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

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DEPARTMENT OF THE INTERIOR Bureau of Land Management 43 CFR Parts 2800, 2860, 2880, and 2920 [LLHQ350000.L51020000.ER0000, 22X] RIN 1004-AE60 Update of the Communications Uses Program, Cost Recovery Fee Schedules, and Section 512 of FLPMA for Rights-of-Way AGENCY:

Bureau of Land Management, Interior.

ACTION:

Proposed rule.

SUMMARY:

The Bureau of Land Management (BLM) proposes to amend its existing regulations to enhance the communications uses program, update its cost recovery fee schedules, and add provisions governing the development and approval of operations, maintenance, and fire prevention plans and agreements for rights-of-way (ROWs) for electric transmission and distribution facilities (powerlines). Communication uses and powerlines are two of many ROW activities authorized under the Federal Land Policy and Management Act of 1976, as amended (FLPMA). Cost recovery fees apply to most ROW activities authorized under either Title V of FLPMA or the Mineral Leasing Act of 1920, as amended (MLA), as well as to land use authorizations under Title III of FLPMA.

DATES:

Please submit comments on or before January 6, 2023. The BLM is not obligated to consider any comments received after this date in making its decision on the final rule.

Information Collection Requirements: This document includes proposed new information collection requirements that must be approved by the Office of Management and Budget (OMB). If you wish to comment on the new information collection requirements in this document, please note that such comments should be sent directly to the OMB, and that the OMB is required to make a decision concerning the collection of information contained in this proposed rule between 30 and 60 days after publication of this document in the Federal Register . Therefore, a comment to the OMB on the proposed information collection revisions is best assured of being given full consideration if the OMB receives it by January 6, 2023

t directly to the OMB, and that the OMB is required to make a decision concerning the collection of information contained in this proposed rule between 30 and 60 days after publication of this document in the Federal Register . Therefore, a comment to the OMB on the proposed information collection revisions is best assured of being given full consideration if the OMB receives it by January 6, 2023.

ADDRESSES:

Mail, personal, or messenger delivery: U.S. Department of the Interior, Director (HQ-630), Bureau of Land Management, Room 5646, 1849 C St. NW, Washington, DC 20240, Attention: Regulatory Affairs: 1004-AE60.

Federal eRulemaking Portal: https://www.regulations.gov . In the Searchbox, enter “RIN 1004-AE60” and click the “Search” button. Follow the instructions at this website.

Information Collection Activities

Information Collection Requirements: Written comments and suggestions on the information collection requirements should be submitted by the date specified above in the DATES section to www.reginfo.gov/public/do/PRAMain . Find this particular information collection by selecting “Currently under Review—Open for Public Comments” or by using the search function. If you submit comments on the information collection burdens, you should provide the BLM with a copy at one of the addresses shown earlier in this section, so that we can summarize all written comments and address them in the final rulemaking. Please indicate “Attention: OMB Control Number 1004-NEW (RIN 1004-AE60).” Comments not pertaining to the proposed rule's information collection burdens should not be submitted to OMB. The BLM is not obligated to consider or include in the Administrative Record for the final rule any comments that are improperly directed to OMB.

FOR FURTHER INFORMATION CONTACT:

Erica Pionke via email at epionke@blm.gov or via phone at (202) 570-2624; or Jennifer Noe via email at jnoe@blm.gov for information relating to the general rulemaking process

on burdens should not be submitted to OMB. The BLM is not obligated to consider or include in the Administrative Record for the final rule any comments that are improperly directed to OMB.

FOR FURTHER INFORMATION CONTACT:

Erica Pionke via email at epionke@blm.gov or via phone at (202) 570-2624; or Jennifer Noe via email at jnoe@blm.gov for information relating to the general rulemaking process. Individuals in the United States who are deaf, blind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures II. Background A. Introduction B. Need for the Proposed Rule C. Statutory Authority III. Discussion of the Proposed Rule IV. Procedural Matters I. Public Comment Procedures

If you wish to comment on this proposed rule, you may submit your comments to the BLM, marked with the number RIN 1004-AE60, by mail, personal or messenger delivery, or through https://www.regulations.gov (see the ADDRESSES section). Please note that comments on this proposed rule's information collection burdens should be submitted to the OMB as described in the ADDRESSES section.

Please make your comments on the proposed rule as specific as possible, confine them to issues pertinent to the proposed rule, and explain the reason for any changes you recommend. Where possible, your comments should reference the specific section or paragraph of the proposal that you are addressing. The comments and recommendations that will be most useful and likely to influence agency decisions are:

1. Those supported by quantitative information or studies; and

2. Those that include citations to, and analyses of, the applicable laws and regulations

ges you recommend. Where possible, your comments should reference the specific section or paragraph of the proposal that you are addressing. The comments and recommendations that will be most useful and likely to influence agency decisions are:

1. Those supported by quantitative information or studies; and

2. Those that include citations to, and analyses of, the applicable laws and regulations.

The BLM is not obligated to consider or include in the Administrative Record for the final rule comments that we receive after the close of the comment period (see DATES ) or comments delivered to an address other than those listed above (see ADDRESSES ).

Comments, including names and street addresses of respondents, will be available for public review at the address listed under “ ADDRESSES : Mail, personal, or messenger delivery” during regular business hours (7:45 a.m. to 4:15 p.m. EST), Monday through Friday, except holidays. Before including your address, telephone number, email address, or other personal identifying information in your comment, be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.

II. Background

A. Introduction

The subject matter of this proposed rule pertains principally to the BLM's ROW program under 43 CFR parts 2800 and 2880, land use authorizations under part 2920, and newly proposed part 2860. Although the discussion in this preamble focuses on ROWs, and most revisions in the proposed rule relate to ROWs issued under parts 2800 and 2880, and proposed part 2860, similar revisions are being proposed that would apply to authorizations under part 2920

principally to the BLM's ROW program under 43 CFR parts 2800 and 2880, land use authorizations under part 2920, and newly proposed part 2860. Although the discussion in this preamble focuses on ROWs, and most revisions in the proposed rule relate to ROWs issued under parts 2800 and 2880, and proposed part 2860, similar revisions are being proposed that would apply to authorizations under part 2920.

In order for the reader to better understand the following discussion, as defined in 43 CFR 2801.5, a “grant” means any authorization or instrument ( e.g., easement, lease, license, or permit) BLM issues under Title V of FLPMA. A

In this rule, there are three distinct topics being considered. The first topic is communications uses. The second topic, cost recovery for the ROW program, addresses the reimbursement of costs, as authorized by FLPMA (43 U.S.C. 1701 et seq. ) or the MLA (30 U.S.C. 185 et seq. ), for the Federal Government's expenses in undertaking ROW work. The third topic pertains to a recent amendment to add a new Section 512 to Title V of FLPMA (43 U.S.C. 1772) and addresses the risk of fires from powerline ROWs on public lands. Each of these topics is discussed in this preamble; however, proposed changes in regulations pertaining to these topics are discussed in the section-by-section discussion in the order in which they are or would be found in the regulatory text. The proposed revisions should be considered separately. If a court holds any provision of one part of this proposed rule invalid, it should not affect the other parts of the proposed rule. Additionally, this proposed rule adds a severability clause to part 2860 for consistency with similar existing provisions in parts 2800 and 2880

order in which they are or would be found in the regulatory text. The proposed revisions should be considered separately. If a court holds any provision of one part of this proposed rule invalid, it should not affect the other parts of the proposed rule. Additionally, this proposed rule adds a severability clause to part 2860 for consistency with similar existing provisions in parts 2800 and 2880. The BLM is especially interested in receiving public comments and information discussing the BLM's proposed updates to its cost recovery fee categories for Federal ROW work activities, and whether the proposed regulations implementing the amendment to Title V of FLPMA effectively capture the statutory requirements.

Communications Uses

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

Although there have been great strides in expanding broadband services in the United States over the past several years, rural and Tribal areas lag behind in broadband deployment. Successive Presidential administrations and Congress have made it a priority to increase broadband deployment in underserved areas. As the land management agency with the responsibility to manage the largest inventory of public land within the Federal Government, the BLM proposes to amend regulatory provisions for the processing and monitoring of various ROWs, including those for communications uses. Currently, there are approximately 1,500 communications sites on BLM lands

o increase broadband deployment in underserved areas. As the land management agency with the responsibility to manage the largest inventory of public land within the Federal Government, the BLM proposes to amend regulatory provisions for the processing and monitoring of various ROWs, including those for communications uses. Currently, there are approximately 1,500 communications sites on BLM lands. By making it easier for industry to collocate in and on existing communications facilities or build out new communications infrastructure on public lands, the BLM can play a strong role in increasing connectivity throughout the United States. Communications uses, including fiber optic and telephone, may be collocated within the 6,000 miles of energy corridors administered by the BLM and the U.S. Forest Service (USFS).

While communications companies, cooperatives, and other private entities ultimately make decisions on locations to construct and/or upgrade broadband infrastructure, from communications towers to linear ROWs for fixed terrestrial broadband access, the Department of the Interior (Department) administers a significant amount of land as well as existing permitted infrastructure that can be leveraged for increased connectivity in rural America.

This proposed rule would revise the existing regulations pertaining to communications uses by streamlining processes and establishing new customer service standards. The rule also proposes several technical changes to clarify the communications regulations.

Cost Recovery

dards. The rule also proposes several technical changes to clarify the communications regulations.

Cost Recovery

Both the FLPMA and MLA authorize the Federal Government to collect fees, called cost recovery, for the costs that it expends in processing a ROW application, taking administrative actions, or monitoring the construction, operation, and termination of a facility authorized by a grant. In 2005, the BLM finalized regulations that established a cost recovery processing and monitoring fee schedule for ROW applications and grants and an annual process whereby the BLM updates the schedule to account for changes in the Implicit Price Deflator Gross Domestic Product (IPD-GDP). The IPD-GDP measures annual changes in the prices of goods and services produced in the United States. Despite those annual adjustments, the fee amounts in the current cost recovery schedule do not presently reflect the costs associated with the work. These costs include both direct and indirect costs, exclusive of management overhead costs. The indirect administrative cost rate is determined at the beginning of each Fiscal Year (FY) and incorporates administrative support. Annual cost recovery adjustments are made to take effect at the beginning of each calendar year. BLM managers and employees, when engaged in either project or program activities where the indirect administrative cost rate assessment is applicable, must include the indirect costs when calculating the cost of providing services to another Federal agency, or ROW or grant applicant.

services to another Federal agency, or ROW or grant applicant.

This proposed rule would increase the cost recovery fees to better reflect the current costs of processing and monitoring minor category ROWs. Additionally, minor category ROWs are those that take less than 50 hours under the current rule and would take less than 64 hours under the proposed rule for a BLM realty specialist to process. This would allow more applications to qualify as a minor category, eliminating the labor to establish, monitor, and maintain appropriate accounting of major category cost recovery accounts on those applications. The BLM believes this proposed change would increase operational efficiency. Lastly, this rule proposes several technical changes to 43 CFR parts 2800 and 2880, that would clarify and expedite other ROW tasks.

Section 512 of FLPMA

In March of 2018, Congress amended FLPMA to add Section 512 (43 U.S.C. 1772), which establishes requirements for the BLM and the USFS to develop and implement final regulations to govern review and approval of operations, maintenance, and fire prevention plans and agreements for vegetation and facility management on public lands within powerline ROWs and on abutting Federal lands. The proposed rule would revise regulations governing the issuance, renewal, and amendment of grants for powerlines. The BLM administers nearly 17,000 existing ROWs for powerlines on public lands. The USFS published a proposed rule on September 25, 2019 (84 FR 50698), a final rule on July 10, 2020 (85 FR 41387), an amendment to the final rule on August 11, 2020 (85 FR 48475), and draft policy on December 10, 2020 (85 FR 79463) to implement Section 512 of FLPMA on land managed by USFS.

The BLM's proposed rule would add a definition for hazard tree consistent with the definition in Section 512, and make other changes intended to implement Section 512, including its provisions related to emergency

87), an amendment to the final rule on August 11, 2020 (85 FR 48475), and draft policy on December 10, 2020 (85 FR 79463) to implement Section 512 of FLPMA on land managed by USFS.

B. Need for the Proposed Rule

Communications Uses

It is an Administration priority to bring affordable, reliable, high-speed broadband to every American, including the more than 35 percent of rural Americans who lack access to broadband at minimally acceptable speeds.

