) and $70 and $100 (monitoring costs) for MLA

applications.

BLM considered eliminating the current automatic exemptions from

paying FLPMA processing and monitoring costs for all governmental

entities--federal, state, and local--as a means of recovering more of

the costs or processing applications and monitoring issued grants.

Analyses of applicants and right-of-way holders indicate, however, that

state and local governments constitute in total less than 10 percent of

all current applicants. Based on economic return alone, eliminating the

automatic exemption for these entities is not warranted. Further, many

local governments that are affected by BLM regulations qualify as small

entities under the RFA. Eliminating the automatic exemption for local

governments could increase their operating costs by requiring them to

apply for a reduction of processing and monitoring costs without any

corresponding overall public benefit.

BLM therefore proposes to retain the automatic exemption for state

and local governments but to charge federal agencies for cost recovery

if those federal agencies are not exempted by law from paying

processing and monitoring fees. We propose to eliminate the automatic

exemption for federal agencies because many already pay these costs

through interagency agreements with BLM and because there would be

greater uniformity of charges to the federal agencies.

Unfunded Mandates Reform Act

The proposed rule will not result in any unfunded mandate to any

state, local or tribal government in the aggregate, or to the private

sector, of $100 million or more in any one year. The proposed

regulations would pose no additional burdens on these governmental

entities, as the exemptions from paying processing and monitoring fees

for state and local governments would remain, and so would the

procedures for processing applications and monitoring grants.

Executive Order 12612

The proposed rule will not have a substantial direct effect on

states, on the relationship between the national government and the

states, or on the distribution of power and responsibilities among the

various levels of government. The elements which this rule proposes to

change--principally, increased processing and monitoring costs--do not

have sufficient federalism implications to warrant preparing a

federalism assessment.

Executive Order 12630

The proposed rule does not represent a government action capable of

interfering with constitutionally protected property rights. Section

2(a)(1) of EO 12630 specifically exempts actions abolishing regulations

or modifying regulations in a way that lessens interference with

private property uses from the definition of ``policies that have

takings implications.'' The proposed rule was written with the intent

not to increase the regulatory burden on the regulated public. The

regulations only apply to public and federal lands over which BLM has

jurisdiction and do not change the terms and conditions of existing

grants and temporary use permits. Therefore, the proposed rule will

impair no private property rights. The Department of the Interior has

determined that the rule would not cause a taking of private property,

or require further discussion of takings implications under this EO.

Executive Order 12866

The proposed rule would not cause economic impacts of $100 million

or more per year, does not propose any novel policy changes, cause

significant sectoral impacts, or conflict with any other regulations.

Although the proposed rule is not ``significant,'' as defined under EO

12866, the rule is important because it provides the public with

information about a needed and wanted service: the use of public lands

for right-of-way purposes, when there is no choice as to the provider,

BLM. At a maximum, the proposed changes have an economic impact of

approximately $12 million annually, as described in this section.

Section 304 of the Federal Land Policy and Management Act allows

the Secretary of the Interior to charge ``reasonable filing and service

fees and reasonable charges and commissions with respect to

applications and other documents relating to the public lands.''

Section 28(f) of the Mineral Leasing Act requires applicants for oil

and gas pipeline rights-of-way to reimburse the United States for the

administrative and other costs, i.e., ``actual costs,'' of monitoring

activities under their grants.

The estimated maximum increase in fees generated by the proposed

regulations is $2.7 million annually. Entities adversely affected by

these increases may qualify for fee reductions, in some cases to no

fees. Those entities already granted fee reductions will retain their

reductions for future applications. Those entities exempted by law from

paying processing and monitoring fees will continue to be exempted. For

those having to pay, the proposed processing fee increases range from 6

to 114 percent ($15 to $400), with an overall average of $148. The

proposed monitoring fee increases range from 60 to 313 percent ($30 to

$265), with an overall average of $81.

