[Federal Register: April 22, 2005 (Volume 70, Number 77)]
[Rules and Regulations]
[Page 20969-21091]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ap05-10]
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Part II
Department of the Interior
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Bureau of Land Management
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43 CFR Part 2800, et al.
Rights-of-Way, Principles and Procedures; Rights-of-Way Under the
Federal Land Policy and Management Act and the Mineral Leasing Act;
Final Rule
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 2800, 2810, 2880, 2920, 9230, and 9260
[WO 350 05 1430 PN]
RIN 1004-AC74
Rights-of-Way, Principles and Procedures; Rights-of-Way Under the
Federal Land Policy and Management Act and the Mineral Leasing Act
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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The Bureau of Land Management (BLM) is amending its regulations
governing rights-of-way issued under both the Federal Land Policy and
Management Act (FLPMA) and the Mineral Leasing Act (MLA). This final
rule revises BLM cost recovery (processing and monitoring fee) policies
and procedures for issuing right-of-way grants and adjusts cost
recovery fees to take into account cost increases since the previous
regulations became effective in August 1987. The rule also eliminates
automatic exemptions from cost recovery fees for Federal agencies,
except for those agencies and projects exempted by law. It establishes
policies related to paying rent in advance and adds a financial penalty
for paying rents late and allows for automatic adjustment to cost
recovery fees based on an economic indicator. This final rule also
clarifies how BLM applies the rent schedules for communication site
rights-of-way and reorganizes the regulations in a manner similar to
the sequence in which BLM takes action on applications and monitors
issued grants.
DATES: Effective Date: This final rule is effective June 21, 2005.
FOR FURTHER INFORMATION CONTACT: Bil Weigand at (208) 373-3862, or Ian
Senio at (202) 452-5049, or write to Director (630), Bureau of Land
Management, Eastern States Office, 7450 Boston Boulevard, Springfield,
Virginia 22153, Attention: RIN 1004-AC 74.
Persons who use a telecommunications device for the deaf may
contact these persons through the Federal Information Relay Service at
1-800-877-8339 24 hours a day, seven days a week.
SUPPLEMENTARY INFORMATION:
I. Background
II. Final Rule as Adopted and Response to Comment
III. Procedural Matters
I. Background
BLM published the proposed rule in the Federal Register on June 15,
1999 (see 64 FR 32106) for a 120-day comment period ending on October
13, 1999. As a result of public requests for extensions of the comment
period, on October 13, 1999, we extended the public comment period for
30 days ending on November 12, 1999. We received 63 comment letters on
the proposed rule. We address public comments in the section-by-section
discussion of this preamble.
In these regulations we use the terms ``previous regulations'' and
``final regulations.'' ``Previous regulations'' refers to the
regulations in effect prior to June 21, 2005. ``Final regulations''
means the regulations in this final rule. This final rule will replace
the regulations in parts 2800 and 2880 of the October 2004 edition of
Title 43 of the Code of Federal Regulations.
General Information About BLM Right-of-Way Grants Basis and Purpose of
These Regulations
Each year, thousands of individuals and companies apply to BLM to
obtain a right-of-way grant on public lands. A right-of-way grant is an
authorization to use a specific piece of public land for a certain
project, such as roads, pipelines, transmission lines, and
communication sites. The grant authorizes a specific use of the land
for a specific period of time. The term ``grant'' is defined in the
definitions sections in both parts of this rule. The definition of
``grant'' in part 2800 applies to grants authorized by Title V of
FLPMA, 43 U.S.C. 1761, and the definition in part 2880 applies to
grants authorized by the MLA at 30 U.S.C. 185. Generally, BLM issues a
right-of-way grant for a term commensurate with the life of the
project. Typically, BLM issues grants with 30-year terms, and most can
be renewed. This final rule covers FLPMA grants for rights-of-way that
cross public lands and MLA grants for rights-of-way that cross Federal
lands. We cover general provisions for right-of-way grants in subparts
2801 and 2881 of this final rule.
BLM places a high priority on working with applicants on proposed
rights-of-way to provide for the protection of resource values and to
process applications timely. Careful advance planning with BLM
personnel is strongly encouraged. If we know about your plans early, we
can work with you to tailor your project to avoid many problems and
costly delays later in the process.
If you are not familiar with our right-of-way application process
or local BLM jurisdictions, the best place to start is by contacting a
BLM State Office listed in our regulations at 43 CFR 1821.10. Please
note that each state office oversees a number of field offices.
Depending on your project, you may be working primarily with personnel
at a BLM field office.
As a general rule, you need a right-of-way grant whenever you plan
to build a right-of-way facility on public lands. Some examples of land
uses which require a right-of-way grant include: transmission lines,
communication sites, roads, highways, trails, telephone lines, canals,
flumes, pipelines, and reservoirs.
You do not need a right-of-way grant for ``casual use'' activities.
Examples of casual use include driving vehicles over existing roads,
sampling, surveying, marking routes, collecting data to prepare an
application for a right-of-way, and performing certain activities that
ordinarily result in no, or negligible, disturbance of the public lands
or resources. ``Casual use'' is defined in sections 2801.5 and 2881.5
and is addressed in sections 2804.29 and 2884.25 of this final rule. We
encourage you to contact BLM and discuss your planned activity before
assuming your use is casual. BLM can then make a judgment based on your
particular activity.
Steps In Applying for a Right-of-Way
(A) Contact the BLM office having management responsibility for the
land where you need the right-of-way.
(B) Arrange a preapplication meeting with the field office manager
or appropriate staff. During this meeting, participants will jointly
review the application requirements and Standard Form (SF) 299,
Application for Transportation and Utility Systems and Facilities on
Federal Lands, to determine what information BLM needs. If you contact
us ahead of time to set up the meeting, we can often arrange to hold
the meeting at the site of your proposed use.
(C) When you have all the information, bring or mail the
application, along with the nonrefundable application processing fee,
to the appropriate BLM office.
This final rule covers the application process for FLPMA right-of-
way grants in subparts 2803 and 2804, and the application process for
MLA grants in subparts 2883 and 2884.
Preapplication Meeting
The preapplication meeting is an important part of the process for
both
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you and BLM. The meeting provides the opportunity for you to fully
discuss and describe your proposal in detail and provides an
opportunity for BLM to fully explain processing requirements. The
preapplication meeting may also cover fees, safety, work schedules, and
other items. This meeting has the potential to save both you and BLM
time and expense. For example, in FLPMA, Congress directed that
``rights-of-way in common'' (common use of a right-of-way area by
multiple grant holders) be required, to the extent practical, in order
to minimize adverse environmental impacts and the proliferation of
separate rights-of-way. This is accomplished through a system of
designated right-of-way corridors and co-locating communication uses on
existing towers and within multi-occupancy buildings when feasible.
During the preapplication meeting, BLM staff may examine the proposed
right-of-way use to see if it would fit in an existing corridor or in
an existing communication facility. Sections 2804.10 and 2884.10 of
this final rule address preapplication meetings.
Application forms are available at every BLM office and on the
Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.blm.gov/nhp/what/lands/realty/forms/299/index.html. BLM
wants to make the application process as easy as possible. Accordingly,
the application form (SF-299) requests a minimum amount of information.
Even so, incomplete information is often the reason BLM cannot process
your application quickly.
To avoid problems, you should review the form prior to your
preapplication meeting and, if possible, complete it before or during
the preapplication meeting with BLM. Be sure to bring any information
that you believe BLM would find useful during this session. For
example, item 8 requests a map of the project area. You may already
have a survey or other adequate map that will satisfy this requirement.
You should arrange for your preapplication meeting well in advance
of when you would like to start work on the project. Processing time
for an average grant is 60 to 90 days. However, grants for complex
projects can take much longer to process. Try to contact BLM as soon as
possible. The field office manager and staff are ready to provide
information, advice, and assistance to help you prepare your
application.
Costs
Both FLPMA (43 U.S.C. 1764(g)) and the Mineral Leasing Act (30
U.S.C. 185(l)) authorize BLM to charge processing fees, monitoring
fees, and rent.
Processing Fees. This cost recovery charge reimburses the United
States in advance for the expected administrative and other costs we
incur in processing the application. You must pay processing fees when
you submit the written application. BLM will use the information
presented during the preapplication meeting to estimate the application
processing fee. Subparts 2804 and 2884 of this final rule address
processing fees.
Monitoring Fees. This cost recovery charge is a nonrefundable fee
to reimburse the United States for the cost of monitoring compliance
with the terms and conditions of the right-of-way grant, including your
obligation to protect and rehabilitate the lands covered by the right-
of-way. BLM will monitor your construction, operation, and maintenance
of the right-of-way and, when the time comes, the shutdown of your
activities and the termination of the right-of-way grant. Subparts 2805
and 2885 of this final rule address monitoring fees.
Rents. This is a charge for locating your right-of-way facility on
public or Federal lands. It is payable (for a specified term) before we
issue the grant and is based on the fair market value of the rights we
authorize. We usually establish the rental for linear and communication
sites on public lands via two separate administrative schedules. Based
roughly on land values in the project area, these schedules are
adjusted annually using an economic index. In some cases, the rental is
established by an appraisal. Subparts 2806 and 2885 of this final rule
address these schedules and other rent issues.
Exemptions, waivers, or reductions in the processing, monitoring,
or rental fees may apply to your application and BLM officials can
explain these during the preapplication meeting. Subparts 2804, 2806,
2884, and 2885 of this final rule cover these issues.
Temporary Use Permits and Short Term Grants
All activities associated with the construction, operation,
maintenance, and termination of your right-of-way grant must be within
the specified limits of the authorization. Item 7 on the right-of-way
application form is where you would identify your need for the use of
additional land during, for example, the construction phase of your
project. This additional land may be necessary for construction,
stockpiling of excess materials, equipment parking, and the like. If
you require additional land for your MLA grant, you will need to apply
for a temporary use permit (TUP). The MLA specifically authorizes BLM
to issue temporary use permits associated with MLA grants (see 30
U.S.C. 185(e)). BLM can grant TUPs for up to three years. If you
require additional land for your FLPMA grant, you will need to apply
for a short term grant for the additional lands. FLPMA specifically
authorizes temporary use of additional lands for FLPMA grants (see 43
U.S.C. 1764(a)). You should discuss TUP and short term right-of-way
grant needs with BLM during the preapplication meeting.
You can apply for a TUP or a short term grant at the same time you
apply for a right-of-way by describing the dimension and location of
the additional lands, and the term you need in item 7 of the standard
right-of-way application (SF-299), or by describing this information in
your Plan of Development, as part of your application. You may also
apply for a TUP or short term grant after BLM grants your right-of-way.
In this case, you must use a separate SF-299 form, and pay additional
processing and monitoring fees for BLM to process the TUP or short term
grant. This might require a separate environmental clearance and take
additional processing time. If there is a possibility that you may need
extra width or space, it is best to identify this in your original
right-of-way application. Part 2800 of this final rule addresses short
term grants and part 2880 of this final rule addresses TUPs.