On January 8, 2018, Executive Order (E.O.) 13821 was issued to promote better access to broadband internet service in rural America. E.O. 13821 states that “Americans need access to reliable, affordable broadband internet service to succeed in today's information-driven, global economy” and establishes a policy “to use all viable tools to accelerate the deployment and adoption of affordable, reliable, modern high-speed broadband connectivity in rural America, including rural homes, farms, small businesses, manufacturing and production sites, Tribal communities, transportation systems, and healthcare and education facilities.”

On January 8, 2018, in association with the release of E.O. 13821, a Presidential Memorandum (Memorandum) was issued to the Secretary of the Interior (Secretary) entitled, “Supporting Broadband Tower Facilities in Rural America on Federal Properties Managed by the Department of the Interior.” This Memorandum states that it is the policy of the executive branch to make Federal assets more available for rural broadband deployment, with due consideration for national security concerns

randum (Memorandum) was issued to the Secretary of the Interior (Secretary) entitled, “Supporting Broadband Tower Facilities in Rural America on Federal Properties Managed by the Department of the Interior.” This Memorandum states that it is the policy of the executive branch to make Federal assets more available for rural broadband deployment, with due consideration for national security concerns. The Memorandum directs the Secretary to “develop a plan to support rural broadband development and adoption by increasing access to tower facilities and other infrastructure assets managed by the Department of the Interior” and “identify assets that can be used to support rural broadband deployment and adoption.”

On March 23, 2018, the Consolidated Appropriations Act, 2018 was signed into law. (Pub. L. 115-141, 132 Stat. 348.) Title VI of Division P of that law, called the “Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless Act” or “MOBILE NOW Act,” amended section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96, 126 Stat. 156 (codified at 47 U.S.C 1455)).

This proposed rule would incorporate the new timing requirements established by the MOBILE NOW Act into the BLM's regulations. As amended by the MOBILE NOW Act, 47 U.S.C. 1455(b)(3)(A) states:

In General—Not later than 270 days after the date on which an executive agency receives a duly filed application for an easement, right-of-way, or lease under this subsection, the executive agency shall—

This proposed rule would incorporate the new timing requirements established by the MOBILE NOW Act into the BLM's regulations. As amended by the MOBILE NOW Act, 47 U.S.C. 1455(b)(3)(A) states:

(i) grant or deny, on behalf of the Federal Government, the application; and

(ii) notify the applicant of the grant or denial.

This proposed rule would provide for the electronic filing of ROW applications, along with other document submissions. E.O. 13821 states, “Federal property managing agencies shall use the GSA [General Services Administration] common form application for wireless service antenna structure siting developed by the [GSA] Administrator for requests to locate broadband facilities on Federal property.”

The MOBILE NOW Act also requires the use of a common form for all applications to install, construct, modify, or maintain communications facilities (including broadband infrastructure) on federally owned lands. The BLM provides Standard Form (SF)-299 for applicants seeking authorization for such purposes on public lands. The GSA, through collaboration with other agencies, decided the SF-299 would be the common form for Federal authorization of communications uses. The proposed rule would require use of the SF-299 for all communications uses grants, thereby making the proposed rule consistent with the MOBILE NOW Act.

By updating regulations, the BLM could improve response times and address the current lack of certainty in the communications uses grant process, which impacts industry construction schedules and may increase construction costs

nications uses. The proposed rule would require use of the SF-299 for all communications uses grants, thereby making the proposed rule consistent with the MOBILE NOW Act.

Cost Recovery

The current ROW regulations, found in 43 CFR parts 2800 and 2880, became effective June 21, 2005, and require the BLM to reevaluate its cost recovery fees for each cost recovery category, and the categories themselves, within 5 years after their effective date and at 10-year intervals thereafter (43 CFR 2804.15 and 2884.15). The BLM completed its initial cost recovery reevaluation in December 2010 and has continued to evaluate data received through the end of FY 2020. These data show that the existing cost recovery fee collections do not adequately cover the costs incurred by the BLM for processing and monitoring ROW applications and grants under both the FLPMA and the MLA. These proposed regulations would revise the existing cost recovery fee categories to better reflect updates in technology, the procedures for processing applications and monitoring grants, and statutes and regulations relating to the ROW program.

The BLM reviewed current labor and other costs and the time required to perform work on minor category (currently Categories 1-4) ROW applications and grants. For applications or grants that would take the BLM more than 64 hours to process, the BLM would continue to collect cost recovery under Categories 5 or 6 under this rule. In addition, this rule proposes several technical changes to the previously cited regulations that would clarify and expedite completion of other ROW-related tasks

category (currently Categories 1-4) ROW applications and grants. For applications or grants that would take the BLM more than 64 hours to process, the BLM would continue to collect cost recovery under Categories 5 or 6 under this rule. In addition, this rule proposes several technical changes to the previously cited regulations that would clarify and expedite completion of other ROW-related tasks.

This proposed rule, which would update cost recovery processes, addresses FLPMA grants for ROWs, MLA grants and temporary use permits (TUPs), and leases, permits, and easements that cross public lands. General provisions for ROW grants are found in 43 CFR subparts 2801 and 2881.

Most of the steps involved in performing necessary work pertaining to ROW authorizations, terminations, assignments, etc., are the same for both FLPMA and MLA ROWs. Typically, unless exempt, an applicant must reimburse the BLM for its reasonable costs incurred in processing and monitoring a FLPMA ROW activity, including conducting an environmental review as required by the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq. ). Unlike FLPMA, under the MLA, an applicant must reimburse the United States for its actual costs in completing ROW activities. The Federal Government collects cost recovery before the BLM begins tasks related to a ROW application or other ROW-related activity.

The existing ROW cost recovery fee structure is also applicable to leases, permits, and easements issued under Section 302(b) of FLPMA (43 U.S.C.

Section 512 of FLPMA

On March 23, 2018, Congress amended the FLPMA by adding Section 512, entitled “Vegetation Manag[e]ment, Facility Inspection, and Operation and Maintenance Relating to Electrical Transmission and Distribution Facility Rights of Way” (43 U.S.C. 1772). The proposed rule would add definitions for hazard tree and operations, maintenance, and fire prevention plan, as well as make other revisions pertaining to ROW administration to address fire risks on public lands

512, entitled “Vegetation Manag[e]ment, Facility Inspection, and Operation and Maintenance Relating to Electrical Transmission and Distribution Facility Rights of Way” (43 U.S.C. 1772). The proposed rule would add definitions for hazard tree and operations, maintenance, and fire prevention plan, as well as make other revisions pertaining to ROW administration to address fire risks on public lands. This proposed rule would define operations, maintenance, and fire prevention plan as a plan that provides for long-term, cost-effective, efficient, and timely inspection, operation, maintenance, and vegetation management of a ROW and on abutting Federal lands, including management of hazard trees, to enhance electric reliability, promote public safety, and avoid fire hazards.

The BLM's mission is to sustain the health, diversity, and productivity of the public lands for the use and enjoyment of present and future generations. The BLM administers approximately 245 million surface acres. According to the National Interagency Fire Center (NIFC), approximately 109 million acres across the United States (including both Federal and non-Federal lands) burned in wildfires between 2006 and 2020. Wildfire is a known risk to and from powerlines and may be caused by a variety of factors, including vegetation coming into contact with live powerlines or structural failures of powerline infrastructure.

Right-of-Way Renewals

Each year, about 500 oil and gas pipeline ROWs and 400 power transmission and distribution ROWs expire. Due to resources challenges, over the years the BLM has not kept pace renewing these authorizations. The updated provisions in the proposed rule would help expedite processing of expired and expiring ROWs.

C. Statutory Authority

Section 310 of FLPMA (43 U.S.C. 1740) authorizes the Secretary to promulgate regulations to implement the statute with respect to public lands

istribution ROWs expire. Due to resources challenges, over the years the BLM has not kept pace renewing these authorizations. The updated provisions in the proposed rule would help expedite processing of expired and expiring ROWs.

C. Statutory Authority

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

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

The Consolidated Appropriations Act, 2018 amended FLPMA by adding a new Section 512 (43 U.S.C. 1772) and directed the Secretary to promulgate regulations to implement this new section.

III. Discussion of the Proposed Rule

43 CFR Part 2800 Rights-of-Way Authorized Under FLPMA

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

Subpart 2801—General Information

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

The proposed rule would add the words “wherever practical” to the objective described in § 2801.2(c)

ategories. The communications uses provisions found in this part would either be moved to new part 2860 or removed. Other minor modifications would correct or clarify existing regulations.

Subpart 2801—General Information

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

The proposed rule would add the words “wherever practical” to the objective described in § 2801.2(c). This proposed revision would more closely align the objective of promoting ROWs in common with the requirement described in Section 503 (43 U.S.C. 1763) of the FLPMA:

In order to minimize adverse environmental impacts and the proliferation of separate rights-of-way, the utilization of rights-of-way in common shall be required to the extent practical.

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

In section 2801.5, the proposed rule would move several terms associated with communications uses to the definitions section for a new part 2860, which specifically addresses communications uses.

The proposed rule would add the term and a definition of “complete application” to clarify that an application is only complete when it contains all necessary information found under § 2804.12 and when the BLM notifies the applicant that it is complete. This is an important clarification, because the BLM's customer service standards for processing applications apply only when an application is complete. This is consistent with existing BLM practice, but the proposed rule would clarify this requirement.

The proposed rule would add the term and a definition of “cost recovery” to clarify that it is a fee for the processing and monitoring associated with any proposed or authorized ROW.

The proposed rule would add the term and a definition of “exempt from rent” to clarify when an authorization would be automatically exempt from rental. This definition is consistent with existing § 2806.14 and proposed § 2866.14

rule would add the term and a definition of “cost recovery” to clarify that it is a fee for the processing and monitoring associated with any proposed or authorized ROW.

The proposed rule would revise the definition of the term “facility” by removing the last sentence. This part of the definition applies only to communications uses and would be moved into new § 2861.5, which is the definitions section for the new part 2860 that would be added by this proposed rule to consolidate provisions that address communications uses ROWs.

The proposed rule would add the statutory term “hazard tree,” and would define that term consistent with the definition in Section 512(a)(1) of FLPMA. The definition would apply in the limited context of powerline ROWs subject to newly proposed § 2805.22 and would help holders of such ROWs to understand what is required of them and what authorization their ROW provides. (See proposed § 2805.22(b)(3).)

The proposed rule would revise the term “monitoring” to be “monitoring activities” and would revise the definition of that term. Monitoring activities would mean those activities the Federal Government performs to ensure compliance with a ROW grant.

The proposed rule would also revise the explanation of the monitoring categories for consistency with the proposed revisions to § 2804.14(a).

The proposed rule would add the term and a definition of “operations and maintenance,” which would include activities conducted by a ROW holder to manage facilities and vegetation within and adjacent to the ROW boundary

nsure compliance with a ROW grant.

The proposed rule would also revise the explanation of the monitoring categories for consistency with the proposed revisions to § 2804.14(a).

The proposed rule would add the term and a definition of “operations, maintenance, and fire prevention plan,” which would be a plan submitted to the BLM by the holder of a ROW that

The proposed rule would add the term and a definition of “processing activities.” Processing activities would be defined as work that the Federal Government undertakes to evaluate an application for a ROW grant. The principal outcome of ROW processing is a determination of whether to approve the application by issuance of a grant and identification of appropriate terms and conditions for each grant. The proposed definition also includes preparation of an environmental document, compliance with other legal requirements, and ROW administrative actions, such as assignments, amendments, and renewals, as different processing activities. This would not be a change from existing BLM practice but would clarify to the public that the BLM collects cost recovery for these ROW-related activities. This proposed definition would explain what activities would generally be associated with applications found under each cost recovery category.

The proposed rule would revise the definition of “substantial deviation” to clarify that general operation and maintenance activities, including safety-related activities, are not considered a substantial deviation. Additionally, the definition would clarify that activities to prevent or suppress wildfires on lands within or adjacent to the ROW are not considered a substantial deviation

ategory.

The proposed rule would revise the definition of “transportation and utility corridor” to clarify the process for establishing transportation and utility corridors. Furthermore, the amended definition would clarify the need for compatible uses.

The proposed rule would add the term and a definition of “waived from rent” to clarify the differences between being “waived from rent” and “exempt from rent.” While a holder may be exempted from rent by statute or regulation, the BLM may also waive a part or all of a holder's rent (see §§ 2806.15 and 2866.15).

The proposed rule would revise the definition of “zone” by removing the number “eight” from the description of the number of zones. The current linear rent schedule for ROWs has 15 zones, so the current definition is not accurate. Removing the number of zones would not affect the definition.

Section 2801.9 When do I need a grant?