On a percentage basis, the monitoring fee increases proposed are

higher than the proposed processing fee increases. The higher

percentage increase results from several factors: (1) when BLM

established the current monitoring fees, it did not have accurate data

about the costs of constructing, operating, and terminating facilities

within right-of-way grants; and (2) the policy that BLM uses to charge

for monitoring fees does not reflect changes in resources present in

the right-of-way over time. For example, BLM's policy is that the

processing category of the application determines the category of the

monitoring fee. An application that required minimal processing time

might require considerably more time to monitor if an endangered

species moved into the grant area. Using the same processing and

monitoring fee categories would result in a revenue loss. We are

therefore requesting comments on whether to continue the practice of

having the processing category determine the monitoring fee category.

Statutory language in the Omnibus Parks and Land Management Act of

1996 could adversely affect the rent revenue by increasing the number

of facilities exempt from paying rent. Section 504(g) of the Federal

Land Policy and Management Act (FLPMA) specifies that rents for rights-

of-way are equivalent to the fair market value of the grant and that

the Secretary of the Interior may charge less rent to federal agencies,

state and local governments, and non-profit associations and

coporations not owned by profit-making associations, especially those

non-profit associations financed with funds from

[[Page 32124]]

the Rural Electrification Act of 1936, as amended (REA). The Omnibus

Act changed FLPMA's statutory language from ``financed pursuant to the

Rural Electrification Act of 1936, as amended,'' to ``eligible for

financing pursuant to the Rural Electrification Act of 1936, as

amended, determined without regard to any application requirement under

the Act.''

The impact of this change could range economically from minimal to

the loss of BLM's entire annual rental revenue, $9.5 million in fiscal

year 1998, depending on what ``eligible for financing pursuant to the

Rural Electrification Act'' means. Unlike processing and monitoring

fees, which return to the BLM offices administering the right-of-way

program, rent payments are deposited into the general revenues of the

U.S. Treasury. Their loss would deprive the federal government and the

general public of money which could be used for public purposes. BLM

has adopted the position of Chairman Don Young of the Committee on

Natural Resources on the meaning of the phrase ``eligible for REA

financing.'' Chairman Young stated in a letter to the U.S. Forest

Service that the intent of the language was to exempt all not-for-

profit rural electric and telephone cooperatives from paying rent on

their right-of-way grants, whether or not these cooperatives had built

their facilities with financing from the Rural Utility Service. (The

Rural Utility Service is the federal agency that implements the REA.)

Chairman Young did not intend that large, for-profit corporations,

which build facilities eligible for REA financing, be able to get rent

reductions. (See the preamble discussion at section 2806.11, Are there

exceptions to paying rents?, for a discussion of this point.)

Other proposed regulatory revisions clarify existing right-of-way

regulations pertaining to determining rents for communication site

rights-of-way but have no direct economic effects. The clarifications

do not propose new or novel policies relating to communication site

rights-of-way or increase the rent amounts.

Executive Order 12866 requires each agency to write regulations

that are easy to understand. We invite your comments on how to make

this proposed rule easier to understand, including answers to questions

such as the following: (1) Are the requirements in the proposed rule

clearly stated?; (2) Does the proposed rule contain technical language

or jargon that interferes with its clarity?; (3) Does the format of the

proposed rule (grouping and order of sections, use of headings,

paragraphing, etc.) aid or reduce its clarity?; (4) Would the rule be

easier to understand if it were divided into more but shorter sections?

(A ``section'' appears in bold type and is preceded by the symbol

``Sec. '' and a numbered heading; for instance, Sec. 2803.10, Who can

hold a grant?); and (5) Is the description of the proposed rule in the

``supplementary information'' section of this preamble helpful in

understanding the proposed rule? What else could we do to make the

proposed rule easier to understand?

Send a copy of any comments that concern how we could make this

proposed rule easier to understand to: Office of Regulatory Affairs,

Department of the Interior, Room 7229, 1849 C St., NW, Washington, D.C.

20240. You may also e-mail the comments to: E[email protected].

Executive Order 12988

The Department of the Interior has determined that this rule meets

the applicable standards provided in section 3(a) and 3(b)(2) of the

order.

List of Subjects

43 CFR Part 2800

Communications, Electric power, Highways and roads, Penalties,

Public lands and rights-of-way, and Reporting and recordkeeping

requirements.

43 CFR Part 2880

Administrative practice and procedures, Common carriers, Pipelines,

Public lands rights-of-way, and Reporting and recordkeeping

requirements.