Processing a Right-of-Way Application
Once you file an application with BLM, we will review it to make
sure you have included all necessary information. We will then review
and evaluate the application contents and determine the probable impact
of the activity on the social, cultural, economic, and physical
environment. BLM will also check to see if the proposed right-of-way is
consistent with the existing land use plan, and will check to see what
valid existing rights currently exist on the lands in question. BLM may
deny a right-of-way application for any number of reasons. A
preapplication meeting will reduce the possibility of BLM denying your
application. Sections 2804.26 and 2804.27 and sections 2884.23 and
2884.24 of this final rule address denials of grant or TUP
applications.
Appeals
If BLM denies your application, the official written decision will
give the reasons for the denial and information on how to file an
appeal. You also have appeal rights at many other decision
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points in this final rule. In general, if you are an applicant who is
adversely affected by a BLM written decision, you may appeal that
decision. Sections 2801.10 and 2881.10 of these regulations address
appeals.
Liability
As holder of a right-of-way grant you are responsible for damage or
injury to the United States and to third parties in connection with the
right-of-way use. You, as the holder, must also indemnify or hold the
United States harmless for third party liability, damages, or claims it
incurs. Sections 2807.12, 2807.13, 2886.13, and 2886.14 of this final
rule address liability issues.
Amendments to Your Grant
If you want to substantially change, improve, or add to a project
once you have a right-of-way grant, you must file an application with
BLM to amend your right-of-way grant. You must have BLM's prior written
approval before you make any substantial change in location or use
during construction, operation, or maintenance of the right-of-way. You
must contact the field office manager to determine if your proposed
changes require you to file an amendment. Sections 2807.20 and 2887.10
of this final rule cover grant amendments.
Monitoring Your Grant
BLM may inspect your project for compliance with the terms and
conditions of the grant and these regulations. In addition, under the
terms of the grant, BLM reserves the right of access onto the lands
covered by the right-of-way grant and, with reasonable notice to the
holder, the right of access and entry to any facility constructed in
connection with the project (see sections 2805.15 and 2885.13).
Subparts 2805 and 2885 of this final rule address grant monitoring.
Grant Suspension and Termination
A right-of-way holder may use the right-of-way for only those
purposes permitted in the grant. BLM may suspend or terminate a right-
of-way if the holder does not comply with the applicable laws,
regulations, terms, or conditions. BLM may require an immediate
temporary suspension of activities within a right-of-way to protect the
public health or safety or the environment. Sections 2807.16 through
2807.19 and sections 2886.16 through 2886.19 of this final rule address
suspensions and terminations.
Assignments
With BLM approval, you may transfer your right-of-way grant to
another person. A transfer of your grant is called an assignment. You
must submit to BLM, in writing, an application for the proposed
assignment, along with a nonrefundable payment. BLM will not recognize
an assignment to the new owner until we approve it in writing. BLM will
approve the assignment if doing so is in the public interest. Sections
2807.21 and 2887.11 of this final rule address assignments.
Trespass
If you use, occupy, or develop the public lands or their resources
without a required authorization or in a way that is beyond the scope
and terms and conditions of your authorization, you are considered to
be in trespass and you may be penalized. Subparts 2808 and 2888 of this
final rule address trespass.
Comparison Between FLPMA and MLA Grants
There are many similarities and differences between FLPMA and MLA
grants. The following chart describes FLPMA and MLA right-of-way
grants, but is not meant to be a complete description of all of the
nuances, similarities, and differences between FLPMA and MLA grants.
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Part 2800 Part 2880
Regulations FLPMA Regulations MLA
Grants Grants
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Agency Jurisdiction......... BLM issues grants on BLM issues grants on
public lands only all Federal lands
(43 U.S.C. 1761(a)). if the lands are
administered by two
or more Federal
agencies. BLM also
issues grants on
public lands (30
U.S.C. 185(c)).
Term........................ A reasonable term. A reasonable term
This can range from not to exceed 30
a term of one day years (30 U.S.C.
to a term in 185(n)).
perpetuity. (43
U.S.C. 1764(b)).
Rental...................... Fair market rental Fair market rental
value required from value required from
holders, but all holders (30
exceptions apply. U.S.C. 185(l)).
(43 U.S.C. 1764(g)).
Cost Reimbursement.......... Collect reasonable Collect actual costs
costs of processing of processing the
the application and application and
monitoring except monitoring except
from certain from certain
government agencies government agencies
and cooperative (43 CFR 2884.13).
cost share program
participants (43
U.S.C. 1764(g)).
Renewal..................... Renewable if it is Renewable if the
provided for in the grant is still
grant and being used for
satisfactory commercial
operation and operations and
maintenance exists satisfactory
(43 U.S.C. 1764(b)). operation and
maintenance exists
(30 U.S.C. 185(n).
Citizenship................. Individual applicant Individual applicant
not required to be required to be U.S.
U.S. citizen (43 citizen (30 U.S.C.
U.S.C. 1761(b)). 181, 185).
Width....................... Variable, depending Maximum 50-foot
on purpose of the permanent width,
authorization (43 plus the ground
U.S.C. 1764(a)). occupied by the
pipeline;
exceptions are
possible (30 U.S.C.
185(d)).
Assignments................. Assignable with Assignable with
BLM's approval (43 BLM's approval (30
U.S.C. 1764(c) and U.S.C. 185(r)).
(g)).
Temporary Use............... Authorize temporary Authorize temporary
work areas as part work areas with a
of a right-of-way Temporary Use
grant or with a Permit (30 U.S.C.
separate short-term 185(e)).
right-of-way grant
(43 U.S.C. 1764(a)).
Common Carrier Provision.... Does not apply to Applies to all
FLPMA grants. pipeline grants (30
U.S.C. 185(r)).
Application form............ BLM Standard Form BLM Standard Form
299 or APD or 299 or APD or
Sundry Notice for Sundry Notice for
off-lease oil and all off-lease
gas access roads. portions of oil and
gas pipelines.
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II. Final Rule as Adopted and Response to Comment
Part 2800--Rights-of-Way Under FLPMA
We received many comments on the proposed rule that addressed
issues common to both the part 2800 and part 2880 regulations. So as
not to be redundant, we address the comments only in the section they
pertain to in the part 2800 regulations. Comments that specifically
address the part 2880 regulations are discussed in that section of the
preamble.
Subpart 2801--General Information
This subpart contains material that pertains to all of part 2800
and several sections of part 2880. Part 2800 contains policies and
procedures related to right-of-way grants BLM issues under the Federal
Land Policy and Management Act and part 2880 to right-of-way grants and
temporary use permits BLM issues under the Mineral Leasing Act. More
specifically, subpart 2801 contains:
(A) An explanation of the objective of BLM's right-of-way program;
(B) Acronyms and definitions used in the regulations; and
(C) Information about which grants the regulations affect and which
they do not.
General Comments
Several commenters said that there is no up-to-date data to support
the need for increases in existing right-of-way fees or the creation of
new ones, and that BLM should prepare a baseline report and annual
reports thereafter to document the needed increases. They also said
that there have been significant technology increases, as well as staff
reorganizations, that have improved efficiencies that should reduce
costs. For a discussion of the justification for increasing cost
recovery fees, please see the proposed rule at 64 FR 32107 through
32111.
In 1995, BLM program experts analyzed a cross section of right-of-
way cases. This analysis showed that the cost of processing right-of-
way cases, including labor costs, had increased since 1986 at
approximately the same rate as the Implicit Price Deflator-Gross
Domestic Product (IPD-GDP). Therefore, the final rule adjusts costs
upward based on the IPD-GDP and allows for automatic adjustments based
on this indicator. Technological improvements and staff reorganizations
that have taken place recently may have yielded improved right-of-way
processes in many BLM offices. Since the processing categories in this
final rule are based on the time (hours) required to process an
application, this final rule takes into account increases in
efficiencies. We note, however, that the number of processing hours may
be increased by the increasingly complex resource issues BLM encounters
when processing grant applications which add to the amount of
coordination required to process applications. Increased public
involvement in the National Environmental Policy Act (NEPA) process
adds extra levels of analysis and review. Comments relating to BLM
creating new fees are misdirected since BLM is not proposing any new
fees in this rule (see previous subparts 2808 and 2883 and previous
sections 2803.1-2 and 2883.1-2).
We suggest that commenters who requested reports justifying the fee
increases refer to the preamble discussion in the proposed rule (64 FR
32107 and 32108). A 1995 audit of BLM's cost recovery efforts by the
Office of Inspector General (OIG) for the Department of the Interior
found BLM was not recovering all the costs of processing applications
and recommended that BLM revise its regulations to recover all
applicable costs. The audit estimated that BLM incurred about $640,000
in additional expense in excess of the fees collected in 1993. (This
shortfall comes to $213 per application, or $800,000 and $336
respectively when adjusted for the change in IPD-GDP.) BLM is following
the OIG's suggestions by increasing the costs for processing and
monitoring right-of-way applications and providing for future
adjustments to the costs based on economic indicators to reflect the
costs of inflation. BLM also prepares yearly reports, some to meet
requirements imposed by Congress in the Mineral Leasing Act, that
discuss the relative numbers and types of cases that we process each
year. BLM publishes this data annually in a statistical report that you
can find on the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.blm.gov/nhp/browse.htm#annual_reports.
While these reports alone do not justify increasing cost
recovery fees, they show that the number of right-of-way authorizations
BLM grants and administers continues to increase. As such, the monetary
losses projected by the OIG in 1995 continue to increase each year. We
did not amend the final rule as a result of these comments.
Several commenters from the oil and gas industry suggested that BLM
should not increase processing fees because the bonuses, rents, and
royalties industry already pays to the government should cover BLM's
right-of-way processing costs. We address this comment here because it
could apply to grants issued under either FLPMA or the MLA, as some oil
and gas lessees do hold FLPMA rights-of-way to assist in transporting
product off-lease.
Congress authorized BLM to recover processing costs, and did so
fully aware that BLM was already collecting bonuses, rents, and
royalties. Congress is presumed to understand the state of the existing
law when it legislates. Bowen v. Massachusetts, 487 U.S. 879, 896
(1988).
In the MLA, Congress specified how mineral royalties and bonuses
are distributed to states and to the Treasury (30 U.S.C. 191), and this
distribution does not return funds to BLM to cover the costs of
processing right-of-way applications. However, as discussed in the
preamble to the proposed rule at 64 FR 32107, section 504(g) of FLPMA
and section 28(l) of the MLA authorize BLM also to collect the costs to
process right-of-way applications. Section 504(g) of FLPMA further
provides that the deposit of reimbursements for reasonable costs be
placed into a Treasury account to be appropriated to BLM for processing
applications.
Also, BLM charges processing fees to everyone who files an
application, except those specifically exempted by law or regulation,
pursuant to its authorities under the Independent Offices
Appropriations Act, as amended, 31 U.S.C. 9701 (IOAA); section 304(a)
of FLPMA; Office of Management and Budget Circular A-25; the Department
of the Interior Manual 346 DM 1.2 A; and case law (also see the
preamble to the proposed rule at 64 FR 32107 and Solicitor's Opinion M-
36987 (December 5, 1996)). Congress clearly intended for agencies to
recover processing costs in addition to bonuses, rents, and royalties.