The proposed rule would remove paragraph (a)(5) of this section and redesignate paragraphs (a)(6) and (7) as (a)(5) and (6). The paragraph to be removed requires the public to obtain a grant for systems for transmitting or receiving electronic signals and other means of communication. This is a communications uses-specific requirement that would be removed from part 2800. The uses described in the removed paragraph (a)(5) would be covered under proposed § 2861.9, which would describe the circumstances under which a holder must obtain a communications uses grant

ublic to obtain a grant for systems for transmitting or receiving electronic signals and other means of communication. This is a communications uses-specific requirement that would be removed from part 2800. The uses described in the removed paragraph (a)(5) would be covered under proposed § 2861.9, which would describe the circumstances under which a holder must obtain a communications uses grant.

Subpart 2802—Lands Available for FLPMA Grants

Section 2802.10 What lands are available for grants?

The proposed rule would revise paragraph (c) of this section by removing the specific requirement to notify the BLM office nearest the lands you seek to use. The proposed rule instructs you to contact the BLM to determine the appropriate office with which you should coordinate. The appropriate office is the BLM office with jurisdiction over the lands you seek to use, which may not be the same as the BLM office nearest the lands you seek to use.

Subpart 2803—Qualifications for Holding FLPMA Grants

Section 2803.11 Can another person act on my behalf?

Proposed § 2803.11 would add new provisions that describe the process for the holder to notify the BLM when another person or entity is authorized to act on the holder's behalf. This proposed revision would standardize what documents the BLM would require prior to allowing another person or entity to act on behalf of the holder. The BLM expects this change to streamline and expedite processing times for grant holders.

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

Proposed paragraph (a)(1) would explain which BLM office must be notified. The office with jurisdiction over a grant retains the official case file and therefore needs the official documentation

ating another individual or entity to act on their behalf. These requirements are necessary for the BLM to understand the legal relationship between the holder and the third party acting on their behalf.

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

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

Proposed paragraph (b) would inform the ROW holder how the BLM would administer the grant. The BLM would like to simplify the formal communication process by establishing expectations of responsibility for any actions taken by an authorized agent. As a result of this proposed change, the BLM anticipates a reduction in processing times for requests related to a ROW application.

Section 2803.12 What happens to my grant if I die?

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

n in processing times for requests related to a ROW application.

Section 2803.12 What happens to my grant if I die?

Subpart 2804—Applying for FLPMA Grants

Section 2804.12 What must I do when submitting my application?

In § 2804.12, the BLM proposes to change § 2804.12(a) by adding a sentence following the first sentence to read: “The application must include the applicant's original signature or meet the BLM standards for electronic commerce.” This addition would clarify that when an application for a ROW is filed electronically, a manual signature may not be required.

Proposed revisions to § 2804.12(a)(4) would require an applicant to submit the project map and Geographic Information Systems (GIS) shapefiles for the project, as requested by the BLM. When a BLM office is conducting an analysis under NEPA, it is not uncommon for the various resource specialists to request that the applicant provide project data electronically in a GIS format to ensure that the correct

Section 2804.14 What are the fee categories for cost recovery?

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

isting title of § 2804.14 refers only to processing fees for grant applications. The BLM proposes to amend § 2804.14(a) to clarify that cost recovery fees include both processing and monitoring activities. The BLM proposes to amend § 2804.14(a) to maintain consistency with the proposed changes in § 2804.16 that would provide for waiver of, rather than exemption from, processing and monitoring fees.

The United States, under the FLPMA, generally collects cost recovery fees from ROW holders and applicants for the reasonable costs of Federal work related to a ROW. Existing regulations contain a table of categories for “processing fees” under § 2804.14(b) and a table of “monitoring fees” under § 2805.16(a). The monitoring cost recovery fee schedule, currently found under § 2805.16(a), would be combined with the category description table located at existing § 2804.14(b) in a new table in proposed § 2804.14(b). This revised table would apply to all cost recovery fees.

The BLM determines which category a project falls into based on its estimate of the total Federal work hours associated with the project. If the project falls into a minor category, then the applicant is assessed the fee that corresponds to the appropriate category within the cost recovery schedule.

Following the methodology of the 2005 rule, the BLM proposes to update the fee schedule for minor cost recovery categories by multiplying a calculated average wage which includes both direct and indirect costs by the midpoint of the hours in each minor category. We describe that process in detail below.

Proposed § 2804.14(b) would remove the first sentence in § 2804.14(b), which states, “There is no processing fee if the BLM's work is estimated to take one hour or less.” This change would address the fact that the time spent on ROW work activities generally is not less than 1 hour. Even simple actions, such as ROW assignments and name changes, take more than 1 hour to complete, except in very rare circumstances

.14(b) would remove the first sentence in § 2804.14(b), which states, “There is no processing fee if the BLM's work is estimated to take one hour or less.” This change would address the fact that the time spent on ROW work activities generally is not less than 1 hour. Even simple actions, such as ROW assignments and name changes, take more than 1 hour to complete, except in very rare circumstances. The BLM would be interested in hearing from the public if this would create a burden on the industry for any particular actions that are frequently performed in under 1 hour.

The BLM conducted a review of ROW cases between FY 2012 and FY 2018, and found that the existing cost recovery schedule, which provides that projects with up to 50 estimated work hours may be considered for the “minor” cost recovery categories (Categories 1, 2, 3, or 4), should be expanded. The BLM is concerned that, due to the 50-work-hour limit, more projects are being assigned to Category 6, when it would be more efficient operationally to increase the “minor” cost recovery limit to 64 hours, or an even 8 workdays. This would allow more applications to qualify as a minor category, eliminating the labor to establish, monitor, and maintain appropriate accounting of major category cost recovery accounts on those applications. The BLM proposes a new schedule that would adjust the hours thresholds for Categories 1, 2, 3, and 4 to account for the expected type of workload and to set the minor category work hour cap at 64 hours.

Proposed Category 1 would apply to activities with an estimated workload of 8 Federal work hours or less. Proposed Category 2 would apply to activities with an estimated workload of 8 to 24 Federal work hours. Proposed Category 3 would apply to activities with an estimated workload of 24 to 40 Federal work hours. Proposed Category 4 would apply to activities with an estimated workload of 40 to 64 Federal work hours

1 would apply to activities with an estimated workload of 8 Federal work hours or less. Proposed Category 2 would apply to activities with an estimated workload of 8 to 24 Federal work hours. Proposed Category 3 would apply to activities with an estimated workload of 24 to 40 Federal work hours. Proposed Category 4 would apply to activities with an estimated workload of 40 to 64 Federal work hours. By expanding the range of hours in the minor categories, it is anticipated that the BLM would have fewer major Category determinations, thereby giving the applicants with moderate projects some relief from the cost recovery fees and additional workload associated with such a determination. This proposed rule change would allow more applications to qualify as a minor category, eliminating the labor to establish major category cost recovery accounts on those applications.

The proposed rule would adjust the cost recovery fees for each of the minor categories to reflect the current reasonable cost of the associated hours. The process that the BLM uses currently to adjust the fees is detailed in Section 5 of the Economic and Threshold Analysis (or “economic analysis”) that accompanies the proposed rule.

First, the BLM calculated an average wage (including pay additives and indirect costs) for processing and monitoring activities taking place from FY 2018 to FY 2020. The calculated average hourly wage over this three-year period was $67.74.

The BLM then multiplied that average wage by the midpoint of the work hours in each of the proposed categories to determine the fee amounts for each category. During previous rulemakings on this subject, we received comments that most users felt more comfortable if a midpoint were used, as opposed to another statistical method or evaluation of the data. With this proposed rule, the BLM would maintain the use of midpoints for calculating the fees for the minor categories

s in each of the proposed categories to determine the fee amounts for each category. During previous rulemakings on this subject, we received comments that most users felt more comfortable if a midpoint were used, as opposed to another statistical method or evaluation of the data. With this proposed rule, the BLM would maintain the use of midpoints for calculating the fees for the minor categories.

The result of this formulation is proposed fees of $271, $1,084, $2,168, and $3,522 for minor Categories 1, 2, 3, and 4 in the first FY of adoption, respectively. These fees would be applied in the base year and adjusted annually for changes in the IPD-GDP, per current practice. With the proposed increase in cost recovery fees, the BLM believes that it would be closer to recovering the reasonable costs for activities in Categories 1 through 4, as FLPMA requires.

The proposed rule would clarify that, for Master Agreements under Category 5, preliminary application review fees may be included in the Master Agreement. See the discussion of § 2804.18 in this preamble for further discussion of proposed changes to Master Agreements.

Under the proposed rule, Category 6 would cover any ROW for which the BLM estimates that Federal work will exceed 64 hours or which would result in the preparation of an Environmental Impact Statement (EIS). The BLM would continue to collect costs for work performed under this category, which would now specifically include preliminary application review. The cost recovery fees under both the existing and proposed category frameworks are shown in Table 1 below.

rameworks are shown in Table 1 below.

Table 1—Existing and Proposed Cost Recovery Schedules Existing cost recovery fee schedule (FY 2022) Category Estimated work hours Fee amount Proposed cost recovery fee schedule Category Estimated work hours Fee amount 1 > 1 ≤ 8 $136 1 8 or less $271. 2 > 8 ≤ 24 $480 2 > 8 ≤ 24 $1,084. 3 > 24 ≤ 36 $904 3 > 24 ≤ 40 $2,168. 4 > 36 ≤ 50 $1,296 4 > 40 ≤ 64 $3,522. 5 Varies depending on agreement Determined by agreement 5 Varies depending on agreement Determined by agreement. 6 > 50 All processing and monitoring costs 6 >64 All processing and monitoring costs. The adjustments in the fee schedule are driven by two factors. First, the BLM has proposed to expand the number of hours covered by Categories 3 and 4. Second, the average labor wage has risen significantly since the 2005 rule was promulgated.

For example, if the BLM determines your application would take 40 hours to process, currently you would be in Category 4 with an FY 2022 fee of $1,296. Under the proposed rule, the same application would be in Category 3 with a fee of $2,168. The $2,168 would represent the midpoint between the range of hours in Category 3 (which is 32 hours), times the average wage calculation. The BLM coordinates with the USFS to provide consistency with respect to ROW cost recovery fees.

The proposed rule would revise § 2804.14(c) to update and re-order the locations where you can obtain a copy of the current cost recovery category fee schedule.

The proposed rule would revise § 2804.14(d) for consistency with other proposed changes and to reflect that these cost recovery categories would apply to all ROW activities including monitoring, not just the processing of applications.

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

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

e cost recovery categories would apply to all ROW activities including monitoring, not just the processing of applications.

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

Section 2804.16 When will the BLM waive cost recovery fees?

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

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

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

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

Proposed paragraph (a)(2) of this section contains the text from existing paragraph (b) of this section, which remains unchanged.

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

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

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

The proposed rule would modify § 2804.17(a) to change the cross-reference from § 2805.16 (currently the table for monitoring fees) to proposed § 2804.14, which would contain the combined cost recovery table for all ROW activities

explicit in the regulations.

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

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

Section 2804.18 describes how Master Agreements function. Proposed § 2804.18(a)(2) would provide that a Master Agreement describes work to be done by the applicant and the BLM to complete a number of ROW permitting and monitoring activities. The revisions to this paragraph would allow Master Agreements to be used for any type of ROW activity, not just ROW processing. Proposed paragraph (a)(5) would make this language more consistent with other updates in the proposed rule. The BLM believes the expanded use of Master Agreements would streamline processing and monitoring activities. Master Agreements are designed to consolidate some of the processing and monitoring steps associated with ROWs,

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

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

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

he title from “How will BLM process my Processing Category 6 application?” to read “How will the BLM manage my Category 6 project?” This section would be revised to explain that cost recovery for Category 6 projects would include monitoring the grant in addition to processing the application. The proposed rule would make editorial changes for clarity and consistency with the other proposed changes.

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

The proposed rule would add a new paragraph (b)(4) and redesignate existing paragraphs (b)(4) and (b)(5) as (b)(5) and (b)(6), respectively. Proposed paragraph (b)(4) of this section would state that the BLM may collect a deposit before beginning work on a Category 6 project. Currently, when an application falls under Category 6, it takes an average of 6 months to finalize the details of the agreement, which includes a work and financial plan. The communications industry has indicated that when they are charged a Category 6 cost recovery fee, the deposit is usually between $11,000 and $15,000. The advanced collection of a deposit would shorten the time for processing an application by allowing the BLM to begin processing the application during the 6 months it usually takes to finalize a cost recovery agreement

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

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

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

The proposed rule would revise the last sentence in the introductory text of this section, which states, “While we consider your written analysis, BLM will not process your Category 6 application.” Under the proposed rule, if the BLM requests additional information, we would continue to work on your application while you are responding to our request, as long as a deposit has been received by the BLM as provided in proposed § 2804.19(b)(4).