Dated: May 4, 1999.

Sylvia V. Baca,

Acting Assistant Secretary, Land and Minerals Management

For the reasons set out in the preamble and under the authority of

the Federal Land Policy and Management Act, 43 U.S.C. 1701 et seq.; the

Mineral Leasing Act of 1920, as amended, 30 U.S.C. 181 et seq.; and the

Secretary's enforcement powers, BLM proposes to revise parts 2800 and

2880 of Title 43 of the Code of Federal Regulations as follows:

1. Revise part 2800 to read as follows:

PART 2800--RIGHTS-OF-WAY, PRINCIPLES AND PROCEDURES

Subpart 2801--What General Information Do I Need To Know About the

Right-of-Way Program?

Sec.

2801.5 What definitions do I need to know to understand these

regulations?

2801.7 What is the scope of these regulations?

2801.8 Are any rights-of-way outside the scope of these

regulations?

2801.9 Does BLM have the authority to ask me for the information

required in these regulations?

2801.10 Severability

Subpart 2802--What Lands Are Available for Right-of-Way Grants?

2802.10 What lands are available for right-of-way grants?

2802.11 How does BLM designate corridors?

Subpart 2803--What Qualifications Must I Meet To Get a Right-of-Way

Grant?

2803.10 Who can hold a grant?

2803.11 Must I submit proof of qualifications with my application?

2803.12 Can other people act in my behalf?

2803.13 What happens to my grant if I die?

Subpart 2804--How Do I Apply for a Right-of-Way Grant?

2804.10 What should I do before I file my application?

2804.11 Where do I file my application?

2804.12 What information do I need to submit in my application?

2804.13 Will BLM keep my information confidential?

2804.14 Is there a filing fee for my application?

2804.15 Am I exempt from paying cost recovery charges?

2804.16 How will BLM process my Category IV application?

2804.17 What is a master agreement and what does it contain?

2804.18 Can BLM reduce my reimbursement costs?

2804.19 What happens if there are two or more competing

applications for the same facility or system?

2804.20 How will BLM process my application?

2804.21 Can BLM reject my application?

2804.22 Do I owe any money if BLM rejects my application or if I

withdraw my application?

2804.23 Do I always have to submit an application for a right-of-

way to receive a grant?

2804.24 Do I have to pay the costs of processing BLM rights-of-way

associated with Federal Energy Regulatory Commission (FERC)

licenses?

2804.25 What can I do on the proposed right-of-way while BLM is

processing my application?

Subpart 2805--What Terms and Conditions Do Grants Contain?

2805.10 What does a grant contain?

2805.11 When is the grant effective?

2805.12 What rights does the grant convey?

2805.13 What rights does the United States retain?

2805.14 What are monitoring fees?

2805.15 When do I pay monitoring costs?

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Subpart 2806--What Information Do I Need To Know About Rents for Right-

of-Way Grants?

2806.5 What definitions do I need to know to understand these

regulations?

2806.10 Must I pay rent for using my right-of-way?

2806.11 Are there exceptions to paying rents?

2806.12 Can my rent be reduced?

2806.13 What happens if I default on my rent payment?

2806.14 What are the rent costs for linear rights-of-way?

2806.15 Does the linear rent schedule ever change?

2806.16 How will BLM calculate my rent for linear rights-of-way

covered by the schedule?

2806.17 What are the rent costs for communication facilities or

uses?

2806.18 How does BLM calculate rent for communication uses?

2806.19 How will BLM determine the rent for a single-use

communication facility?

2806.20 How will BLM calculate the rent for a multiple use

communication facility?

2806.21 How will BLM calculate rent for private mobile radio

service (PMRS), internal microwave and ``other'' category uses?

2806.22 How will BLM authorize and calculate rent for customers and

tenants who choose to have their own right-of-way facility to be

used in common with an existing right-of-way of the owner of a

communication facility that they use or occupy?

2806.23 How will BLM calculate rents as to ``shared facilities'' or

for multiple facilities that are under one authorization?

2806.24 How does BLM calculate rent for a facility manager use?

2806.25 How does BLM calculate rent for ancillary uses?

2806.26 How does BLM calculate rent for uses within federally owned

facilities?