The IOAA states that Federal agencies should be ``self-sustaining
to the extent possible,'' and authorizes agency heads to ``prescribe
regulations establishing the charge for a service or thing of value
provided by the agency.'' Section 304(a) of FLPMA specifically
authorizes the Secretary of the Interior to ``establish reasonable
filing and service fees and reasonable charges and commissions with
respect to applications and other documents relating to the public
lands.'' IOAA and FLPMA give BLM authority to charge fees for
processing applications, which we interpret to include amendments and
assignments.
OMB Circular A-25 sets forth a general policy that a user charge
will be assessed against each identifiable recipient for special
benefits derived from Federal activities beyond those received by the
general public. Departmental Manual 346 DM 1.2A
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requires (unless otherwise prohibited) that a charge, which recovers
the bureau's costs, be imposed for services which provide special
benefits or privileges above and beyond those which accrue to the
public at large.
A particularly relevant court ruling is Mississippi Power & Light
Co. v. United States Nuclear Regulatory Commission, 601 F.2d 223 (5th
Cir. 1979), cert. denied, 444 U.S. 102 (1980). The court upheld a
Nuclear Regulatory Commission (NRC) licensing fee schedule. The court
rejected the petitioners' argument that the work of the NRC benefitted
the general public solely and that the conferral of a license or permit
does not bestow upon the petitioners any special benefit whatsoever.
The court concluded: ``A license from the NRC is an absolute
prerequisite to operating a nuclear facility, and as such, is a benefit
`not shared by other members of society.' '' Likewise, a right-of-way
grant is a benefit not shared by other members of society. Therefore,
BLM charges applicants for processing their applications for grants
because they are seeking a benefit not shared by other members of
society.
The commenters' contention that BLM should not charge right-of-way
processing fees to the oil and gas industry because the industry
already pays bonuses, rentals, and royalties misses the point about
processing fees. Congress intends for agencies to be reimbursed for
processing costs when the agency action benefits an identifiable party.
BLM's processing of right-of-way applications benefits the applicant,
who will use the right-of-way to aid its operation. Bonuses, rentals,
and royalties are related to the use of the resource and are unrelated
to agency processing costs. Congress has provided for agencies to
collect both for the use of the resource and for the processing of
applications and other documents.
Some of these commenters further suggested that any regulations
pertaining to rights-of-way should be combined with existing oil and
gas regulations, onshore orders, and notices to lessees and that a
separate rulemaking is duplicative. We have decided not to combine this
rule with other oil and gas rules. We believe that since both the FLPMA
and MLA right-of-way programs are administered under BLM's lands and
realty program and because of the many similarities between the various
lands and realty regulations, both as a matter of policy and a matter
of process, BLM's right-of-way regulations should not be located in the
same part in 43 Code of Federal Regulations as BLM's oil and gas
regulations.
One commenter suggested that BLM should consider the benefits the
public receives from industry upgrading access roads and performing
special studies that benefit the public. Previous regulations allowed
BLM to reduce cost recovery fees to reflect both public benefits from
studies connected with processing an application and special services
to the public or a program of the Secretary provided by a project (see
previous sections 2808.5(b)(5) and (6). Like previous regulations, the
final rule contains provisions for FLPMA right-of-way applicants to pay
cost recovery fees that reflect the public service or public benefit
derived from a right-of-way grant or its processing (see final sections
2804.20 and 2804.21).
Several commenters said that the proposed automatic fee adjustments
appear to be a disincentive for future BLM process improvements. We
disagree with the commenters. The automatic fee adjustment provisions
in this final rule will not act as a disincentive to continuing our
process improvement efforts. Even after this rule becomes final, BLM
will continue to examine ways to improve processes. The automatic fee
adjustments are intended to increase fees based on an economic
indicator that reflects yearly increases in the cost of doing business.
We have included automatic fee adjustments because the cost to BLM of
going through rulemaking each time fees needed to be adjusted would be
prohibitive and inefficient. If during periodic review of the fee
structure we determine that the fees or fee structure need to be
revised, apart from applying the IPD-GDP, we will propose new
rulemaking.
Some commenters said that the fee increases were not legal since
they were really special use taxes that must be ``approved by Congress
and signed by the President.'' BLM does not agree with the commenter.
Clearly, both FLPMA and MLA give BLM authority to collect the
reasonable or actual costs of processing right-of-way applications (see
43 U.S.C. 1764(g) and 30 U.S.C. 185(l)). Neither statute imposes a
limitation on fee increases. Moreover, the Supreme Court has made clear
that agencies may charge for special benefits to identifiable
recipients, which is what BLM is doing in this rule. See National Cable
Television Association v. U.S., 415 U.S. 336, 341 (1973), and Federal
Power Commission v. New England Power, 415 U.S. 345, 349 (1973).
One commenter agreed with the proposal to automatically adjust fees
to keep pace with inflation. This provision remains in the final rule.
Some commenters thought that the IPD-GDP was not the appropriate
indicator for automatic increases in fees. They thought that the
Consumer Price Index would be a better economic indicator to use since,
due to streamlining, labor costs have decreased since 1987. We
disagree. As we stated in the proposed rule's preamble (see 64 FR
32109), we believe that the IPD-GDP is the correct economic indicator
on which to base these fee adjustments since the IPD-GDP more closely
reflects the relationship of labor to other costs than do other
economic indicators and most of BLM's processing and monitoring costs
are related to labor costs.
One commenter stated that BLM was attempting to recover costs in
excess of the shortfalls in cost recovery identified by the OIG in
1995, and that the new fees would be indexed annually to guarantee
additional income. Further, commenters said that BLM was only allowed
to recover reasonable or actual costs. We agree that BLM can only
charge reasonable or actual costs for processing right-of-way
applications. Final section 2804.14 of the FLPMA regulations requires
that you pay the United States the reasonable costs of processing your
application, and final section 2884.12 of the MLA regulations requires
that you pay the United States the actual costs of processing your
application.
We believe the commenter who stated that BLM was attempting to
recover more that its shortfall misunderstood the explanation in the
proposed rule. In 1995, the OIG sampled 75 of the approximately 3,000
right-of-way cases BLM processed in fiscal year 1993 and determined
that there was a shortfall in collected processing fees of $16,000 for
those 75 cases. The total estimated shortfall for the 3,000 cases
processed was thus at least $640,000 for that one year. The proposed
rule stated that the maximum fees that possibly could be generated by
the proposed regulations over and above fees already being collected,
was approximately $2.7 million annually (see 64 FR 32123). We
calculated that figure to show that even under the most extreme
circumstances this rule would not be considered economically
``significant'' under Executive Order 12866 (which defines
``significant'' as having an annual economic impact of $100 million or
more). The $2.7 million figure does not represent anticipated revenue,
but indicates the outside limit of the economic impact of the proposed
rule, over and above the fees already being
[[Page 20975]]
collected, if every right-of-way application, including those that were
exempted or reduced under previous regulations, were placed at the
highest fee category available. Therefore, the difference between
$640,000 and $2.7 million does not represent costs in excess of what
BLM needs to process grant applications. BLM anticipates that this rule
will, on an annual basis, generate additional revenue from processing
fees approximately equivalent to the $640,000 shortfall identified by
the OIG, corrected for inflation by application of the IPD-GDP.
One commenter said that BLM and the U.S. Forest Service (FS) should
adopt the same rules, procedures, and regulations to reduce application
costs and review times. We agree. BLM and the FS are working together
on parallel regulations to establish procedures that are consistent to
the extent possible for the collection of right-of-way processing and
monitoring fees (see 64 FR 66341 for the FS proposed rule).
A few commenters said that the difference between FLPMA and MLA
rights-of-way should be pointed out in the final rule since it is
confusing to the public and BLM. The basic processing steps, fee
determination process, and conditions for approval involved in both
types of applications are nearly identical. However, there are some
differences between the two types of applications and the two parts of
the rule, most of which result from distinctions in the statutory
authority for the two types of grants. The major differences between
the part 2800 and part 2880 regulations are explained in the table and
general discussion above.
A few commenters said that instead of the cost recovery fee in the
proposed rule, BLM should use a ``minimal impact flat fee'' similar to
that proposed by the FS for flowlines, roads and electric lines being
installed in a developing field. The FS proposed a ``minimum impact
category'' in their rule that would cover one-time authorizations for
the use of forest system lands for events such as recreation events,
weddings, or bike races or uses where more than 75 people participate
(see 64 FR 66341, 66344, and 66350). The BLM requested comments on the
need for such a category. Both agencies decided not to establish a
``minimal impact category'' in their final rules. Instead, in this
final rule BLM establishes a new processing and monitoring category for
all ROW actions where we spend more than one hour but less than eight
hours processing the application or monitoring the grant. The FS also
plans to issue a similar final rule.
R.S. 2477
Many commenters were concerned that the regulations would impact
rights associated with R.S. 2477 roads. One commenter said that before
the rule can be finalized, a Federal court must decide which roads are
available for rights-of-way as some may be owned by the county under
R.S. 2477. Similarly, another commenter said that BLM needs to make
sure we own the road before issuing a right-of-way grant. These final
regulations do not change the current policy of the Department of the
Interior for handling R.S. 2477 issues and apply only to public lands
(Part 2800) and Federal lands (Part 2880). Final section 2801.6 makes
clear that these regulations do not apply to valid claims under R.S.
2477.
Temporary Use Permits
Several commenters supported the continued use of temporary use
permits (TUPs). Some commenters from the oil and gas industry said that
we should not eliminate TUPs for FLPMA rights-of-way since the industry
needs them for testing and emergency situations. Other commenters said
that BLM only needs to be able to authorize the additional use of
public land outside a permanent right-of-way, no matter what you call
the authorization. We agree with the basic point of the last comment
and have so provided in this rule. Moreover, BLM believes there is
little difference between approving the use of public land using short
term right-of-way grants and approving the use of Federal land with
TUPs. Both authorizations require:
(A) The same application procedure;
(B) Compliance with NEPA and land use plans;
(C) Preparation of a decision; and
(D) Execution of an authorizing document.
BLM can authorize all associated uses with a FLPMA grant, whether
they are short or long term, and therefore TUPs are not needed. This is
consistent with the proposed rule (see 64 FR 32118).
One commenter said that BLM should authorize in a right-of-way
grant access roads, temporary landing sites, and lay down areas rather
than in a special use permit since these activities are an integral
part of the construction operations. We agree and the final rule is
consistent with this comment. The same commenter said that short-term
incidental activities, such as those short term construction activities
that would temporarily require additional width for a right-of-way, or
a temporary access road should be permitted for a term and with
stipulations, as a right-of-way, not as a special use, because they are
tied to a longer term use. We agree with the commenter. Under this
final rule, we will issue right-of-way grants under FLPMA with an
appropriate term and stipulations for all authorized uses associated
with a right-of-way, including short term construction and access
needs.