Paragraph (a) of this section describes how the BLM would apply the factors articulated in Section 304(b) of FLPMA to assess whether costs are “reasonable” for your project, to determine the actual costs owed to the BLM. The proposed rule would remove the reference to the BLM State Director and instead refer only to the BLM. This would not change how the BLM applies these factors, and the decision would still be appealable under § 2801.10. This proposed change would improve the cost recovery process by enabling the BLM to make this determination at the appropriate level on a case-by-case basis

sts owed to the BLM. The proposed rule would remove the reference to the BLM State Director and instead refer only to the BLM. This would not change how the BLM applies these factors, and the decision would still be appealable under § 2801.10. This proposed change would improve the cost recovery process by enabling the BLM to make this determination at the appropriate level on a case-by-case basis.

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

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

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

Section 2804.25 How will the BLM process my application?

The proposed rule would amend paragraph (a)(1) of this section to add “unless your fees are exempt.” This clarifying edit is necessary because the BLM would not be required to identify your cost recovery fee if you are exempt from fees.

The proposed rule would redesignate paragraph (c)(2) of this section as (c)(3) and add a new paragraph (c)(2). Proposed paragraph (c)(2) of this section would require an operations, maintenance, and fire prevention plan for all powerline ROWs. Section 512 of FLPMA calls on the BLM to provide “owners and operators of electric transmission or distribution facilities located on public lands . . . with the option to develop and submit a plan” (43 U.S.C. 1772(c)(1)). Under existing § 2804.25(c), the BLM may require applicants to submit a plan of development (POD) for a ROW, as necessary

nance, and fire prevention plan for all powerline ROWs. Section 512 of FLPMA calls on the BLM to provide “owners and operators of electric transmission or distribution facilities located on public lands . . . with the option to develop and submit a plan” (43 U.S.C. 1772(c)(1)). Under existing § 2804.25(c), the BLM may require applicants to submit a plan of development (POD) for a ROW, as necessary. The operations, maintenance, and fire prevention plan may be included in the POD. The BLM generally requires PODs for large projects but believes the risk of wildfire associated with powerline ROWs merits an explicit requirement.

The BLM may also require other information to process the application. Under this proposed rule, the BLM relies on its general authority to condition ROW grants (43 U.S.C. 1761(b)(1)) to require applicants to submit operations, maintenance, and fire prevention plans for all new powerline ROWs. Applications to amend and renew ROWs must follow the same procedures as applications for new ROWs and, therefore, would also be subject to the proposed requirement for an operations, maintenance, and fire prevention plan.

However, if you already have an approved plan that meets the requirements of proposed § 2805.21(c) (“What is an operations, maintenance, and fire prevention plan for electric transmission and distribution rights-of-way?”), then you would not be required to submit a separate operations, maintenance, and fire prevention plan.

fire prevention plan for electric transmission and distribution rights-of-way?”), then you would not be required to submit a separate operations, maintenance, and fire prevention plan.

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

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

The proposed rule would add paragraph (a)(9) to this section, which would state that the BLM could deny your ROW application if you fail to comply with a deficiency notice. The BLM inadvertently removed this paragraph when this section was amended by a rule to support solar and wind energy development (see 81 FR 92121, December 19, 2016).

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

This rule would amend § 2804.27 by revising the title to read “What fees must I pay if the BLM denies my application or if I withdraw my application or I relinquish my grant?” This title revision would add the relinquishment of a grant to the situations where you may have to pay fees.

The proposed rule would make minor revisions to paragraphs (a) and (b) to make the language more consistent with the existing and proposed regulations. Proposed paragraph (c) would be added to explain how cost recovery fees would be applied under Category 5 or 6 if a holder relinquishes their grant. The holder would be liable for all costs the United States has incurred in connection with the grant, including relinquishment of the grant. Any outstanding fees would be due to the BLM within 30 days after the holder receives the bill. The holder would be refunded the amount of fees paid that the BLM does not use to process the holder's grant

Category 5 or 6 if a holder relinquishes their grant. The holder would be liable for all costs the United States has incurred in connection with the grant, including relinquishment of the grant. Any outstanding fees would be due to the BLM within 30 days after the holder receives the bill. The holder would be refunded the amount of fees paid that the BLM does not use to process the holder's grant.

This new paragraph is consistent with existing BLM practice but is necessary to clarify and make explicit the process for relinquishing a grant and explain to holders what is required of them.

Subpart 2805—Terms and Conditions of Grants

Section 2805.11 What does a grant contain?

The proposed rule would add a new § 2805.11(b) to provide that grants would include access (ingress and egress) rights to a ROW. The proposed rule would redesignate existing paragraphs (b) and (c) as paragraphs (c) and (d), respectively. Many ROWs need access to and from the ROW from outside the boundaries of the ROW for operations and maintenance. The proposed rule would add an explicit requirement for the authorized officer to include rights of ingress and egress in the grant. Prior to 2005, the regulations had included provisions for ingress and egress. The BLM is re-introducing these provisions to address the need for grants to include explicit provision for continued access throughout the term of the grant. While most projects include authorization for temporary access for initial construction, if those temporary access rights expire, then access for future operations and maintenance requires an additional authorization. The proposed requirement to include these rights of ingress and egress in the grant would ensure that the holder can engage in timely and efficient operation and maintenance of the grant.

The BLM may charge rent appropriate to the nature of these access routes outside the ROW boundary

ry access rights expire, then access for future operations and maintenance requires an additional authorization. The proposed requirement to include these rights of ingress and egress in the grant would ensure that the holder can engage in timely and efficient operation and maintenance of the grant.

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

Section 2805.12 With what terms and conditions must I comply?

Existing paragraph (a)(4) of this section requires holders to do everything reasonable to prevent and suppress wildfires on or within the immediate vicinity of the ROW. The language has been changed from “immediate vicinity” to “adjacent to” to be consistent with the proposed update to the definition of “substantial deviation.”

Section 2805.12(a)(8)(vi) requires holders to ensure that they construct, operate, maintain, and terminate facilities in accordance with the authorization, including the approved POD. The proposed rule would add “any approved operations, maintenance, and fire prevention plan” to incorporate the new requirements described in this proposed rule.

Section 2805.12(c)(5) and paragraph (d)(3) would be revised to provide that conditions associated with damaged and abandoned facilities that threaten human health or safety are not subject to the existing requirement that the BLM wait 3 months before requiring the holder to act. The BLM has experienced situations where grant holders create human health and safety hazards by abandoning facilities and equipment within their authorized ROW area

uld be revised to provide that conditions associated with damaged and abandoned facilities that threaten human health or safety are not subject to the existing requirement that the BLM wait 3 months before requiring the holder to act. The BLM has experienced situations where grant holders create human health and safety hazards by abandoning facilities and equipment within their authorized ROW area. If a holder's use is posing a health or safety hazard to the public, the BLM should be empowered to address it as soon as possible.

Section 2805.14 What rights does a grant provide?

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

The proposed rule would revise § 2805.14(d) by removing the word “minor” from the description of trimming, pruning, and removal of vegetation and by adding an allowance to undertake those activities to “protect public health and safety.” The term “minor” has caused confusion for the holders and is imprecise. The added allowance gives the BLM leeway to allow activity aimed at protecting public health and safety.

These proposed revisions provide the necessary detail for the holder as to what vegetation management they can and must do to operate and maintain their ROW or facility, including what does and does not constitute a substantial deviation.

Section 2805.14(e) would be revised to allow the holder to use vegetation removed during maintenance of the ROW. The use of existing vegetation would reduce non-native species intrusion and would expedite maintenance by the holder. The paragraph would also be revised to align with FLPMA's statutory provision that stone, soil, or vegetation may be used only if any necessary authorization to remove or use such materials has been obtained pursuant to applicable laws (43 U.S.C. 1764(f)). The BLM is specifically seeking comment on the practical impact of this proposed change

intrusion and would expedite maintenance by the holder. The paragraph would also be revised to align with FLPMA's statutory provision that stone, soil, or vegetation may be used only if any necessary authorization to remove or use such materials has been obtained pursuant to applicable laws (43 U.S.C. 1764(f)). The BLM is specifically seeking comment on the practical impact of this proposed change.

Section 2805.15 What rights does the United States retain?

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

Proposed § 2805.15(e) would add language to clarify that after a grant is executed, any modification of its terms and conditions generally requires the BLM to issue a new or amended ROW grant. The BLM conducts analyses, including under NEPA, before issuing a grant, and any changes to the terms or conditions of a grant would require the BLM to complete a new decision-making process, and may require the

Under proposed paragraph (f) of this section, the BLM could terminate an authorization for non-compliance. Existing § 2805.12 describes the terms and conditions that a grant holder must comply with and provides that the BLM could terminate a grant for non-compliance. This proposed paragraph would reinforce that this is a potential outcome.

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

at a grant holder must comply with and provides that the BLM could terminate a grant for non-compliance. This proposed paragraph would reinforce that this is a potential outcome.

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

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

As previously discussed, the proposed rule would remove the monitoring cost recovery fee table currently located under § 2805.16(a). The proposed rule would add a sentence referring the reader to § 2804.14(b), where they could find the proposed cost recovery table.

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

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

Section 2805.21 What is an operations, maintenance, and fire prevention plan for electric transmission and distribution and other rights-of-way?

Proposed § 2805.21 would codify many of the provisions of Section 512 of FLPMA in the BLM regulations

rule would provide updated contact information for the holder to request the schedule from the BLM's Division of Lands, Realty and Cadastral Survey.

Section 2805.21 What is an operations, maintenance, and fire prevention plan for electric transmission and distribution and other rights-of-way?

Proposed § 2805.21 would codify many of the provisions of Section 512 of FLPMA in the BLM regulations. Section 512(c) of FLPMA describes the requirements for vegetation management, facility inspection, and operations and maintenance plans. This proposed § 2805.21 describes the requirements for “operations, maintenance, and fire prevention plans,” which are consistent with the requirements of the plans described in Section 512 of FLPMA.

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

Proposed paragraph (b) of this section refers to Electric Reliability Organization (ERO) standards and would provide that those standards may be incorporated into operations, maintenance, and fire prevention plans developed under this section. The Energy Policy Act of 2005 created the ERO: an independent, self-regulating entity that enforces mandatory electric reliability rules on all users, owners, and operators of the nation's transmission system

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

Proposed paragraph (c) of this section describes the requirements for operations, maintenance, and fire prevention plans, consistent with Section 512(c) of FLPMA and with the USFS final rule implementing Section 512. Under proposed paragraph (c)(1) of this section, operations, maintenance, and fire prevention plans must identify the applicable facilities to be maintained.

inal rule implementing Section 512. Under proposed paragraph (c)(1) of this section, operations, maintenance, and fire prevention plans must identify the applicable facilities to be maintained.

Proposed paragraph (c)(2) of this section would require the operations, maintenance, and fire prevention plan to account for the holder's own operations and maintenance plans for the applicable facilities. Many ROW holders have existing, internal plans for their operations and maintenance that they have not previously been required to submit to the BLM for approval, including those who must comply with ERO standards. The holder may be able to submit these existing internal plans to satisfy the BLM's operations, maintenance, and fire prevention plan requirements. A holder would not need to submit a new operations, maintenance, and fire prevention plan if their existing plan meets the requirements of this section.

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

Under proposed paragraph (c)(4) of this section, an operations, maintenance, and fire prevention plan would be required to include schedules for the holder to notify the BLM about non-emergency maintenance, including when they must seek approval from the BLM and when the BLM must respond to that request. Non-emergency maintenance will be further discussed in the preamble for proposed § 2805.22

Proposed paragraph (c)(5) of this section would require the operations, maintenance, and fire prevention plan to describe processes for identifying changes in conditions and modifying the approved operations, maintenance, and fire prevention plan, if necessary. Either the BLM or holder could determine that the conditions in the ROW, which may include environmental conditions or

Proposed paragraph (c)(6) of this section would require the operations, maintenance, and fire prevention plan to include provision for removal and disposal of cut trees and branches, including plans for sale of forest products.

Under proposed paragraph (d) and consistent with Section 512(c)(4)(A) of FLPMA, the BLM would, to the extent practicable, review and approve the operations, maintenance, and fire prevention plan within 120 days of receiving the plan.