2806.27 What happens if converting to the rent schedule causes a

$1,000 or more increase in my rent?

2806.28 What are the rent costs for other rights-of-way and uses?

Subpart 2807--What Can I do on the Right-of-Way Once BLM Issues the

Grant?

2807.10 When can I start activities under my grant?

2807.11 When must I contact BLM?

2807.12 For what am I liable?

2807.13 What liabilities do state and local governments have?

2807.14 What happens if BLM transfers management of the land on

which my grant is located to another federal agency or outside of

public ownership?

2807.15 Can BLM temporarily suspend my activities to protect public

health and safety or the environment without providing an

administrative hearing?

2807.16 Can BLM terminate or suspend my grant?

2807.17 How will I know that BLM intends to suspend or terminate my

grant?

2807.18 What happens to any improvements on my grant when it

terminates?

2807.19 When must I amend my application or grant?

2807.20 May I assign my grant?

2807.21 What will BLM charge to review a request for assignment?

2807.22 Can I renew my grant?

Subpart 2808-- What Do I Need To Know About Trespass?

2808.10 What is trespass?

2808.11 What will BLM do if it determines that I am in trespass?

2808.12 May my trespass use be authorized?

Subpart 2809--Are There any Special Requirements Relating to Grants

Issued to Federal Agencies?

2809.10 Can federal agencies get a right-of-way grant?

2809.11 What will the grant contain?

2809.12 Can BLM suspend or terminate the grant?

Authority: 43 U.S.C. 1733, 1734(b), 1740 and 1761--1762.

Subpart 2801--What General Information Do I Need To Know About the

Right-of-Way Program?

Sec. 2801.5 What definitions do I need to know to understand these

regulations?

As used in this part, the term:

(a) Act means the Federal Land Policy and Management Act of 1976,

43 U.S.C. 1701 et seq.

(b) Casual use means activities and practices which do not

ordinarily cause any appreciable disturbance or damage to the public

lands, resources, or improvements, and which do not require a right-of-

way grant under this title. Example: activities which do not involve

the use of explosives or heavy equipment or vehicle movement, except

over already established roads and trails.

(c) Designated right-of-way corridor means a linear or areal parcel

of land identified by law, Secretarial order, the land-use planning

process or other management decision, as being a preferred location for

existing and future rights-of-way and suitable to accommodate more than

one right-of-way.

(d) Discharge has the meaning found at 33 U.S.C. 1321(a)(2) of the

Clean Water Act.

(e) Facility means an improvement constructed or to be constructed

or used or to be used within a right-of-way grant. For purposes of

communication site rights-of-way or uses, facility means the building,

tower and/or other related incidental improvements authorized under

terms of the right-of-way grant or lease.

(f) Field examination generally means a one-day trip, in one

vehicle, from the office to the site of the right-of-way proposal,

regardless of the number of specialists traveling in the vehicle. When

operational efficiency dictates separate trips, BLM will include the

efficient use of hourly time required to verify or collect the data

needed to process the application, or monitor the grant.

(g) Grant means any authorization or instrument (easement, lease,

license, or permit) issued by BLM pursuant to Title V of the Federal

Land Policy and Management Act, 43 U.S.C. 1761 et seq., or the Mineral

Leasing Act, 30 U.S.C. 185.

(h) Hazardous material means:

(1) Any substance or material defined as hazardous under the

Comprehensive Environmental Response, Compensation, and Liability Act

at 42 U.S.C. 9601(14);

(2) Any regulated substance contained in or released from

underground storage tanks, as defined by the Resource Conservation and

Recovery Act at 42 U.S.C. 6991 et seq.;

(3) Oil, as defined by the Clean Water Act at 33 U.S.C. 1321(a) and

the Oil Pollution Act at 33 U.S.C. 2701 et seq.; or

(4) other substances defined and regulated as ``hazardous'' by

applicable federal, state, or local law.

(i) Holder means any entity with a right-of-way authorization from

BLM.

(j) Project means the transportation or other system which the

right-of-way authorizes.