Section 2801.2 What Is the Objective of BLM's Right-of-Way Program?
This section is new to the final rule and explains it is BLM's
objective to grant rights-of-way to qualified individuals and business
or government entities, and to direct and control the use of rights-of-
way on public lands in a manner that:
(A) Protects the natural resources;
(B) Prevents unnecessary or undue degradation to public lands;
(C) Promotes the use of rights-of-way in common; and
(D) Coordinates, to the fullest extent possible, all BLM actions
under the regulations with state and local governments, interested
individuals, and appropriate quasi-public entities.
We inadvertently left the objectives section out of the proposed
rule, but this final section is consistent with previous section
2800.0-2. We added a similar provision to the part 2880 regulations
discussed later in this preamble.
Section 2801.5 What Acronyms and Terms Are Used in These Regulations?
This section contains the acronyms and defines the terms that are
used in these regulations. Paragraph (a) is new to the final rule and
contains acronyms that are frequently used in the final rule. We also
amended the definitions section in the final rule by adding several
terms, by deleting unnecessary terms, and by amending the definitions
of the terms we proposed.
Two terms not defined in the proposed or final regulations are
``suspension'' and ``termination.'' We discuss those terms here because
the public and BLM staff often inappropriately use the terms
interchangeably. The two terms have very different meanings.
Suspensions involve immediately curtailing activities and privileges
authorized under a grant for a specified period of time. Suspensions
may be ordered to protect public health, safety, or the environment.
Terminations, on the other hand, involve ending the term of a grant
because the grant has expired or is required by law to terminate, the
holder requests and BLM consents to the termination, or the holder has
not complied with laws, regulations, or any
[[Page 20976]]
terms and conditions of the grant, including abandonment.
Many comments related to redefining terms used in the proposed rule
or adding new terms to make the rule easier to understand.
In the final rule we added a definition of ``actual costs'' to mean
the financial measure of resources BLM expends in processing and
monitoring right-of-way grants including direct and indirect costs,
exclusive of management overhead. We added this definition because
``actual costs'' is one of the criteria spelled out in FLPMA that BLM
uses to assess whether costs are reasonable. The term is defined
similarly to previous section 2800.0-5(o).
One commenter asked that the final regulation define
``administrative costs of processing,'' as the phrase was vague and
subject to interpretation. In the final rule we do not use the phrase
``administrative cost of processing'' and therefore there is no need to
define the term.
The Forest Service recommended revising the definition of ``base
rent'' to read, in part, as follows:
Base rent means the initial dollar amount required of a facility
owner or a facility manager based on the highest value use in their
facility, as determined by the communications rent schedule and the
population of the community served. If the facility manager rental
rate or the facility owner's type of use rental rate is equal to or
greater than other assigned rental rates in that facility, then * *
*.
In the final rule we moved the definition of ``base rent'' from
proposed section 2806.5 to this section. We also modified the final
definition to make it easier to understand that when a communication
site facility manager's or facility owner's scheduled rent is equal to
the rent for the highest use from the communication use rent schedule,
the facility manager or facility owner's use determines the base rent.
When the value of any other use in the communication site facility
exceeds that of the facility manager or facility owner's use, that
other use determines the base rent. Although we did not copy the FS
proposed language exactly, we followed the suggested meaning of the FS
comment in the final definition.
In the final rule we amended the definition of ``casual use'' to
mean ``activities ordinarily resulting in no or negligible disturbance
of the public lands, resources, or improvements.'' We also replaced the
example proposed with ``Surveying, marking routes, and collecting data
to use to prepare grant applications.'' We believe the final rule's
definition of ``casual use'' is a more accurate and useful description
because it recognizes that casual use may cause no disturbance and
because it gives examples that are more useful than that provided in
the proposed rule.
In the final rule we moved the definition of ``commercial purpose
or activity'' from proposed section 2806.5 to this section and modified
it to make it easier to understand. In the final rule, we use the term
to describe the situation where a holder attempts to produce a profit
by allowing the use of its facilities by an additional user. Under
these circumstances BLM may assess an appropriate rent for such
commercial activities. The holder's use may not otherwise be subject to
rent charges under BLM's rental provisions.
In the final rule we moved the definition of ``communication use
rent schedule'' from proposed section 2806.5 to this section and
modified it to make it easier to determine where a use will fit into
the schedule. The final rule also clearly states that the type of use
identified on an FCC license does not supersede either the definition
found in this subpart or the procedures for calculating rent in subpart
2806. The definitions in this rule are different from those in FCC's
rules because our reason for defining them is so we can determine the
correct rent for the use of a right-of-way, whereas the FCC regulations
define them for entirely different reasons, such as licensing
requirements. Therefore, our definitions continue to focus on
determining the type of use. However, there may be circumstances where
BLM cannot accurately determine the type of communication use and
therefore cannot determine the proper category in the rent schedule for
the use. Should this occur, BLM may consult with the FCC to help us
determine the use, based on our definitions, and therefore determine
where the use would fit into the communication use rent schedule.
Several commenters said BLM should change its definition of
``commercial mobile radio service'' (CMRS) (contained in
``communication use rent schedule) because it differs significantly
from the regulatory classifications established by Congress and the
FCC. They said BLM's definition of CMRS did not identify cellular,
personal communication service, or enhanced specialized mobile radio
services as specific types of commercial mobile radio services, but
instead focused on communication services to individual customers and
ancillary communication equipment for operating, maintaining, or
monitoring use. One of the commenters suggested that we use the FCC's
definition of CMRS. Another commenter said that the definition
contravened section 6002(b) of the Omnibus Budget Reconciliation Act of
1993, which mandated that similar mobile services be subject to
consistent regulatory definition and urged BLM to adopt FCC definitions
in its final rule. We disagree with the commenters. BLM and the FCC
have different definitions for the terms because we use the terms for
different purposes. The FCC issues licenses for different
classifications of primary uses. BLM defines different types of
communication uses for rental calculation purposes only.
In the final rule we moved all communication site related
definitions from proposed section 2806.5 to this section. For example,
we moved the definition of ``customer'' from proposed section 2806.5 to
this section. We also modified the definition to make it clear that:
(A) BLM includes private or internal communication uses located
in a holder's facility as customer uses; and
(B) Customer uses are not included in the amount of rent owed by
a facility owner, facility manager, or tenant unless the facility
owner or facility manager is operating the facility for a commercial
purpose. This more accurately describes how we charge for customer
uses than the proposal and is consistent with existing policy and
practice.
Several commenters thought the definition of ``designated right-of-
way corridor'' should be deleted because it is not compatible with oil
and gas field operational practices. We address this comment here
because right-of-way corridors, even those for oil and gas operations,
are designated under FLPMA. The commenters said that the spider web of
flowlines, gathering lines and roads on specific leases cannot be
predicted and would not be conducive to corridors. We retained the
definition in the final rule because of the advantages to locating
major utility rights-of-way in corridors on public land and because
section 503 of FLPMA requires that we use rights-of-way in common to
the extent practical. Further, the final rule does not require that
rights-of-way for all oil and gas field operations be located in a
designated right-of-way corridor. Designation of a right-of-way
corridor is a land use planning decision that BLM makes only after
fully considering the impacts on other existing and planned land uses,
including oil and gas development.
We made minor wording changes to the definition of ``facility'' in
the final rule to make it easier to understand. The definition makes it
clear that ``facility'' includes the improvements or structures on a
right-of-way owned or controlled by the grant or lease holder.
[[Page 20977]]
In the final rule we moved the definition of ``facility manager''
from proposed section 2806.5 to this section. The final definition
makes clear that a communication site facility manager does not own or
operate its own equipment, but leases space to tenants and customers in
a communication facility. We also moved the ``facility owner''
definition from proposed section 2806.5 to this section and reworded it
to be clear that a ``facility owner'' owns and operates its own
communication equipment in a facility and may or may not lease space to
other users in the communication facility. Both definitions are
consistent with current policy and practice.
Several commenters said that the definition of ``field
examination'' should make it clear that the BLM staff person making a
field trip should look at as many rights-of-way and Applications for
Permits to Drill as possible in one trip to make the trip as efficient
as possible. We agree. Combining several field examinations or other
inspections into one field trip is BLM's routine practice. However, we
deleted the proposed definition of ``field examination'' from the final
rule because we no longer use the term and it is not part of the
criteria for determining a cost recovery category in this final rule.
For further information, please see the preamble discussion of final
section 2804.14.
Several commenters asked what ``reasonable costs'' are and said
that BLM should be responsible for paying for NEPA and other studies
since it is our responsibility under the law. We use the phrase
``reasonable costs'' in sections 2804.14, 2804.20, and 2805.16. The
final rule defines this phrase in section 2801.5, and final section
2804.20 lists the factors from FLPMA that BLM will use in its
determination of the reasonable costs for Processing Category 6 or
Monitoring Category 6.
We reworded the definition of ``grant'' to state that a grant is
any authorization or instrument (e.g., easements, leases, licenses, or
permits) issued under Title V of FLPMA, and that ``grant'' includes
those authorizations and instruments BLM and its predecessors issued
for like purposes prior to the passage of FLPMA under now expired
authorities. Therefore, the term ``grant'' includes communications use
leases. We use the term ``lease'' for communication site purposes
because of the nature of the rights we authorize to the holder of the
authorization. Communication use leases allow holders to sublease space
to tenants and customers without first obtaining BLM approval. A
typical BLM right-of-way grant does not allow holders to sublease.
We received many comments related to the definition of ``hazardous
material.'' Many commenters said that the Environmental Protection
Agency (EPA) has an established definition of ``hazardous substance''
and that EPA regulates hazardous substances and BLM therefore need not.
Some commenters said the definition was overly broad, inconsistent with
other regulatory authorities and should be deleted. Several commenters
said that the definitions ``hazardous material,'' ``discharge,'' and
``release'' should all be deleted from the rule and that the rule is
expanding BLM's jurisdiction beyond what is required by law. Some
commenters said the rule changes statutory requirements and regulations
on hazardous materials. The commenters said the rule should not weaken
or dilute the Resource Conservation and Recovery Act (RCRA) or the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) or eliminate the exemptions provided the oil and gas industry
in those statutes. We have not changed these definitions as a result of
these comments. The final rule includes these definitions to make clear
the regulations addressing use and management of hazardous materials on
Federal and public lands. As noted in the proposed rule's preamble (see
64 FR 32118), right-of-way holders use, store, and transport various
hazardous materials on and across public lands. BLM seeks to ensure
that those using BLM lands are responsible for damage to health,
property, and the environment incurred while using and occupying a
right-of-way and that they understand which materials we consider to be
hazardous.
The terms ``discharge'' and ``release'' take their meanings from
the Clean Water Act (33 U.S.C. 1321(a)(2)) and CERCLA (42 U.S.C.
9601(22)), respectively. The terms broadly address the range of
circumstances under which, during the use of a right-of-way, a chemical
substance may enter the environment.