Proposed paragraph (e) of this section describes how the BLM would notify the holder that an operations, maintenance, and fire prevention plan requires modifications. The BLM would provide advance reasonable notice to the holder that a modification is necessary, and the holder would submit the proposed modification to the BLM. The BLM would, to the maximum extent practicable, review and approve the proposed operations, maintenance, and fire prevention plan modification in the same 120-day timeframe that applies to approval of new plans. This timeframe would be consistent with the requirements of Section 512 of FLPMA

older that a modification is necessary, and the holder would submit the proposed modification to the BLM. The BLM would, to the maximum extent practicable, review and approve the proposed operations, maintenance, and fire prevention plan modification in the same 120-day timeframe that applies to approval of new plans. This timeframe would be consistent with the requirements of Section 512 of FLPMA.

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

Proposed paragraph (f) of this section describes how certain holders may enter into an agreement with the BLM in lieu of an operations, maintenance, and fire prevention plan. An agreement must contain the same general requirements of operations, maintenance, and fire prevention plans described in this section. Agreements would need to include schedules, as described in proposed paragraph (c)(4) of this section and would be subject to the same modification requirements of proposed paragraph (e) of this section.

Proposed paragraph (g) of this section describes the criteria that a holder would be required to meet to be eligible to enter into an agreement. A holder could enter into an agreement with the BLM if they are not subject to the ERO reliability standards or if they sold less than 1,000,000 megawatt hours of electric energy for purposes other than resale during each of the 3 calendar years prior to enactment of Section 512 of FLPMA

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

Section 512(d)(2)(A) of FLPMA requires the Secretary to ensure that the minimum requirements of these agreements “reflect the relative financial resources of the applicable owner or operator compared to other owners or operators of an electric transmission or distribution facility.” The BLM is seeking comments from the public on how these agreements should be different from operations, maintenance, and fire prevention plans and how the BLM can ensure that it meets the requirements of Section 512(b)(2)(A).

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

Proposed § 2805.22 describes how holders could conduct vegetation management related activities and distinguishes between emergency and non-emergency conditions. This proposed section would implement the requirements of Section 512(c) and (e) of FLPMA.

Proposed paragraph (a) of this section describes the conditions that would be considered Emergency Conditions and what the holder would be allowed to do during Emergency Conditions without immediate notification to the BLM. An Emergency Condition would be if vegetation or hazard trees have contacted, or present an imminent danger of contacting, an electric transmission or distribution line. The proposed rule specifies that this threat could arise from vegetation or a hazard tree within or adjacent to a transmission line ROW

would be allowed to do during Emergency Conditions without immediate notification to the BLM. An Emergency Condition would be if vegetation or hazard trees have contacted, or present an imminent danger of contacting, an electric transmission or distribution line. The proposed rule specifies that this threat could arise from vegetation or a hazard tree within or adjacent to a transmission line ROW. Under proposed paragraph (a)(1) of this section, holders could prune or remove the vegetation or hazard tree to avoid the disruption of electric service and to eliminate immediate fire and safety hazards. Proposed paragraph (a)(2) would require the holder to notify the BLM within one calendar day after conducting these activities.

Proposed paragraph (b) of this section describes Non-Emergency Conditions for which the holder of a powerline ROW could conduct vegetation management activities. The holder could conduct activities without prior approval from the BLM if they are in compliance with the terms and conditions of the ROW grant, §§ 2805.12(a)(4) and 2805.14(d), and any BLM approved operations, maintenance, and fire prevention plan.

Proposed paragraph (b)(1) of this section describes the circumstances under which a holder would need to request approval to conduct vegetation management activities. Under proposed paragraph (b)(1)(i), a holder would need to seek approval from the BLM if the operations, maintenance, and fire prevention plan specifically requires prior approval. Prior approval for an activity may be required in an operations, maintenance, and fire prevention plan if the activity could have cultural or environmental impacts.

and fire prevention plan if the activity could have cultural or environmental impacts.

Prior approval would be required under proposed paragraph (b)(1)(ii) if the activity is not described in an approved operations, maintenance, and fire prevention plan. Proposed paragraph (b)(2) of this section describes how the BLM would be required to respond to requests under paragraph (b)(1) of this section. If the BLM does not respond to a request within the timeframe described in an approved operations, maintenance, and fire prevention plan, and the vegetation management activity is consistent with the holder's approved operations, maintenance, and fire prevention plan, a holder may proceed with the vegetation treatment activities. This provision would enhance the approval process for vegetation management activities to further support the goals of reducing fire risk.

Holders who do not have a BLM approved operations, maintenance, and fire prevention plan would not be affected by paragraphs (b)(1) or (b)(2) of this section, which describe how activities would be required to comply with operations, maintenance, and fire prevention plans. Existing holders would not have an operations, maintenance, and fire prevention plan until they amend or renew their ROW grant, or until they voluntarily submit an operations, maintenance, and fire prevention plan. The terms and conditions of some existing grants do not sufficiently describe the vegetation management activities that a holder may take. In the absence of an operations, maintenance, and fire prevention plan, holders would be required to comply with the terms and conditions of the grant and §§ 2805.12(a)(4) and 2805.14(d). Even when not required,

Proposed paragraph (c) mirrors § 2805.12(a)(4) but adds specific examples of reasonable actions that could be taken by the holder, including pruning or removal of vegetation and cooperation with the BLM to investigate, suppress, or respond to wildfires

plan, holders would be required to comply with the terms and conditions of the grant and §§ 2805.12(a)(4) and 2805.14(d). Even when not required,

Subpart 2806—Annual Rents and Payments

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

In proposed § 2806.13(e), the provisions for uncollected or under-collected rent would be modified by removing paragraphs (e)(1), (e)(2), and (e)(3). The current regulations unnecessarily restrict the BLM to only collecting uncollected or under-collected rent in certain circumstances. The proposed rule would remove those conditions, and the BLM would be able to collect any rents and fees due to the United States.

In new proposed § 2806.13(h), the BLM is explicitly providing that rent would be due regardless of whether a courtesy bill has been sent or received. This addition would clarify current BLM practice to the public.

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

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

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

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

Under existing paragraph (b)(3) of this section, the BLM could reduce or waive rent if a holder has a ROW in connection with the grant at issue and for which the United States receives compensation

s in how waivers or reductions in rent are approved. Therefore, proposed § 2806.15(b) would clarify that a BLM State Director is the authorizing official with respect to rental reductions and waivers.

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

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

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

The proposed section would revise paragraph (c) to update the contact address of the BLM and highlight availability of the Per Acre Rent Schedule on the BLM website

ough (b)(5), as revised by this proposed rule, would be at the discretion of the BLM State Director. This proposed revision is consistent with existing BLM practice.

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

The proposed section would revise paragraph (c) to update the contact address of the BLM and highlight availability of the Per Acre Rent Schedule on the BLM website.

Sections 2806.30 Through 2806.44

The proposed rule would remove §§ 2806.30 through 2806.44, including the header “COMMUNICATION SITE RIGHTS-OF-WAY” between §§ 2806.26 and 2806.30. Many of the requirements of these sections would be moved into new part 2860, which would consolidate all requirements for communications uses. Any substantive changes to those requirements are discussed in the sections of this preamble focused on new part 2860. The following table shows where the requirements of existing §§ 2806.30 through 2806.44 can be found in this proposed rule.

Table 2—Current Subpart 2806 vs. Proposed Subpart 2866 Current section Current title Proposed section Proposed title Subpart 2806 Annual Rents and Payments Subpart 2866 Annual Rents and Payments. § 2806.30 What are the rents for communication site rights-of-way? § 2866.30 What are the rents for Communications Uses? § 2806.31 How will BLM calculate rent for a right-of-way for communication uses in the schedule? § 2866.31 How will the BLM calculate rent for Communications Uses in the schedule? § 2806.32 How does BLM determine the population strata served? § 2866.32 How does the BLM determine the population strata served for your facility? § 2806.33 How will BLM calculate the rent for a grant or lease authorizing a single use communication facility? § 2866.33 How will the BLM calculate the rent for a single use communication facility? § 2806.34 How will BLM calculate the rent for a grant or lease authorizing a multiple-use communication facility? § 2866.34 How will the BLM calculate the rent for a grant for a multiple-use communication facility? § 2806.35 How

late the rent for a grant or lease authorizing a single use communication facility? § 2866.33 How will the BLM calculate the rent for a single use communication facility? § 2806.34 How will BLM calculate the rent for a grant or lease authorizing a multiple-use communication facility? § 2866.34 How will the BLM calculate the rent for a grant for a multiple-use communication facility? § 2806.35 How will BLM calculate rent for private mobile radio service (PMRS), internal microwave, and “other” category uses? § 2866.35 How will the BLM calculate rent for private mobile radio service (PMRS), internal microwave, and “other” category uses? § 2806.36 If I am a tenant or customer in a facility, must I have my own grant or lease and if so, how will this affect my rent? § 2866.36 If I am a tenant or customer in a facility, must I have my own grant and if so, how will this affect my rent? § 2806.37 How will BLM calculate rent for a grant or lease involving an entity with a single use (holder or tenant) having equipment or occupying space in multiple BLM-authorized facilities to support that single use? § 2866.37 How will the BLM calculate rent for a grant involving an entity with a single use (holder or tenant) having equipment or occupying space in multiple BLM-authorized facilities to support that single use? § 2806.38 Can I combine multiple grants or leases for facilities located on one site into a single grant or lease? § 2866.38 Can I combine multiple grants for facilities located at one site into a single grant? § 2806.39 How will BLM calculate rent for an lease for a facility manager's use? § 2866.39 How will the BLM calculate rent for an grant for a facility manager's use? § 2806.40 How will BLM calculate rent for a grant or lease for ancillary communication uses associated with communication uses on the rent schedule? § 2866.40 How will the BLM calculate rent for an authorization for ancillary Communications Uses associated with Communications Uses on the rent schedule? § 2806.41 How will BLM calculate rent for com

te rent for an grant for a facility manager's use? § 2806.40 How will BLM calculate rent for a grant or lease for ancillary communication uses associated with communication uses on the rent schedule? § 2866.40 How will the BLM calculate rent for an authorization for ancillary Communications Uses associated with Communications Uses on the rent schedule? § 2806.41 How will BLM calculate rent for communication facilities ancillary to a linear grant or other use authorization? § 2866.41 How will the BLM calculate rent for communications facilities ancillary to a linear grant or other use authorization? § 2806.42 How will BLM calculate rent for a grant or lease authorizing a communication use within a federally-owned communication facility? § 2866.42 How will the BLM calculate rent for Communications Uses within a federally owned communications facility? § 2806.43 How does BLM calculate rent for passive reflectors and local exchange networks? § 2866.43 How does the BLM calculate rent for passive reflectors and local exchange networks? § 2806.44 How will BLM calculate rent for a facility owner's or facility manager's grant or lease which authorizes communication uses? § 2866.44 How will the BLM calculate rent for a facility owner's or facility manager's grant which authorizes Communications Uses? Section 2806.52 Rents and Fees for Solar Energy Development Grants

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

Section 2806.62 Rents and Fees for Wind Energy Development Grants

The proposed section would revise paragraphs (a)(7) and (b)(2) to update the contact address of the BLM and highlight availability of the current wind energy acreage rent schedule and the current MW rate schedule for wind energy development on the BLM website

rent MW rate schedule for solar energy development on the BLM website.

Section 2806.62 Rents and Fees for Wind Energy Development Grants

Subpart 2807—Grant Administration and Operation

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

The proposed rule would redesignate existing paragraph (g) of this section as paragraph (h) and add a new paragraph (g). Proposed paragraph (g) of this section would codify the liability provisions at Section 512(g) of FLPMA and describe when the BLM may not impose strict liability.

Under proposed § 2805.21 of the proposed rule, the BLM would require operations, maintenance, and fire prevention plans for all new, renewed, or amended electric transmission and distribution ROWs; plans could be submitted to the BLM on a voluntary basis by holders of existing electric transmission and distribution ROWs and other types of ROWs. Operations, maintenance, and fire prevention plans would be advantageous to both the BLM and the ROW holder by better defining authorized activities, schedules for maintenance, and wildfire risk reduction measures, and by introducing limits on the ROW holder's liability under the specific circumstances described in this section.

Under proposed paragraph (g)(1) of this section, the BLM could not impose strict liability for damages or injuries resulting when the BLM unreasonably withholds or delays approval of an operations, maintenance, and fire prevention plan. Under paragraph (g)(2) of this section, the BLM could not impose strict liability if the BLM fails to adhere to an applicable schedule in an approved operations, maintenance, and fire prevention plan or agreement

the BLM could not impose strict liability for damages or injuries resulting when the BLM unreasonably withholds or delays approval of an operations, maintenance, and fire prevention plan. Under paragraph (g)(2) of this section, the BLM could not impose strict liability if the BLM fails to adhere to an applicable schedule in an approved operations, maintenance, and fire prevention plan or agreement.