(k) Public lands means any land or interest in land owned by the

United States within the several states and administered by the

Secretary of the Interior through BLM without regard to how the United

States acquired ownership, except:

(1) Those lands located on the Outer Continental Shelf, and

(2) Lands held in trust for the benefit of Indians, Aleuts and

Eskimos.

(l) Release has the meaning found at 42 U.S.C. 9601(22) of the

Comprehensive Environmental Response, Compensation, and Liability Act.

(m) Right-of-way means the public lands authorized to be used or

occupied by a right-of-way grant.

(n) Temporary use means a short-term right-of-way grant that

authorizes a revocable, nonpossessory privilege to use specified public

lands in connection with constructing, operating, maintaining or

terminating an associated right-of-way project.

(o) Transportation and utility corridor means a parcel of land,

without fixed

[[Page 32126]]

limits or boundaries, that is used as the location for one or more

transportation or utility rights-of-way.

(p) Unnecessary and undue degradation means surface disturbance

that is greater than that which would occur when the same or a similar

activity is being done by a prudent person in a usual, customary, and

proficient manner that considers the effects of the activity on other

resources and land uses outside the area of the activity. This

disturbance may be either willful or nonwillful.

Sec. 2801.7 What is the scope of these regulations?

The regulations in this part apply to:

(a) Issuing, administering, amending, assigning, renewing, and

terminating right-of-way grants for necessary transportation or other

systems and facilities which require the use of public lands identified

in 43 U.S.C. 1761, and which are in the public interest;

(b) Federal agency applications for transporting oil, natural gas,

synthetic liquids, or gaseous fuels, and any refined products produced

from them; and

(c) Rights-of-way issued on or before October 21, 1976, under then

existing statutory authority, to the extent that these regulations do

not diminish or reduce any rights conferred by the grant or the statute

under which they were issued. Where there is a reduction, the grant or

enabling statute will apply instead of these regulations.

Sec. 2801.8 Are any rights-of-way outside the scope of these

regulations?

Yes. The regulations in this part do not apply to right-of-way

grants for:

(a) Federal Aid highways, for which Federal Highway Administration

procedures apply;

(b) Reciprocal and cost share road use agreements, for which

subpart 2812 of this chapter applies;

(c) Lands within wilderness areas, although some uses may be

authorized under parts 2920 and 8560 of this chapter; and

(d) Oil, natural gas, synthetic liquid or gaseous fuels, or any

refined product produced from these materials, unless applied for by

Federal agencies, for which part 2880 of this chapter applies.

Sec. 2801.9 Does BLM have the authority to ask me for the information

required in these regulations?

(a) Yes. The Office of Management and Budget has approved the

information collection requirements contained in Part 2800 under 44

U.S.C. 3507 and has assigned them clearance numbers of 1004-0060 (for

Form SF-299) and 1004-______ for the remainder of the requirements. BLM

uses this information to determine if using the public lands for right-

of-way grants is appropriate. You must respond to obtain a benefit.

(b) BLM estimates that the public reporting burden for this

information is as follows: 2 hours per response to fill out Form SF-

299; 16 hours per response to prepare Plans of Development; 30 hours

per response to negotiate master agreements; one-half hour per response

to prepare a project map; one-half hour per response to supply BLM with

copies of approved certificates and permits from other agencies and

location maps from state and local governments; 2.5 hours per response

to apply for cost reductions; and one hour per response to supply

information about tenants at multiple use communication sites. These

estimates include the time for reviewing instruction, searching

existing data sources, gathering and maintaining the data needed and

completing the collection of information.

(c) Send comments regarding this burden estimate or any other

aspect of this collection to the Information Collection Clearance

Officer, Bureau of Land Management, 1849 C St., N.W., Mail Stop 401 LS,

Washington, D. C. 20240.

Sec. 2801.10 Severability.

If any provisions of the rules in this part or their applicability

to any person or circumstances are held invalid, the remainder of these

rules and their applicability to other people or circumstances shall

not be affected.

Subpart 2802--What Lands Are Available for FLPMA Rights-of-Way?

Sec. 2802.10 What lands are available for FLPMA rights-of-way?

(a) BLM may grant new rights-of-way on lands under its

jurisdiction, except where they are specifically excluded or restricted

by statute, regulation, p

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