The term ``hazardous material'' is also intentionally broad and
includes, among others:
(A) Hazardous substances as defined by CERCLA (see 42 U.S.C.
9601(14);
(B) Regulated substances managed in tanks as defined by the
Resource Conservation and Recovery Act (RCRA) (see 42 U.S.C. 6991 et
seq.);
(C) Oil, as defined by the Oil Pollution Act (see 33 U.S.C.
2701(23)), and the Clean Water Act (see 33 U.S.C. 1321(a)); and
(D) Other substances defined and regulated as ``hazardous'' under
applicable Federal, state, tribal, or local law.
We defined ``hazardous material'' by cross-referencing other laws
to ensure that all pollutants, contaminants, and hazardous substances,
including oil and petroleum products, fall within the definition.
Although some commenters stated that BLM should specify hazardous
substances of concern, and should not incorporate into its rule
definitions taken from other laws, such an approach would be
impracticable in light of the large number and types of hazardous
substances that can cause harm to health, property, or the environment.
In addition, numerous laws, including CERCLA, define ``hazardous
substance'' by incorporating definitions found in other laws. (See
section 101(14) of CERCLA, 42 U.S.C. 9601(14), and section 1001(23) of
the Oil Pollution Act, 33 U.S.C. 2701(23).) Because numerous
jurisdictions have adopted definitions of hazardous substances that, in
many respects, differ from those in CERCLA, RCRA, the Oil Pollution
Act, and the Clean Water Act, BLM included within its definition a
catch-all for substances defined as hazardous under Federal, state,
tribal, or local law. Rather than cause confusion and inconsistency, as
claimed by some commenters, BLM believes the definition fosters
consistency in the meaning and application of key terms and provides
clear guidance to users of their obligations and liability under these
regulations.
BLM disagrees that, by incorporating definitions of environmental
terms taken from other laws, we are attempting to expand our authority
into areas administered by EPA and state regulatory authorities under
environmental laws. BLM is not seeking to supplant EPA and state
authorities to regulate environmental laws on Federal and public lands.
To the extent that EPA and the state have such authority, nothing in
this rule affects it. These definitions apply only to BLM's right-of-
way regulations, which seek to ensure that if someone using and
occupying a right-of-way issued under these regulations causes harm to
health, property, or the environment, the cost of remedying such harm
falls on the grant holder, rather than on the public.
Several commenters stated that BLM should delete the term
``hazardous material'' and replace it with ``hazardous substance'' as
defined in CERCLA, because using the term ``hazardous material'' could
weaken or dilute the exemption granted to the oil and gas industry in
CERCLA and RCRA. The commenters misunderstand the purpose of the rule.
Nothing in the rule
[[Page 20978]]
affects the exclusion of petroleum from the definition of ``hazardous
substance'' under section 101(14) of CERCLA (42 U.S.C. 9601(14)). BLM
is not seeking through this rule to enforce CERCLA on Federal or public
lands or to regulate users' management of waste under RCRA. Rather, BLM
is issuing these regulations to ensure that, as a manager of public
lands, it places the risk of harm on the grant holder and not on the
public. In this context, the definitions are used in these regulations
only as a way to identify which materials we consider to be hazardous
and which, therefore, may impact Federal or public lands.
One commenter said that the final rule should define ``holder'' as
it is defined in the law, to exclude Federal agencies. The commenter is
correct that FLPMA does not include Federal agencies in its definition
of holders. However, section 507 of FLPMA clearly provides for rights-
of-way for the use of any department or agency of the United States.
Title V of FLPMA also applies to any Federal agency that would apply to
construct an oil or gas pipeline on public lands. Therefore, we believe
it necessary to include Federal agencies in the definition of holders.
In the final rule we added a definition of ``management overhead
costs'' to mean the costs associated with the BLM directorate,
including all BLM State Directors and the entire Washington Office
staff, except where a State Director or Washington Office staff member
is required to perform work on a specific right-of-way case. We added
the definition because we use the phrase in the definition of actual
costs and in final section 2804.20.
In the final rule we also added a definition of ``monetary value of
the rights and privileges you seek'' to mean the objective value of
what the right-of-way grant is worth in financial terms to the
applicant. We added this definition because ``monetary value'' is one
of the criteria spelled out in FLPMA that BLM uses to assess whether
costs are reasonable and we use the term in final section 2804.20. The
meaning of the term is the same as the definition in previous section
2800.0-5(p).
Several commenters said the final rule should define ``monitoring''
in terms of requirements and time frames and that monitoring should not
be considered an annual or recurring cost. Another commenter asked if
the determination of compliance was part of the ``administrative costs
of (renewal) compliance,'' or part of day-to-day monitoring activities.
The second comment appears to be asking if compliance inspections prior
to renewal of a grant are part of day-to-day monitoring or part of the
cost of processing a renewal. In the final rule we added a definition
of monitoring, which includes those actions BLM performs to ensure
compliance with the terms, conditions, and stipulations of the grant.
Monitoring occurs primarily during the construction and
rehabilitation phases of a project. During grant application
processing, BLM will estimate the hours we will need to monitor the
construction and rehabilitation of a Monitoring Category 1 through 4
application, and we will collect the applicable fees when the applicant
accepts the terms, conditions, and stipulations of a grant. For a
Category 1 through 4 application, compliance inspections for a renewal
are part of the cost of processing the renewal. Monitoring Category 1
through 4 fees are one-time fees. Monitoring for Category 5 Master
Agreements and Category 6 projects are in accordance with the terms of
the agreement and may include monitoring during the life of the grant
through the termination phase of the project.
In the final rule we deleted the definition of ``project'' because
there is a common understanding of the term as it is used in this rule.
We also replaced the proposed rule's definition of ``public land''
with a definition more closely following section 103(e) of FLPMA.
In the proposed rule we omitted the definition of ``reasonable
costs.'' In the final rule we added the definition of the term, citing
the definition in section 304(b) of FLPMA, which is consistent with
existing policy and practice.
In the final rule we moved the definition of ``site'' from proposed
section 2806.5 to this section.
One commenter supported using the term ``site,'' but recommended a
broader definition that would include a geographic area that can
accommodate multiple communication facilities under the control of one
or more facility managers supporting a combination of recognized
communications uses. BLM did not change the definition in response to
this comment because we believe the commenter's suggestion is actually
more restrictive than the proposed definition. A site is not limited to
communication facilities and may contain several other types of right-
of-way facilities and uses besides communications facilities.
One commenter said that the definition of ``substantial deviation''
absorbs rights that a Federal agency may already have in an existing
grant. As an example, the commenter said that in utility rights-of-way
it is common practice for the grant to include terms that allow the
holder to construct, modify, and maintain the facilities. The commenter
said that if Federal agencies want to do something that is beyond the
scope of the grant, they should contact BLM. In the proposed rule BLM
provided an explanation of ``substantial deviation'' that was not
spelled out in previous regulations (see proposed section 2807.11). We
moved the description of substantial deviation from proposed section
2807.11 to final section 2801.5. BLM agrees with the commenter that
when an activity is beyond the scope of what is authorized in a grant,
the holder should contact BLM before engaging in the activity. We
reworded the definition of ``substantial deviation'' to make clear that
the notification requirement of proposed section 2807.11(b) applies
only in circumstances where the use is outside the scope of an existing
grant or outside the boundaries of an existing authorized right-of-way.
The requirement does not apply to uses that are in an existing grant.
BLM considers adding facilities that are not specifically authorized in
the original grant to be a substantial deviation that requires
supplemental authorization in the form of a grant amendment.
Several commenters said that as it pertains to the definition of
``temporary use permit,'' public safety is an ``OSHA function,'' not a
BLM function. They also said that there should be a definition of
``natural environment'' in the final rule and that under a temporary
use permit, there may not be any ``natural environment'' to protect.
In the final rule we deleted the definition of ``temporary use''
from part 2800. Under the final rule, for any use or activity requiring
a FLPMA grant for a short duration, BLM will issue a short term right-
of-way grant instead of a temporary use permit. When an applicant
identifies a short term use during application processing, such as the
need for additional work space outside the right-of-way boundary, BLM
will approve that use, as appropriate, within the right-of-way grant.
When the short term use is identified after a right-of-way grant for a
project has been executed, BLM will approve the additional short term
use, as appropriate, in a separate short term grant or an amendment to
the grant. There is no specified term or duration for a short term
grant and BLM will determine the term on a case by case basis.
Under the final rule for part 2880, we will continue to issue TUPs
for uses associated with MLA right-of-way
[[Page 20979]]
grants. We disagree with commenters' suggestion that the definition of
TUPs should not address public safety. The MLA specifically states that
BLM may issue TUPS to ``protect the natural environment or public
safety'' (see 30 U.S.C. 185(e)). We also disagree with the commenters
that said under a TUP there may not be any natural environment to
protect. The ``natural environment'' is the land for which BLM issues
the original grant and any attendant TUP, which holders must protect.
In the final rule we moved the definition of ``tenant'' from
proposed section 2806.5 to this section. The final rule's definition is
similar, but more specific, than the previous rule's definition (see
previous section 2800.0-5(bb)), and is also consistent with the
proposed rule.
We use the term ``third party'' in the proposed and final rules. We
did not define it in the proposal, but do define it in the final rule
to make clear that BLM considers a third party to be any party aside
from the applicant, holder, or BLM.
In the final rule we added a definition of ``tramway'' to eliminate
confusion over the meaning of the term. One of the right-of-way uses
FLPMA specifically mentions is tramways (see 43 U.S.C. 1761(a)(6)). BLM
administers a large amount of timber property in western Oregon and on
other public lands where the term is commonly used to describe systems
for transporting and hauling timber from the forest. Previous
regulations did not define the term and there has been ongoing
confusion over what type of transportation system qualifies as a
tramway. Therefore, in the final rule we added a definition of tramway
that is consistent with common usage of the word and existing policy.
One commenter said that we should add a definition of ``trespass''
to the final rule, while other commenters said that the proposed
definition of ``trespass'' was too open ended and gave BLM too much
discretion. In the proposed rule we defined the term ``trespass'' in
the body of the regulatory text in section 2808.10, as we do in the
final rule. We disagree with the commenter that the definition of the
term is too open ended and gives BLM too much discretion. The final
definition is consistent with previous regulations (see previous
sections 2800.0-5(u), (v), and (w)) and does not give BLM any more
discretion than do previous rules.
Several commenters said that the definition of ``unnecessary and
undue degradation'' should be changed to ``unnecessary and undue
damage'' and should not include ``non-willful'' acts. Other commenters
said that ``degradation'' can mean almost anything and does not provide
guidance to industry on what to avoid. The term ``unnecessary or undue
degradation'' is statutory in origin and for that reason we decline to
change ``degradation'' to ``damage.'' The term appears in section
302(b) of FLPMA (43 U.S.C. 1732(b) which states that ``In managing the
public lands the Secretary shall, by regulation or otherwise, take any
action necessary to prevent unnecessary or undue degradation of the
lands.''