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

The proposed rule would amend § 2807.17(b)(2) to change the word “terminate” to “relinquish.” This change would make this section consistent with changes to § 2886.17 and would align with the nomenclature that the BLM uses when processing ROWs. The proposed rule would also add § 2807.17(b)(3) to allow the BLM to terminate a ROW grant when a court terminates or requires the BLM to terminate the ROW. The proposed rule would redesignate paragraph (b)(3) as paragraph (b)(4).

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

The proposed rule would amend paragraph (b) of this section by replacing “processing and monitoring fees” with “cost recovery fees,” for consistency with other revisions in this proposed rule.

Section 2807.20(d) explains that pre-FLPMA (before Oct. 21, 1976) grants cannot be amended, renewed, or reinstated.

ecovery fees,” for consistency with other revisions in this proposed rule.

Section 2807.20(d) explains that pre-FLPMA (before Oct. 21, 1976) grants cannot be amended, renewed, or reinstated.

Section 706 of the FLPMA repealed numerous laws to the extent they applied to the issuance of ROWs by the BLM. Once a law has been repealed, the BLM can no longer approve any actions under the repealed law. The proposed rule would combine existing language from different parts of paragraph (d), including paragraph (d)(2), as proposed paragraph (d)(1) and would revise the text to clarify that, when a holder seeks to amend a pre-FLPMA grant, the BLM would retain the holder's pre-FLPMA ROW for the portion of the holder's ROW not affected by the holder's amendment application unless the

Proposed paragraph (d)(2) would require a new application and grant for expiring authorizations. Proposed paragraph (d)(3) would require a new application and grant if a pre-FLPMA authorization is terminated due to non-compliance. Finally, existing paragraph (d)(1) is redesignated as proposed paragraph (d)(4) and notes that the BLM would issue any new authorization under the authority of the FLPMA and explains that the new authorization may have the same terms and conditions and annual rents as the original grant.

Section 2807.22 How do I renew my grant?

The proposed rule would establish new customer service standards for the BLM for renewal applications. The proposed rule would modify paragraph (f) of this section to establish a customer service standard of 60 days for the BLM to review an application for a renewal to determine if that application has been timely submitted and is complete and to notify the applicant in writing of the BLM's determination

posed rule would establish new customer service standards for the BLM for renewal applications. The proposed rule would modify paragraph (f) of this section to establish a customer service standard of 60 days for the BLM to review an application for a renewal to determine if that application has been timely submitted and is complete and to notify the applicant in writing of the BLM's determination. If the BLM determines that a renewal application was timely submitted and is complete, then its written notice would confirm that, until the BLM issues a decision on the renewal application, the holder's existing grant would remain valid, provided that the holder of the authorization remains in compliance, including with rent and bonding obligations.

The proposed rule would add a new paragraph (h) to this section to provide grant holders a clear understanding of when their renewal applications would be subject to the BLM's customer service standards. If grant holders do not comply with the existing requirement to submit their application at least 120 days before their grant expires, the BLM would not be held to the customer service standards for processing the application.

This proposed paragraph would not be a substantive change from existing practice.

Subpart 2809—Competitive Process for Leasing Lands for Solar and Wind Energy Development Inside Designated Leasing Areas

Section 2809.19 Applications in Designated Leasing Areas or on Lands That Later Become Designated Leasing Areas

The proposed rule would revise paragraph (d) of this section by updating a reference to a section that would be redesignated by this proposed rule. The reference to § 2805.11(b)(2) would be revised to read § 2805.11(c)(2). This change is necessary for consistency with proposed revisions to § 2805.11.

43 CFR Part 2860 Communications Uses

The proposed rule would establish part 2860, Communications Uses

posed rule would revise paragraph (d) of this section by updating a reference to a section that would be redesignated by this proposed rule. The reference to § 2805.11(b)(2) would be revised to read § 2805.11(c)(2). This change is necessary for consistency with proposed revisions to § 2805.11.

43 CFR Part 2860 Communications Uses

The proposed rule would establish part 2860, Communications Uses. This proposed part would explain the requirements for communications uses grants and consolidate all communications use-specific provisions into one location. The requirements of part 2800 would apply to communications uses grants, unless otherwise described in this new part. Some sections in proposed part 2860 would contain the requirements of sections that would be removed from part 2800. Some sections in 2860 have a direct parallel to existing part 2800 but contain additional requirements that would apply specifically to communications uses. This preamble describes how the proposed rule differs from existing requirements. Proposed subparts 2861 through 2865 and 2868 are based on the requirements in existing subparts 2801 through 2805 and 2808, respectively, but contain additional communications use requirements. Table 3 shows the relationship between proposed subparts 2861 through 2865 and 2868 and existing subparts 2801 through 2805 and 2808. Most of the requirements pertaining to communications uses in existing subpart 2806 would be moved to proposed subpart 2866. Table 4 shows the relationship between proposed subpart 2866 and existing subpart 2806. This preamble describes proposed new or revised provisions. Provisions not discussed are substantially similar to their existing counterpart.

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

Table 3—Sections of the Proposed Rule Supplementing the 2800 Regulations for Communications Uses Current section Current title Proposed section Proposed title Subpart 2801 General Information Subpart 2861 General Information. New Section § 2861.1 What requirements of part 2800 apply to my grant? § 2801.2 What is the objective of BLM's right-of-way program? § 2861.2 What is the objective of the BLM's Communications Uses program? § 2801.5(b) What acronyms and terms are used in the regulations in this part? § 2861.5(b) What acronyms and terms are used in the regulations in this part? § 2801.8 Severability. § 2861.8 Severability. § 2801.9(a)(5) When do I need a grant? § 2861.9 When do I need a grant? Subpart 2802 Lands Available for FLPMA Grants Subpart 2862 Lands Available for Grants. § 2802.11 How does the BLM designate right-of-way corridors and designated leasing areas? § 2862.11 How does the BLM designate communications sites and establish communications site management plans? Subpart 2804 Applying for FLPMA Grants Subpart 2864 Applying for Grants. § 2804.10 Who may hold a grant? § 2864.10 What should I do before I file my application? § 2804.12 What must I do when submitting my application? § 2864.12 What must I do when submitting my application? § 2804.24 Do I always have to submit an application for a grant using Standard Form 299? § 2864.24 Do I always have to use Standard Form 299 when submitting my application for a grant? § 2804.25 How will BLM process my application? § 2864.25 How will the BLM process my Communications Uses application? § 2804.26 Under what circumstances may BLM deny my application? § 2864.26 Under what circumstances may the BLM deny my application? § 2804.35 How will the BLM prioritize my solar or wind energy application? § 2864.35 How will the BLM prioritize my Communications Uses application? Subpart 2805 Terms

BLM process my application? § 2864.25 How will the BLM process my Communications Uses application? § 2804.26 Under what circumstances may BLM deny my application? § 2864.26 Under what circumstances may the BLM deny my application? § 2804.35 How will the BLM prioritize my solar or wind energy application? § 2864.35 How will the BLM prioritize my Communications Uses application? Subpart 2805 Terms and Conditions of Grants Subpart 2865 Terms and Conditions of Grants. § 2805.14 What rights does a grant provide? § 2865.14 What rights does a grant provide? Subpart 2808 Trespass Subpart 2868 Communications Uses Trespass. § 2808.10 What is a trespass? § 2868.10 What is a Communications Uses trespass? Subpart 2861—General Information

Section 2861.1 What requirements of part 2800 apply to my grant?

This section explains that the requirements of part 2800 would apply to communications uses grants unless a provision in part 2860 provides otherwise. Part 2800 of the existing and proposed regulations describes requirements for general ROWs. Part 2860 describes requirements that would specifically apply to communications uses grants, which are generally in addition to the requirements described in part 2800.

Section 2861.2 What is the objective of the BLM's Communications Uses program?

Proposed § 2861.2 describes the objectives of the communications uses program. It is based on existing § 2801.2.

Proposed paragraph (b) in this section describes the BLM's objectives of administering the communications uses program through responsible development on the BLM-administered lands and providing a safe environment. This proposed paragraph would not constitute a substantive change from existing policy.

Proposed paragraph (d) of this section explains that the BLM would collect market value rent for communications uses authorized on public lands as required under 43 U.S.C. 1764.

Proposed paragraph (e) describes the BLM's objective of promoting the expansion of communications uses in rural America

vironment. This proposed paragraph would not constitute a substantive change from existing policy.

Proposed paragraph (d) of this section explains that the BLM would collect market value rent for communications uses authorized on public lands as required under 43 U.S.C. 1764.

Proposed paragraph (e) describes the BLM's objective of promoting the expansion of communications uses in rural America. The proposed changes in this section reflect E.O. 13821, which directs the BLM to promote communications uses on public land in rural America. The words “wherever practical” would be included for consistency with the changes to the objectives in § 2801.2.

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

Proposed § 2861.5 defines terms that are specific to communications uses. The proposed section includes terms currently defined in existing § 2801.5. New definitions are proposed to be added to provide clarity for the public when the BLM is administering an authorization for communications uses.

The definitions for “RMA,” “Base Rent,” “Customer,” “Facility Manager,” “Facility Owner,” “Site,” and “Tenant” would be moved from § 2801.5, the definitions of “Facility” and “Grant” would be copied from § 2801.5, and those definitions would be revised slightly to reflect their specific application in the context of communications uses.

The proposed rule would add the term and a definition of “Annual inventory certification” to clarify the nature of the document that a holder must provide on an annual basis (see existing § 2806.31(c) and proposed § 2866.31(c)).

The proposed rule would add the term and a definition of “collocation” to clarify when an occupant is collocated within or on a holder's facility. This concept is relevant for communications uses rent (see proposed § 2866.31) and when a grant would be required (see proposed § 2866.36)

he document that a holder must provide on an annual basis (see existing § 2806.31(c) and proposed § 2866.31(c)).

The proposed rule would add the term and a definition of “communications site” to establish what is meant when describing a communications site within an authorization document. The lack of a definition caused confusion because, often, the BLM and industry refer to a “communications site” when they really mean a “communications facility.” This definition clarifies the difference between the terms.

The proposed rule would add the term and a definition of “communications site management plans” to clarify that these plans guide development and operations at communications sites. These plans may be called “implementation level plans,” meaning that they take action to implement a land use plan (generally a Resource Management Plan (RMP)), which contains standards and guidelines and describes the communications uses that are allowed or restricted at a communications site. The BLM identifies and names communications sites through the preparation of a communications site management plan. Additionally, the communications site management plan provides holders and future proponents with the development conditions for a particular site.

The proposed rule would add the term and a definition of “communications uses” to describe the types of uses considered to be a communications use. This definition includes all ROW uses to which part 2860 would apply.

ould add the term and a definition of “communications uses” to describe the types of uses considered to be a communications use. This definition includes all ROW uses to which part 2860 would apply.

The definition for the term “Communications uses rent schedule” would be moved here from § 2801.5. The change is necessary to maintain consistency in terminology throughout the new proposed part 2860. The term “communications uses rent schedule” would continue to apply to all types of communications uses identified in existing § 2801.5 for purposes of identifying and collecting rent, and it would also apply to the following additional uses proposed to be added to this definition: “facility manager,” “internet service provider (ISP),” “passive reflector,” and “local exchange network.”

The proposed rule would add the term and definition of “duly filed application” to explain that it is an application which includes all the elements required by § 2804.25.

The proposed rule would add the term and a definition of “occupant.” Occupants are entities, other than the holder of a grant, which use a facility covered by that authorization.

Section 2861.8 Severability

Proposed § 2861.8 is based on the existing § 2801.8 (and also parallels § 2881.9, which is proposed to be changed to § 2881.8) and would provide that any decision finding any provisions in part 2860 to be invalid would not affect the remaining provisions, which would remain in force.

Section 2861.9 When do I need a grant?

Proposed § 2861.9 is based on the existing § 2801.9 and would describe and provide some examples of when an authorization is needed to use public lands for communications uses.

Proposed paragraph (a) of this section provides that an authorization would be required when installing a facility that

Proposed paragraph (b) of this section explains that an authorization would be required when installing a linear communications facility, such as a fiber optic cable

ribe and provide some examples of when an authorization is needed to use public lands for communications uses.

Proposed paragraph (a) of this section provides that an authorization would be required when installing a facility that

Proposed paragraph (b) of this section explains that an authorization would be required when installing a linear communications facility, such as a fiber optic cable. Due to the communications nature of fiber optic cables and telephone lines, proposed part 2860 is an appropriate location for regulations administering these communications uses.

Subpart 2862—Lands Available for Grants

Section 2862.11 How does the BLM designate communications sites and establish communications site management plans?