In our 1999 proposed rule, we defined the term ``unnecessary and
undue degradation'' to mean ``surface disturbance that is greater than
that which would occur when the same or a similar activity is being
done by a prudent person in a usual, customary, and proficient manner
that considers the effects of the activity on other resources and land
uses outside the area of the activity. The disturbance may be either
willful or nonwillful.'' We have decided to delete this proposed
definition (and the existing definition at 43 CFR 2800.0-5(x)) because
we find it to be unnecessary. Issuing a right-of-way grant is a highly
discretionary act on BLM's part. In final section 2804.26(a), BLM has
established standards for exercising this discretion. For instance, as
final section 2804.26 makes clear, an application may be denied if the
proposed use is not in the public interest or is inconsistent with the
purpose for which we manage the public lands.
``Unnecessary or undue degradation'' sets a standard far less
stringent that those in section 2804.26. The Secretary, through BLM,
will continue to observe the ``unnecessary or undue degradation''
standard in addressing a right-of-way application and in assessing and
administering the terms and conditions and conditions of a grant, but
will allow the facts posed by a particular situation give meaning to
this phrase.
In the final rule we moved the definition of ``zone'' from proposed
section 2806.5 to this section. We amended the definition in the final
rule to more accurately describe a zone as ``one of eight geographic
groupings necessary for linear right-of-way rent assessment purposes,
covering all lands in the contiguous United States.''
Section 2801.6 Scope
This section explains what these final regulations apply to and
what the final regulations do not apply to. In this final rule we
combined proposed sections 2801.7 and 2801.8 into this section. We also
amended this section by adding new paragraphs (b)(5), (6), and (7).
We added new paragraph (b)(5) to alleviate the concerns of some
commenters that this rule would have a negative effect on rights under
R.S. 2477.
We added new paragraph (b)(6) to clarify that the right-of-way
regulations do not apply to existing rights for private reservoirs,
ditches, and canals established prior to FLPMA under the Mining Act of
July 26, 1866. We think this clarification will be helpful in
eliminating any confusion associated with the previous regulatory
language found in former section 2801.4.
In the 1866 Act, Congress granted Federal protection for vested
state law-based water rights and rights-of-way for ditches, canals and
other structures necessary for the use of water. Under the Act, a
private party could acquire a right-of-way across Federal lands without
any action by the government--no application or filing with the
government was necessary, and no governmental approval was required.
The right-of-way vested once a ditch or canal was constructed and a
water right acquired. Once the right-of-way was created, it existed in
perpetuity and included the right to operate and maintain the ditch,
canal or conduit within the right-of-way. See, e.g., Utah Power & Light
v. United States, 243 U.S. 389, 405 (1917); Gorrie v. Weiser Irr.
Dist., 153 P. 561, 562 (Id. 1915); Perry v. Reynolds, 122 P.2d 508, 511
(Id. 1942); United States v. Big Horn Land & Cattle Co., 17 F.2d 357,
366 (8th Cir. 1927).
Other statutes enacted after the 1866 Act also allowed private
parties to acquire rights-of-way across Federal lands. Unlike 1866 Act
rights-of-way, however, these other statutes required government action
before rights-of-way vested. For example, the Act of March 3, 1891
required an applicant to file and get government approval of a map
before the right-of-way vested. The 1891 Act differed from the 1866 Act
in several other ways, too. Unlike the 1866 Act, the 1891 Act defined
the physical extent of the right-of-way. In addition, the 1891 Act
allowed for establishment of rights-of-way for irrigation purposes on
reserved lands; the 1866 Act did not apply to reserved lands.
When FLPMA was enacted in 1976, it repealed the existing laws
governing rights-of-way and replaced them with a single mechanism for
establishing a right-of-way over the public lands. Section 501(a) of
FLPMA provides the Secretary of the Interior with authority to ``grant,
issue, or renew rights-of-way over, upon, under, or through'' the
[[Page 20980]]
public lands. 43 U.S.C. 1761. In addition, FLPMA provides the Secretary
with authority to impose terms and conditions on these rights-of-way
that, among other things, ``minimize damage to scenic and esthetic
values and fish and wildlife habitat and otherwise protect the
environment.'' Section 505(a); 43 U.S.C. 1765.
But FLPMA did not terminate rights-of-way established under the
prior statutes. Instead, FLPMA expressly preserved and protected such
pre-existing private rights-of-way. Section 701(a) of FLPMA provides
that FLPMA does not terminate ``any valid lease, permit, patent, right-
of-way, or other land use right or authorization'' existing at the time
of FLPMA's enactment. 43 U.S.C. 1701, note 1. In addition, section
701(h) of FLPMA provides that all actions taken by the Secretary in the
exercise of her authority under FLPMA are ``subject to valid existing
rights.'' 43 U.S.C. 1701, note 1. Together, these provisions of FLPMA
ensure that pre-FLPMA rights-of-way are protected and preserved.
This final rule therefore reflects long-standing law and BLM's
historical practice by clarifying that 1866 Act rights-of-way are not
subject to regulation so long as a right-of-way is being operated and
maintained in accordance with the scope of the original rights granted.
Because rights-of-way under the 1866 Act are perpetual and do not
require renewal, no authorization under FLPMA exists or is required in
the future. Therefore, unless a right-of-way holder undertakes
activities that will result in a substantial deviation in the location
of the ditch or canal, or a substantial deviation in the authorized
use, no opportunity exists for BLM to step in and regulate a right-of-
way by imposing terms and conditions on the right-of-way's operation
and maintenance. Simply stated, there is no current BLM authorization
to which such terms and conditions could be attached. Therefore, Title
V of FLPMA and BLM's right-of-way regulations do not apply to these
rights-of-way.
This does not mean, however, that BLM cannot take action to protect
the public lands when a holder of an 1866 Act right-of-way undertakes
activities that are inconsistent with the original right-of-way. In
such a situation, if the right-of-way holder does not approach BLM for
a FLPMA permit authorizing such activities, FLPMA and BLM's trespass
regulations provide BLM with the discretion to take an enforcement
action against the right-of-way holder.
Title III of FLPMA provides the Secretary of the Interior with
broad law enforcement authority. Section 302(b) provides that the
Secretary ``shall * * * take any action necessary to prevent
unnecessary or undue degradation of the lands.'' 43 U.S.C. 1732(b). In
addition, section 303(g) provides: ``The use, occupancy, or development
of any portion of the public lands contrary to any regulation of the
Secretary or other responsible authority, or contrary to any order
issued pursuant to any such regulation, is unlawful and prohibited.''
43 U.S.C. 1733(g). BLM's trespass regulations, at 43 CFR part 9230,
specify that, among other things, the ``extraction, severance, injury,
or removal of timber or other vegetative resources or mineral materials
from public lands under the jurisdiction of the Department of the
Interior, except when authorized by law and the regulations of the
Department, is an act of trespass.'' 43 CFR 9239.0-7. Trespassers are
liable to the United States in a civil action for damages and may be
prosecuted under criminal law. Therefore, with respect to 1866 Act
rights-of-way, Section 302(b) of FLPMA and the trespass regulations
provide BLM with the authority to take an enforcement action against a
right-of-way holder undertaking activities inconsistent with the
original grant.
We added new paragraph (b)(7) to address statutory changes to the
Federal Power Act (FPA) and FLPMA. These changes incorporate existing
policy and implement FPA and FLPMA amendments.
One commenter stated that the final rule should state if there are
any rights-of-way outside the scope of the rule and should address
rights-of-way in wilderness areas or ``short term rights-of-way on
wilderness lands.'' We did not amend the final rule as a result of
these comments. However, the final rule explains what the final
regulations do not apply to and includes language in paragraph (b)(3)
that states that the regulations do not apply to ``Lands within
designated wilderness areas, although BLM may authorize some uses under
parts 2920 and 6300 of this chapter.''
Section 2801.7 Information Collection Matters
We deleted this section from the final rule because it is not
necessary to publish this information in the text of the regulations.
These regulations contain information collection requirements. As
required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.), we submitted a copy of the proposed information collection
requirements to the Office of Management and Budget (OMB) for review.
OMB approved the information collection requirements under Control
Number 1004-0189, which expires October 31, 2005.
Section 2801.8 Severability
This section explains that if any court holds provisions of these
regulations invalid, the remainder of the rules are not affected. This
principle has always applied to BLM regulations, but it is stated here
for clarity. This section was proposed as section 2801.10. We made
editorial changes to the section, but its effect is the same as the
proposed rule.
Section 2801.9 When Do I Need a Grant?
This section is a combination of proposed sections 2801.7 and
2801.8. It explains that you must have a grant when you plan to use
public lands for certain systems or facilities, whether over, under,
on, or through public lands. The section lists examples of the types of
systems or facilities that require grants. The section also explains
additional requirements for rights-of-way for generating, transmitting,
or distributing energy. Finally, the section provides a cross-reference
to BLM regulations for rights-of-way for transporting oil and gas
resources.
Section 2801.10 How Do I Appeal a BLM Decision Issued Under These
Regulations?
This is a new section to these regulations. The proposed rule
listed the basic contents of this section for each action which allows
a right to appeal. This final rule replaces the appeals language in
each of those sections with a cross-reference to this section. This
eliminates redundancy and brings this rule in line with other BLM
regulations that handle appeals sections in a similar manner.
We received several comments on the subject of appeals. One
commenter wanted the regulations to state whether or not applicants had
the right of appeal if BLM rejected their applications. As a result of
this comment, we amended final section 2804.26 and it now states that
applicants have the right of appeal to the Interior Board of Land
Appeals (IBLA) if BLM denies their applications.
Several commenters wanted the opportunity for State Director review
for initial disagreements with BLM before BLM referred the matter to
the IBLA. One commenter suggested language to accomplish this
administrative review. Although other BLM programs have adopted these
reviews, BLM did not add State Director review provisions to this final
rule. When you appeal a decision to IBLA, BLM is not prohibited from
[[Page 20981]]
reconsidering or discussing the appealed decision with you or other
interested parties. If BLM decides to rescind or amend the appealed
decision as a result of additional review or discussion with you or
other interested parties, we may rescind or amend only after asking
IBLA to remand the matter for BLM's further consideration and IBLA's
consent to this request. We encourage BLM personnel, grant holders, and
applicants to work toward informal resolution of disputes over BLM
decisions proposed or made by BLM both before and after appeals are
filed. In BLM's right-of-way program these informal reviews and
discussions have been and are a useful way to resolve disputes without
unnecessarily formal mid-level reviews, such as State Director reviews.
Several commenters said that there is no part 4 in this title. The
commenters are mistaken. Part 4 of 43 CFR is in a volume separate from
the volume where BLM's regulations are located. Parts 1 through 999,
including part 4, are in the first volume of 43 CFR and parts 1000
through 10010, including BLM's regulations, are in the second volume.
Subpart 2802--Lands Available for FLPMA Grants
This subpart describes the lands that are available for rights-of-
way and how BLM designates corridors. Generally, BLM designates lands
as suitable for right-of-way uses through its land use planning
process, as described in FLPMA and existing regulations at 43 CFR 1610.
During this process BLM prepares land-use plans, called either
``resource management plans'' or ``plan amendments.'' After going
through a process in which the public helps BLM identify issues the
plan should address, BLM then:
(A) Identifies resource and information needs;
(B) Formulates alternatives;
(C) Analyzes the effects of the alternatives;
(D) Prepares a draft plan and environmental document for public
review and comment; and
(E) Determines what resource and land-use decisions to make in the
approved plan. Among these decisions are what land uses are available
for right-of-way grants. Land use plans designate lands as:
(1) Open to right-of-way grants;
(2) Right-of-way avoidance areas (where right-of-way grants would
not be issued unless there were no other available alternatives); or
(3) Right-of-way exclusion areas where right-of-way grants would
not be approved for any reason. Land use plans also designate right-of-
way corridors.
Section 2802.10 What Lands Are Available for Grants?
This section explains that BLM grants rights-of-way for lands under
its jurisdiction and lists exceptions when we would not issue a right-
of-way grant. These exceptions include instances when a statute,
regulation, or public land order excluded right-of-way uses, the lands
are segregated or withdrawn from right-of-way uses, or when BLM
identifies areas as inappropriate in a land use plan or in an analysis
of an application. The section explains that BLM may also require
common use of rights-of-way and may require location of a right-of-way
within an existing corridor. This section states that BLM will
designate right-of-way corridors through land use plan decisions. This
section also suggests that you contact BLM to determine if the lands
you are considering for a right-of-way are available for right-of-way
use.
We added new paragraphs (a)(1), (a)(2), and (a)(3) to the final
rule to more completely explain the reasons why certain lands under our
jurisdiction would not be available for a right-of-way use. These new
provisions to the rule are consistent with the proposed rule, our
existing regulations at part 2300 (land withdrawals), subpart 2091
(segregation and opening of lands), and part 1600 (planning,
programming, and budgeting). We also eliminated the discussion in
proposed section 2802.10(b) of notifying the public ``by appropriate
means'' of designated corridors because it was vague and because we
already require public notification as part of the land use planning
process.
Several commenters said that BLM should replace ``may'' with
``will'' where it appears in proposed paragraphs (a) and (b) of this
section. We did not make the change to the final rule in either
proposed paragraph (a) or (b). Issuing a right-of-way grant remains a
highly discretionary act on our part. Section 501(a) of FLPMA
authorizes, but does not compel, the Secretary to issue rights-of-way
over, upon, under, or through the public lands (see 43 U.S.C. 1761(a)).
Section 503 of FLPMA requires common use of a right-of-way but only
``to the extent practical'' (see 43 U.S.C. 1763). There may be
circumstances where BLM determines that it is not in the public
interest to issue a right-of-way grant or to require common use of a
right-of-way area even when the lands are open to the development of
right-of-way grants. Therefore, the final rule continues to leave the
discretion to issue a grant or require common right-of-way use in BLM's
hands.
One commenter said that in paragraph (b) of this section, we should
replace ``require'' with ``propose.'' We did not change the final rule
as suggested by the commenter. As noted above, Section 503 of FLPMA
provides that BLM, to the extent practical, require, not simply
propose, common use of a right-of-way. BLM is therefore required to
issue rights-of-way in common where it is practical and replacing
``require'' with ``propose'' would be inconsistent with the statute.
One commenter said that BLM must consider the location of existing
assets and facilities when determining whether land is available.
Another commenter said that BLM should not require common use of a
corridor if location in the corridor would render use of existing
facilities infeasible or burdensome. We agree with the commenters. When
issuing rights-of-way in common, or requiring that a right-of-way be
issued in or adjacent to an existing corridor, BLM will consider
whether or not the uses are compatible. BLM will also consider the
possible impacts a proposed use may place on the future usability of a
corridor. In other words, if a proposed right-of-way use would render a
corridor unavailable for any future right-of-way uses, BLM could decide
that the proposed use should be located in some alternate location.
Several commenters suggested inserting ``or'' between
``regulation'' and ``planning'' in proposed paragraph (a), and deleting
the rest of the sentence after ``planning.'' Commenters made this
suggestion because they said environmental and other resource
conditions should already be addressed in the land management planning
process. When BLM completes, updates, or amends a land use plan we
undertake an environmental analysis. However, when a project is
proposed, BLM will complete a site-specific NEPA analysis. NEPA
requires the site-specific environmental analysis and it is designed to
identify how the project-specific activities may impact the
environment. The planning documents, on the other hand, are more
general in nature and generally do not and cannot address site-specific
impacts of a given project. Therefore, we made no changes to the final
rule as a result of this comment.
The same commenters recommended that we replace ``require'' with
``encourage'' in proposed paragraph (b) since access roads, gathering
lines, and flowlines do not always fit neatly into existing corridors.
The commenter said
[[Page 20982]]
that such a requirement could render an oil and gas project uneconomic.
We did not amend this section as suggested by the commenter. As stated
above, section 503 of FLPMA says that BLM must require common use of
rights-of-way to the extent it is practical. When determining whether
it is practical to require a right-of-way to be located in a corridor,
BLM will consider whether or not the new use will be compatible with
the existing use. If it is not, BLM will informally work with you to
determine a right-of-way location that will both protect the public
interest and meet your needs. These types of issues are best resolved
during the preapplication meeting.
One commenter said that the regulations should make clear that
communication site facility managers and facility owners need to allow
shared use of a right-of-way for pipelines and communications cables.
The commenter said that there should be a minimal process for using
existing pipeline rights-of-way for fiber optic cables and the like.
The commenter said that this will serve the public and facilitate the
installation of facilities with minimal damage to BLM lands. We agree
with the commenter and encourage co-location of fiber optic facilities
with power line structures and within pipeline rights-of-way. One of
the advantages of co-locating uses in one right-of-way is that NEPA
work has already been done for the existing use and therefore the
amount of additional environmental analysis necessary for any
additional use would normally be minimal unless the new use is
significantly different or other reasons apply. BLM currently has a
categorical exclusion for the granting of rights-of-way wholly within
the boundary of compatibly developed rights-of-way. Because exceptions
to this categorical exclusion may apply, BLM will determine the amount
of analysis and additional work for additional uses on a case-by-case
basis. The amount of analysis necessary cannot be determined by a rule
of general applicability, and as a result we did not amend the rule to
address the comment.
Several commenters said that once BLM designates corridors in land-
use plans, it should require common use of the corridor and location of
new rights-of-way within the corridor to the extent possible. The
commenters said that the proposed regulations give too much discretion.
As is stated in the proposed rule's preamble (see 64 FR 32118), BLM
designates right-of-way corridors and issues grants within these
corridors to the maximum extent possible, but due to resource concerns
and conflicts between uses, it is not always possible to restrict uses
to designated corridors. We disagree with the commenters that the
proposed regulations give BLM too much discretion in issuing grants in
right-of-way corridors. BLM must have the flexibility to choose whether
or not a use should be located in a right-of-way corridor to make sure
uses are compatible and to ensure that the public interest is
protected.
Several commenters said that forcing the use of corridors will make
lease operations uneconomical and result in a waste of minerals and
associated royalties from the public good. BLM agrees that the
designation of a corridor in a land use plan can impact, in some cases,
the development of mineral resources. The land use planning process
described above assures that our analysis considers effects on other
resource uses such as impacts to mineral extraction. It is frequently
these same mineral extraction interests that need right-of-way
corridors to support the transportation of materials to and from their
operations. We made no changes to the final rule as a result of this
comment.
One commenter said that requiring common use of a right-of-way may
be unpractical, for safety considerations, in designing power lines.
BLM considers issues of safety when requiring common use of a right-of-
way. If BLM determines that common use of a right-of-way is unsafe, BLM
will not require it.
Section 2802.11 How Does BLM Designate Corridors?
This section explains that BLM may designate corridors during the
land use planning process described in 43 CFR 1610. During this process
BLM coordinates with other Federal agencies, state, local, and tribal
governments, and the public to identify resource-related issues,
concerns, and needs. The process results in a resource management plan
or plan amendment, which addresses to what extent you may use public
lands and resources for specific purposes. It also explains the factors
that BLM considers when determining the locations and boundaries of
right-of-way corridors.
Paragraph (a) is new to the final rule and generally explains how
we designate corridors in our land use planning process, which is
discussed in greater detail in subpart 1610 of existing regulations.
This provision provides helpful background to an understanding of
paragraph (b). Final paragraph (b) lists the factors BLM considers when
designating corridors. Final paragraphs (c) and (d) are new to this
final rule and are consistent with section 503 of FLPMA and existing
policy.
Several commenters said that this section should identify how
corridors are designated. The commenters also said that the process of
designation through the land planning process or as provided by section
503 of FLPMA also needs to be briefly described. Proposed and final
section 2802.11 identify the factors BLM considers when designating
corridors. Therefore, the regulations already address the first part of
the comment. As for the second part of the comment, we do not believe
these rules should address the land use planning process since BLM's
existing regulations at subpart 1610 already address the process and it
is not necessary to repeat those regulations here. Final paragraph (a)
of this section explains that as part of the planning process under
subpart 1610, BLM designates corridors. You can find additional
information about the land use planning process in section 202 of FLPMA
(see 43 U.S.C. 1712).
Several commenters said that the regulations should emphasize the
advantages of reduced NEPA requirements, processing time, and costs
that could occur through requiring common use of existing or designated
corridors. We agree with the commenters that common use of rights-of-
way and proper corridor planning and use can lead to reduced processing
times and decreased costs. However, we do not believe it appropriate to
discuss motivating factors for using corridors in our implementing
regulations. Discussions about cost savings and processing time can
occur during the preapplication meetings discussed elsewhere in this
final rule.
Subpart 2803--Qualifications for Holding Grants
This subpart describes the qualifications necessary for applicants
to receive right-of-way grants. It discusses:
(A) Who may hold a FLPMA grant;
(B) Whether another entity can act on a grant holder's behalf; and
(C) What happens to a grant if the holder dies.
Section 2803.10 Who Can Hold a Grant?
This section explains the qualifications for holding a grant and
requires that you are:
(A) An individual, association, corporation, partnership, or
similar business entity, or a Federal, state, tribal, or local
government;
(B) Technically and financially able to construct, operate,
maintain, and terminate the grant; and
[[Page 20983]]
(C) Of legal age and authorized to do business in the state where
the right-of-way would be located.
This section is essentially the same as that proposed, except that
we added a new paragraph (c) stating that you must be of legal age and
authorized to do business in the state where the right-of-way is
located. Although this provision was not in the proposed rule, it is
consistent with previous section 2802.3(a)(5).
One commenter asked if BLM is authorized to issue grants to foreign
entities and if so, what the qualifications are. FLPMA is silent on the
subject of whether BLM may issue a FLPMA grant to foreign entities. The
part 2800 regulations are similarly silent. Regarding MLA requirements,
however, 30 U.S.C. 185(a) makes the qualifications provisions of 30
U.S.C. 181 applicable to section 185. The part 2880 regulations reflect
these considerations. For example, final section 2883.10 states in
part:
To hold a grant or TUP [temporary use permit] under these
regulations, you must be a United States citizen, an association of
such citizens, or a corporation * * * organized under the laws of
the United States, or of any state therein.