Proposed § 2862.11 would describe how the BLM designates communications sites and when communications site management plans are prepared.

This proposed section is based on existing § 2802.11, which describes how the BLM designates ROW corridors and designated leasing areas.

Under proposed § 2862.11(a), the BLM would coordinate in the preparation of the communications site management plans with other Federal agencies, State, local, and Tribal governments, and the public, consistent with the coordination requirements of existing § 2802.11(a).

Proposed paragraph (b) would identify factors the BLM considers when determining land suitability for communications uses, in addition to the factors described in existing § 2802.11(b).

Proposed paragraph (c) describes how the BLM would establish communications site management plans. As described under the definition for the plans, they are implementation-level plans that tier to the applicable RMP.

While communications site management plans are generally adopted outside the land use planning process, the BLM often refers to these plans in RMPs

ribed in existing § 2802.11(b).

While communications site management plans are generally adopted outside the land use planning process, the BLM often refers to these plans in RMPs. The identification of communications sites and the adoption of their complementary management plans must be supported by appropriate NEPA analysis, which could take the form of an applicable categorical exclusion or determination of NEPA adequacy.

Subpart 2864—Applying for Grants

Section 2864.10 What should I do before I file my application?

Proposed § 2864.10 is based on existing § 2804.10.

Proposed § 2864.10(a) describes the purpose of a preliminary application review meeting. Preliminary application review meetings provide valuable information and reveal project constraints to proponents. This information should result in more thorough and complete applications that would streamline BLM application processing, consistent with E.O. 13821 and a Presidential Memorandum directed to the Secretary, both issued on January 8, 2018. A preliminary application review meeting is not a requirement but is strongly encouraged.

Proposed paragraph (b) would prompt applicants to ask the BLM for a copy of any applicable communications site management plan for the site of the proposed project. Having a communications site management plan would assist the applicant in developing a project proposal consistent with the communications site management plan and streamline the processing of an application.

Paragraph (c) would specify what an applicant should acquire before submitting an application to the BLM. A complete communications uses application almost always requires proof of an FCC license

a communications site management plan would assist the applicant in developing a project proposal consistent with the communications site management plan and streamline the processing of an application.

Paragraph (c) would specify what an applicant should acquire before submitting an application to the BLM. A complete communications uses application almost always requires proof of an FCC license. If an applicant already has included a license as part of its application, it eliminates the need for the BLM to request that information, and thereby cuts down on processing times.

Section 2864.12 What must I do when submitting my application?

Proposed § 2864.12 would describe the supplemental information needed to accompany the SF-299, which is required for all communications uses applications. Proposed § 2864.12 is based on existing § 2804.12 but proposes additional specific communications uses requirements for applications. Existing § 2804.12(f) states that the BLM may require you to submit additional information during the processing of your application. This proposed section standardizes the requirements specific to communications uses, to streamline the application process for these types of authorizations.

Proposed paragraph (a) of this section would clarify that when an application for a ROW is filed electronically, an actual signature may not be required. Instead of a manual signature, the applicant could meet the BLM's standards for electronic commerce. This proposed revision would allow applicants to file their applications electronically. These changes would streamline application submissions and allow for more flexibility in how applications are submitted.

Proposed paragraph (a)(1) of this section refers to § 2804.12 for a list of attachments that should be included in all applications.

Proposed paragraph (a)(2) would require an applicant to provide proof of their FCC license

plicants to file their applications electronically. These changes would streamline application submissions and allow for more flexibility in how applications are submitted.

Proposed paragraph (a)(1) of this section refers to § 2804.12 for a list of attachments that should be included in all applications.

Proposed paragraph (a)(2) would require an applicant to provide proof of their FCC license. This requirement is consistent with current BLM practice, and the BLM proposes to incorporate this requirement into the regulations to notify applicants what to expect. There is no expectation that this new language would create any additional burden for communications uses applicants.

Paragraph (a)(3) of this section would require an applicant to submit the GIS shapefiles for a map of the proposed project. That requirement is consistent with proposed changes to § 2804.12(a)(4), which already requires an applicant to submit a map of the proposed project and would further require the applicant to submit GIS shapefiles, upon request, under the proposed rule. When a BLM office is conducting a NEPA analysis, it is not uncommon for the various resource specialists to request that an applicant provide project data electronically in a GIS format. It is also likely the individual or entity responsible for the application already has the proposed project in a GIS format, and therefore, the BLM would not be adding a significant burden upon the applicant. This new requirement would be expected to reduce application processing times by allowing the BLM to integrate project locations into existing resource datasets and analyze the potential resource impacts more quickly.

d be expected to reduce application processing times by allowing the BLM to integrate project locations into existing resource datasets and analyze the potential resource impacts more quickly.

Paragraph (a)(4) of this section would require an application to include draft engineering or construction drawings. By including these drawings, applicants could expect faster application processing times. An applicant usually produces draft construction drawings before an applicant intends to submit their application, so the BLM does not expect this requirement to create any additional burden. The BLM expects that the inclusion of this information in the application would streamline application processing times.

Paragraph (a)(5) of this section would require that a communications uses application include technical data related to communication equipment used in and on the proposed facility. The proposed rule would specify the

Paragraph (a)(6) would require an applicant to provide a communications uses plan of development (POD) in support of an application. The BLM may require a POD for an application under existing § 2804.25(c). The POD is an essential tool for the BLM to understand the scope and complexity of the proposed project. A complete POD can drastically reduce the time spent on processing an application, primarily during the NEPA process. Current BLM policy requires a POD be submitted with all applications and the proposed rule would not be expected to create any additional burden on the applicant.

Proposed paragraph (b) would state that the BLM may require additional information from an applicant about their application while it is being processed. For example, the BLM may require an applicant to submit information about the applicant's plans to comply with a visual plan included in the RMP for the area ( e.g., paint color or stealth design). The proposed changes explain that the BLM would not process an application until the additional information has been submitted

tion from an applicant about their application while it is being processed. For example, the BLM may require an applicant to submit information about the applicant's plans to comply with a visual plan included in the RMP for the area ( e.g., paint color or stealth design). The proposed changes explain that the BLM would not process an application until the additional information has been submitted. The BLM anticipates this change would help expedite application review and processing. This proposed paragraph is based on existing § 2804.12(f).

Section 2864.24 Do I always have to use Standard Form 299 when submitting my application for a grant?

Proposed § 2864.24 would require that the SF-299 be used for all communications uses applications, consistent with Section 606(b)(2) of the MOBILE NOW Act. This proposed section would be consistent with current BLM practice, as well as that of many other Federal agencies, and would clarify requirements to the applicant.

Section 2864.25 How will the BLM process my Communications Uses application?

Proposed § 2864.25 provides that the BLM would process communications uses applications consistent with existing § 2804.25. In addition, this section would require the BLM to approve or deny a duly filed application for a grant within 270 days. This is in accordance with the MOBILE NOW Act, which requires Federal agencies to approve or deny a communications facility installation application within 270 days of receiving a duly filed application. The BLM anticipates this new regulation would shorten application processing times and establish consistency among BLM offices.

Section 2864.26 Under what circumstances may the BLM deny my application?

Proposed § 2864.26 is based on existing § 2804.26 and describes when an application for communications uses may be denied. Reasons for denial include the provisions of existing § 2804.26, along with reasons specific to communications uses, such as interference with other communications users

onsistency among BLM offices.

Section 2864.26 Under what circumstances may the BLM deny my application?

Proposed paragraph (a) of this section is based on § 2804.26(a)(1), which states that an application may be denied if the proposed use is inconsistent with any other previously authorized ROW, including communications uses on the public lands. It is the goal of the BLM to allow multiple communications uses within a communications site area if they are compatible with one another. Existing communications uses ROW authorization holders would be given the opportunity during the application process to provide evidence of potential interference with their use. The BLM would evaluate any such evidence to determine if the subsequently proposed communications uses might potentially interfere with the previously authorized communications uses, and if so, whether a denial is warranted under the circumstances.

Under proposed paragraphs (b) and (c) of this section, an application could be denied if the proposed use presents a public health or safety issue or is not in conformance with the RMP or communications site management plan.

Section 2864.35 How will the BLM prioritize my Communications Uses application?

Proposed § 2864.35 describes how the BLM would prioritize applications for grants. This section is based on existing § 2804.35, which describes how the BLM prioritizes solar and wind applications. Under this proposed section, the BLM would prioritize processing applications for grants that meet the needs of underserved, rural, and Tribal communities, as well as first responders

Uses application?

This proposed section was added in response to E.O. 13821, discussed earlier in this preamble.

Subpart 2865—Terms and Conditions of Grants

Section 2865.14 What rights does a grant provide?

Proposed § 2865.14 would describe the rights provided by a grant, in addition to the rights described in existing § 2805.14.

Proposed paragraph (a) of this section is based on existing § 2805.14(a) and would be revised to clarify that only facilities explicitly allowed by an authorization are acceptable.

Proposed paragraph (b) of this section is based on existing § 2805.14(b) and would describe when the holder of an authorization may allow subleasing of their facilities to others. The term “subleasing” is added to maintain consistency with current BLM policy when administering grants. Currently, many authorizations are managed by another entity that was not approved by the BLM. This paragraph would clarify what an authorization may allow.

when administering grants. Currently, many authorizations are managed by another entity that was not approved by the BLM. This paragraph would clarify what an authorization may allow.

Proposed paragraph (c) of this section is based on existing § 2805.14(c) and states that the authorization holder may allow another entity to conduct day-to-day operations of the facility, as authorized by the BLM. The existing section describes access to lands, but the proposed rule would instead refer to “lands or facilities.” This change is consistent with other changes to the regulations proposed to be moved to part 2860, which are intended to acknowledge that an authorization may be either a grant to use a facility or a grant for the use of public lands.

Proposed paragraph (d) of this section would set the standard length for a grant at 30 years. The BLM considers a 30-year-term to be consistent with Section 504(b) of FLPMA's “reasonable term” limitation, and that interpretation would be carried forward for grants. The BLM could determine in a given case that a shorter term is appropriate for an authorization. For example, a BLM office could determine the resource issues at the proposed site, such as environmental or Tribal concerns, may warrant a shorter term for the authorization.

Subpart 2866—Annual Rents and Payments

Proposed subpart 2866 would contain the rental requirements for grants. Many of the sections would be moved from

ation.

Subpart 2866—Annual Rents and Payments

Proposed subpart 2866 would contain the rental requirements for grants. Many of the sections would be moved from

Table 4—Proposed Subpart 2866 vs Existing Subpart 2806 Section 2866 based on or moved from 2806 Current section Current title Proposed section Proposed title Subpart 2806 Annual Rents and Payments Subpart 2866 Annual Rents and Payments. Based on § 2806.14 Under what circumstances am I exempt from paying rent? § 2866.14 Under what circumstances am I exempt from paying rent? Based on § 2806.15 Under what circumstances may BLM waive or reduce my rent? § 2866.15 Under what circumstances may the BLM waive or reduce my rent? Based on § 2806.23 How will the BLM calculate my rent for linear rights-of-way the Per Acre Rent Schedule covers? § 2866.23 How will the BLM calculate my rent for linear rights-of-way for Communications Uses? Moved from § 2806.30 What are the rents for communication site rights-of-way? § 2866.30 What are the rents for Communications Uses? Moved from § 2806.31 How will BLM calculate rent for a right-of-way for communication uses in the schedule? § 2866.31 How will the BLM calculate rent for Communications Uses in the schedule? Moved from § 2806.32 How does BLM determine the population strata served? § 2866.32 How does the BLM determine the population strata served for your facility? Moved from § 2806.33 How will BLM calculate the rent for a grant or lease authorizing a single use communication facility? § 2866.33 How will the BLM calculate the rent for a single use communication facility grant? Moved from § 2806.34 How will BLM calculate the rent for a grant or lease authorizing a multiple-use communication facility? § 2866.34 How will the BLM calculate the rent for a multiple-use communication facility grant? Moved from § 2806.35 How will BLM calculate rent for private mobile radio service (PMRS), internal microwave, and “other” category users? § 2866.35 How will the BLM calculate rent for private mobile radio service (PMRS), internal m

t for a grant or lease authorizing a multiple-use communication facility? § 2866.34 How will the BLM calculate the rent for a multiple-use communication facility grant? Moved from § 2806.35 How will BLM calculate rent for private mobile radio service (PMRS), internal microwave, and “other” category users? § 2866.35 How will the BLM calculate rent for private mobile radio service (PMRS), internal microwave, and “other” category uses? Moved from § 2806.36 If I am a tenant or customer in a facility, must I have my own grant or lease and if so, how will this affect my rent? § 2866.36 If I am a tenant or customer in a facility, must I have my own grant and if so, how will this affect my rent? Moved from § 2806.37 How will BLM calculate rent for a grant or lease involving an entity with a single use (holder or tenant) having equipment or occupying space in multiple BLM-authorized facilities to support that single use? § 2866.37 How will the BLM calculate rent for a grant involving an entity with a single use (holder or tenant) having equipment or occupying space in multiple BLM-authorized facilities to support that single use? Based on § 2806.38 Can I combine multiple grants or leases for facilities located on one site into a single grant or lease? § 2866.38 Can I combine multiple grants for facilities located at one site into a single grant? Moved from § 2806.39 How will BLM calculate rent for a lease for a facility manager's use? § 2866.39 How will the BLM calculate rent for a grant for a facility manager's use? Moved from § 2806.40 How will BLM calculate rent for a grant or lease for ancillary communication uses associated with communication uses on the rent schedule? § 2866.40 How will the BLM calculate rent for an authorization for ancillary Communications Uses associated with Communications Uses on the rent schedule? Based on § 2806.41 How will BLM calculate rent for communication facilities ancillary to a linear grant or other use authorization? § 2866.41 How will the BLM calculate rent for communications facili

with communication uses on the rent schedule? § 2866.40 How will the BLM calculate rent for an authorization for ancillary Communications Uses associated with Communications Uses on the rent schedule? Based on § 2806.41 How will BLM calculate rent for communication facilities ancillary to a linear grant or other use authorization? § 2866.41 How will the BLM calculate rent for communications facilities ancillary to a linear grant or other use authorization? Based on § 2806.42 How will BLM calculate rent for a grant or lease authorizing a communication use within a federally-owned communication facility? § 2866.42 How will the BLM calculate rent for Communications Uses within a federally owned communications facility? Moved from § 2806.43, but the terms would be moved to § 2861.5 How does BLM calculate rent for passive reflectors and local exchange networks? § 2866.43 How does the BLM calculate rent for passive reflectors and local exchange networks? Moved from § 2806.44 How will BLM calculate rent for a facility owner's or facility manager's grant or lease which authorizes communication uses? § 2866.44 How will the BLM calculate rent for a facility owner's or facility manager's grant which authorizes Communications Uses? For a discussion of the sections in subpart 2806 that would be removed by this proposed rule, see the preamble discussion of subpart 2806.

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

Proposed § 2866.14 describes when a holder would be exempt from paying rent. Proposed paragraph (a)(1) of this section states that Federal, State, and local governments, along with their instrumentalities, would be exempt from paying rent. Proposed paragraphs (a)(2) and (a)(3) carry over from paragraphs (a)(3) and (a)(4) of § 2806.14. Proposed paragraph (b) describes the proposed exceptions to these exemptions.

Under paragraph (b)(1) of this section, a holder would not be exempt from paying rent if the holder is in trespass

Federal, State, and local governments, along with their instrumentalities, would be exempt from paying rent. Proposed paragraphs (a)(2) and (a)(3) carry over from paragraphs (a)(3) and (a)(4) of § 2806.14. Proposed paragraph (b) describes the proposed exceptions to these exemptions.

Under paragraph (b)(1) of this section, a holder would not be exempt from paying rent if the holder is in trespass. This is not a change from existing requirements but would be added to the regulations to provide clarity to holders.

Proposed paragraphs (b)(2)(i) and (b)(2)(ii) would explain that a State or local government entity would not be exempt from paying rent when the facility is being used for commercial purposes or when the principal source of revenue is generated from customer use charges. These requirements are consistent with existing § 2804.16(a).

Under new paragraph (b)(2)(iii), a State or local government entity would not be exempt from rent if it charges rent to the United States Government for occupancy within an exempt facility (above routine operation and maintenance costs). Currently, the BLM and other Federal agencies are often charged rent to occupy space in another governmental (State or local

Section 2866.15 Under what circumstances may the BLM waive or reduce my rent?

Proposed § 2866.15 would include rental reduction or waiver provisions that would apply specifically to the communications uses program.

Under proposed paragraph (a) of this section, the BLM could waive or reduce rent for holders that are licensed by the FCC as non-commercial and educational broadcasters.

Under proposed paragraph (b) of this section, the BLM could waive or reduce rent for amateur radio clubs that provide a benefit to the general public or to the programs of the Secretary, for verified nonprofit organizations, or for entities that can demonstrate undue hardship and public interest. A holder could request a waiver or reduction in rent under proposed § 2806.15(b)(5)

al broadcasters.

Paragraph (c) of this section would describe when the BLM could not waive or reduce rent. These exceptions include when an organization operates for the benefit of its members; when any portion of the authorized facility is being used for commercial purposes; when the holder is charging the United States to occupy a facility; and when a holder charges fees beyond reasonable operation and maintenance for the occupants whose use is normally exempt or waived by the BLM. This provision would be consistent with proposed § 2866.14(b)(2).

Paragraph (d) of this section would describe when the BLM would revoke a holder's waiver of rent. Under paragraph (d) of this section, the BLM would revoke a holder's waiver if it determines that the authorization holder no longer meets the criteria for a waiver.

This proposed section would provide several additional ways by which the BLM could waive the rent of users who provide a public benefit and are not operating solely to make a profit. This proposed section would streamline our processes by demonstrating to the public when rent could be waived or reduced and by reducing the need for the BLM to further analyze a request.

Section 2866.23 How will the BLM calculate my rent for linear rights-of-way for Communications Uses?

d for the BLM to further analyze a request.

Section 2866.23 How will the BLM calculate my rent for linear rights-of-way for Communications Uses?

Proposed § 2866.23 is based on existing § 2806.23 and would provide some additional clarification that linear communications uses, such as for fiber optic and telephone cable, would be charged rent using the linear ROW rent schedule found in § 2806.23. The communications uses rent schedule is specific to small areas, while the linear schedule is used for long and narrow ROWs, such as pipelines or power lines. Since a linear communications use is a long and narrow facility, the linear rent schedule is more appropriate.

Section 2866.30 What are the rents for Communications Uses?

While much of proposed part 2860 is based on sections of part 2800, which would remain as part of the proposed rule, the communications site rent provisions (proposed §§ 2866.30 through 2866.44) contain the provisions that would be moved from subpart 2806 to new subpart 2866. Changes from existing provisions are discussed in the following sections of this preamble.

Proposed § 2866.30 contains the provisions of existing § 2806.30. This proposed section describes how the BLM would assess annual rent for communications uses. Only the address for the BLM would be updated.

Section 2866.31 How will the BLM calculate rent for Communications Uses in the schedule?

Proposed § 2866.31 contains the provisions of existing § 2806.31 and there would be no substantive changes from existing requirements.

Section 2866.32 How does the BLM determine the population strata served for your facility?

Proposed § 2866.32 contains the provisions of existing § 2806.32 and there would be no substantive changes from existing requirements.

Section 2866.33 How will the BLM calculate the rent for a single use communication facility grant?

Proposed § 2866.33 contains the provisions of existing § 2806.33 and there would be no substantive changes from existing requirements

served for your facility?

Proposed § 2866.32 contains the provisions of existing § 2806.32 and there would be no substantive changes from existing requirements.

Section 2866.33 How will the BLM calculate the rent for a single use communication facility grant?

Proposed § 2866.33 contains the provisions of existing § 2806.33 and there would be no substantive changes from existing requirements.

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

Proposed § 2866.34 contains the provisions of existing § 2806.34, and there would be no substantive changes from existing requirements.

Section 2866.35 How will the BLM calculate rent for private mobile radio service (PMRS), internal microwave, and “other” category uses?

Proposed § 2866.35 contains the provisions of existing § 2806.35, and there would be no substantive changes from existing requirements.

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

Proposed § 2866.36 contains the provisions of existing § 2806.36, and there would be no substantive changes from existing requirements.

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

Proposed § 2866.37 contains the provisions of existing § 2806.37, and there would be no substantive changes from existing requirements.

Section 2866.38 Can I combine multiple grants for facilities located at one site into a single grant?

Proposed § 2866.38 contains the provisions of existing § 2806.38 and would now require submittal of an SF 299 for BLM authorization to combine facilities into a single grant

.37 contains the provisions of existing § 2806.37, and there would be no substantive changes from existing requirements.

Section 2866.38 Can I combine multiple grants for facilities located at one site into a single grant?

Proposed § 2866.38 contains the provisions of existing § 2806.38 and would now require submittal of an SF 299 for BLM authorization to combine facilities into a single grant.

Section 2866.39 How will the BLM calculate rent for a grant for a facility manager's use?

Proposed § 2866.39 contains the provisions of existing § 2806.39, and there would be no substantive changes from existing requirements.

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

Proposed § 2866.40 contains the provisions of existing § 2806.40, and there would be no substantive changes from existing requirements. The BLM considers “ancillary” communication facilities to be those used solely for the purpose of internal communications.

Section 2866.41 How will the BLM calculate rent for communications facilities ancillary to a linear grant or other use authorization?

Proposed § 2866.41 contains the provisions of existing § 2806.41, and there would be no substantive changes from existing requirements.

Section 2866.42 How will the BLM calculate rent for Communications Uses within a federally owned communications facility?

Proposed § 2866.42 contains the provisions of existing § 2806.42, and there would be no substantive changes from existing requirements.

Section 2866.43 How does the BLM calculate rent for passive reflectors and local exchange networks?

Proposed § 2866.43 contains the provisions of existing § 2806.43, except that the definitions for “passive reflector” and “local exchange network” have been added to proposed § 2861.5 instead

provisions of existing § 2806.42, and there would be no substantive changes from existing requirements.

Section 2866.43 How does the BLM calculate rent for passive reflectors and local exchange networks?

Section 2866.44 How will the BLM calculate rent for a facility owner's or facility manager's grant which authorizes Communications Uses?

Proposed § 2866.44 contains the provisions of existing § 2806.44, and there would be no substantive changes from existing requirements.

Subpart 2868—Communications Uses Trespass

Section 2868.10 What is a Communications Uses trespass?

Proposed § 2868.10 is based on § 2808.10 but would provide for additional communications uses-specific circumstances that the BLM considers trespass. The intent of this section is to define a trespass so that facility owners and users understand how best to avoid unauthorized use.

Paragraph (a) would state that adding to or altering from the communications facilities described in the authorization without approval from the BLM would be a trespass.

Paragraph (b) of this section would state that facility owners who permit communications uses of other users by allowing them to sublease any portion of their facilities without approval would be considered a trespass.

Paragraph (c) would explain that natural structures, such as trees and rocks, may not be used to house or support equipment without the BLM's prior approval, and that doing so constitutes trespass. Using trees and rocks leads to unacceptable resource damage and is not a sustainable practice.

All the provisions in this section have been a part of BLM policy for years, but it became clear that there was some confusion by users as to exactly what the BLM considered trespass

may not be used to house or support equipment without the BLM's prior approval, and that doing so constitutes trespass. Using trees and rocks leads to unacceptable resource damage and is not a sustainable practice.

All the provisions in this section have been a part of BLM policy for years, but it became clear that there was some confusion by users as to exactly what the BLM considered trespass. The BLM believes that publishing these provisions as regulations would lead to a reduction in unauthorized use.

43 CFR Part 2880 Rights-of-Way Under the Mineral Leasing Act

The MLA requires that the applicant reimburse the United States for administrative and other costs incurred in processing the application. The BLM refers to such costs as “actual costs” and defines that term to include the financial resources the BLM expends in processing and monitoring ROW activities under the MLA, including the direct and indirect costs, exclusive of management overhead costs.

Section 28 of the MLA (30 U.S.C. 185( l )) requires applicants for either MLA pipeline ROWs or temporary use permit (TUPs) to reimburse the United States for administrative and other costs incurred in processing applications and monitoring the construction, operation, maintenance, and termination of any pipeline and related facilities.

The MLA does not limit or qualify the actual cost requirement, nor does it list any factors that the BLM may consider when determining reimbursable costs. The BLM bases actual cost information on Federal accounting and reporting systems. The BLM is proposing changes to part 2880 to provide consistency with the general ROW regulations of part 2800.

Subpart 2881—General Information

Section 2881.2 What is the objective of the BLM's right-of-way program?

The proposed rule would add the words “wherever practical” to the objective described in § 2881.2(c). This proposed change would be consistent with proposed § 2801.2(c). For a more detailed discussion, please see the preamble discussion for § 2801.2(c)

eneral ROW regulations of part 2800.

Subpart 2881—General Information

Section 2881.2 What is the objective of the BLM's right-of-way program?

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