As in previous section 2802.3(a)(5), final section 2803.10 requires
all entities seeking a right-of-way grant under FLPMA to be qualified
to do business in the state where the right-of-way is located. Thus
state law must be examined to determine the eligibility of a right-of-
way applicant. Final section 2803.10 is substantially the same as
previous regulations.
Section 2803.11 (Proposed) Must I Submit Proof of My Qualifications
With My Application?
Due to reorganization, we moved the substance of this proposed
section to paragraph (b) of final section 2804.12. Please see that
section for a discussion of this matter.
Section 2803.11 (Final) Can Another Person Act on My Behalf?
This section allows another person to act on your behalf if you
have authorized the person to do so under the laws of the state where
the right-of-way would be or is located. This section is slightly
different from what we proposed in that the final rule requires that
you follow the laws of the state where the right-of-way would be or is
located. We believe this is reasonable, consistent with the intent of
the proposed rule, but most importantly, it sets the appropriate legal
standard.
Section 2803.12 What Happens to My Grant If I Die?
This section explains that if an applicant or grant holder dies,
any inheritable interest in an application or grant will be distributed
under state law. In this rule, the term ``inheritable'' is not used in
its technical sense. Here, it refers to property passing by will or
intestate succession.
If the distributee of a grant is not qualified to hold a grant
under section 2803.10, BLM will recognize the distributee as grant
holder and allow the distributee to hold its interest in the grant for
up to two years. During that period, the distributee must either become
qualified or divest itself of the interest. We added this provision to
the final rule to make sure we have consistent processes in place for
cases where an applicant or a grant holder dies.
Subpart 2804--Applying for FLPMA Grants
This subpart contains information and policies concerning how to
apply for right-of-way grants under FLPMA. It discusses:
(A) Where applicants should file their applications;
(B) What information BLM needs to process their applications;
(C) Filing fees for the various categories of applications;
(D) Exemptions from paying filing fees and criteria for
establishing reasonable costs; and
(E) How BLM processes applications, including a customer service
standard.
Section 2804.10 What Should I Do Before I File My Application?
This section encourages you to schedule a preapplication meeting
with BLM to discuss your right-of-way grant application. This section
also explains that we may share any information you provide to us at
this initial meeting with other agencies to help us to better
coordinate the application process. Final section 2804.13 provides that
we will keep confidential any information you submit that you identify
as such, to the extent allowed by law.
We received no substantive comments on this section and except for
editorial changes, it remains as proposed.
Section 2804.11 Where Do I File My Grant Application?
This section explains where you must file your right-of-way grant
application.
We received no substantive comments on this section and except for
editorial changes, this section remains as proposed.
Section 2804.12 What Information Must I Submit in My Application?
This section explains the information you must include in your
application. It requires you to file your application on Standard Form
299 and fill in the required information. This includes a description
of the project, a project schedule, the estimated life of the project,
and construction and reclamation techniques. You must also include a
map of the project, a statement of your financial and technical ability
to run the project, and any plans, contracts, and agreements concerning
the proposed use(s) on the right-of-way and its effect on competition.
We require a complete proposed project description to process the
application, to complete an accurate NEPA analysis, and to make a
determination whether the proposed use(s) indicate existing or
potential competitive interest. BLM requires materials such as plans,
contracts, agreements, etc., only if they have a direct bearing on the
proposed right-of-way uses. Section 501(b)(1) of FLPMA (and this final
rule at section 2804.12(a)(6)) requires a right-of-way applicant to
submit and disclose plans, contracts, agreements, or other information
reasonably related to the use, or intended use, of a proposed right-of-
way, ``including its effect on competition,'' which the Secretary deems
necessary. BLM typically relies on application filing activity as the
indicator of competitive interest, but may also examine the plans,
contracts, and other information supplied by an applicant to make a
determination on competitive interest. We usually process applications
on a first come-first serve basis, unless:
(A) Application activity indicates there is a competitive interest;
or
(B) Planning decisions, applicant plans, contracts, agreements, or
other information indicate there is a competitive interest.
This section also requires business entities to submit additional
information about their business. Paragraph (b) of this section was
proposed as section 2803.11. BLM requires the information in paragraph
(b) to verify the legal status of applicants, including verification
that the persons representing the applicant are authorized to do so.
Under this paragraph a business entity must submit copies of the formal
documents creating the entity and evidence that the party signing the
grant application has authority to act on the business entity's behalf.
To make it clearer, this final rule uses different terminology than the
[[Page 20984]]
proposed rule, but the effect of this final rule is the same as that
proposed.
This section also informs you that if you are an oil and gas lessee
or operator, and you need a right-of-way for access to your production
facilities or oil and gas lease, you may include your right-of-way
requirements in your Application for Permit to Drill or Sundry Notice.
This improves processing and is consistent with existing policy.
One change from proposed section 2804.12 is our deletion of ``On
the form, give your name and address and the name and address of any
authorized agent * * *'' from the second sentence of proposed paragraph
(a). We did this because the form itself requires you to submit this
information and therefore these words are redundant. In final paragraph
(a)(2), we added ``operating'' and ``terminating'' the project to the
list of things you need to address in your application to ensure that
you describe a proposed project completely. As a result of these
changes, final paragraph (a)(2) now includes all phases of a proposed
project.
In final paragraph (a)(4), the term ``facilities'' replaces the
term ``improvements.'' We made this change to make this section
consistent with the rest of the rule and because the definition of
``facility'' includes structures and improvements.
In final paragraph (b)(4), we added text concerning identification
of the number and percentage of any class of voting shares of the
entity which certain shareholder(s) are authorized to vote. This makes
final paragraph (b)(4) consistent with business entity qualification
requirements in section 501(b)(2)(B) of FLPMA and previous section
2882.2-1(b)(2). We made the same type of change in final paragraphs
(b)(6) and (b)(7) by adding ``directly or indirectly,'' to be
consistent with business entity requirements in section 501(b)(2)(C) of
FLPMA and previous section 2882.2-1(b)(3) and final section 2883.12 of
this rule. Also, in final paragraph (d) of this section we corrected
the citation to BLM's oil and gas operating regulations.
One commenter said that proposed section 2804.12(a)(6) is vague.
The commenter also said that we should define ``competition'' in the
final rule. Section 501(b)(1) of FLPMA requires a right-of-way
applicant to submit and disclose those plans, contracts, agreements,
and other information reasonably related to the use, or intended use,
of the right-of-way, ``including its effect on competition.'' As
discussed above, BLM typically relies on application filing activity to
determine whether competition exits, but we may also ask an applicant
for additional information concerning the proposed right-of-way to
verify whether competitive conditions exist. We believe that adding a
definition of competition to this regulation would not add any new or
useful information to the common understanding of the word, and
therefore did not add a definition of the term.
Several commenters said the final rule should provide for
applicant-prepared Environmental Assessments and third-party prepared
Environmental Impact Statements. The commenters said this practice is
authorized by Council on Environmental Quality (CEQ) regulations at 40
CFR 1506.5. Environmental documentation (resource surveys and reports,
environmental assessments, and environmental impact statements)
prepared by third parties or provided by right-of-way applicants is a
well-established and common practice under existing BLM NEPA guidance
in H-1790-1. Chapter V-B.1.h, states contracting may be used for
preparation of an environmental impact statement (EIS) or for certain
analyses to support preparation of an EIS and that either standard
Federal contracting procedures or third-party contracting approaches
may be followed. H-1790-1, Appendix 7.B. further clarifies that a
third-party contract is an option when BLM cannot prepare a required
NEPA analysis due to time, budget, or other limitations or when either
the BLM or the applicant requests that a contractor be hired to prepare
the EA or EIS. Therefore, adding this guidance to the final rule would
be repetitive and unnecessary.
We also agree with the commenters that under CEQ rules the practice
is acceptable. Although this practice is not specifically restated in
the final rule under section 2804.12, this option remains available to
applicants. BLM will consider environmental documentation offered by or
agreed to by an applicant in determining the appropriate cost recovery
category under section 2804.14. The environmental documentation,
however, must meet BLM standards, and any conclusions drawn from the
documentation remain BLM's jurisdiction. This final rule contains no
provision to either discourage or prohibit applicants from providing
environmental documentation for BLM to use to determine appropriate
cost recovery categories and process applications more efficiently and
timely.
Several commenters said that the final rule should make clear that
the additional information allowed under paragraph (c) of this section
should be limited to requests for ``relevant'' information or all
``pertinent'' information, and any requirements in the regulations to
ask for more information is ``too broad and open-ended,'' and could
result in limitless requests for additional information. Final section
2804.12(c) states that BLM can require an applicant to provide
additional information at any time while processing an application. The
comment implies that BLM could require information not relevant to
evaluating an application. We disagree. BLM will implement this
provision in a common sense manner, limiting requests to only that
additional information that is both relevant and necessary for BLM to
properly evaluate a right-of-way proposal and to process an application
in an efficient and timely manner.
Examples of the type of information we may require are provided by
a reference to final section 2884.11(c).
Several commenters objected to the requirement to give BLM a plan
of development and stated that it is overly burdensome, expensive, and
unnecessary. Final section 2804.25(b) does not require submission of a
plan of development as a universal requirement for all applicants. BLM
would require a plan of development only where detailed information
about a proposed right-of-way development and use is both relevant and
necessary for BLM to properly analyze a proposal and render a decision.
This is consistent with proposed sections 2804.20(b).
A few commenters said that BLM should require an applicant to
provide an ``initial environmental assessment'' as part of the
application since that would enable BLM, other Federal agencies, and
state governments to better assess impacts on endangered species,
cultural resources, and the like. BLM disagrees with the commenter and
we did not amend the final rule as a result of this comment. Because we
receive a wide range of applications in terms of scope and impact, we
believe that a universal requirement that all applicants be required to
submit environmental studies would be inappropriate. However, under
this final rule, applicants may continue to volunteer such information
to facilitate the processing of an application. Under final sections
2804.12(c) and 2804.25(b), BLM may require an applicant to provide this
type of information if we determine it is necessary to process an
application.
[[Page 20985]]
Section 2804.13 Will BLM Keep My Information Confidential?
This section makes it clear that BLM will keep confidential any
information in your application that you mark as ``confidential'' or
``proprietary'' to the extent allowed by law.
We amended this section slightly by replacing ``to the extent
allowed under the Freedom of Information Act (5 U.S.C. 552)'' with ``to
the extent allowed by law'' to be consistent with other BLM
regulations. We received no substantive comments on this section.
Section 2804.14 What Is the Processing Fee for a Grant Application?
This section requires you to submit a processing fee for a right-
of-way grant application before BLM incurs the costs to process your
application.
This final rule changes the terminology describing this fee. In the
proposed rule we used the phrase ``filing fee'' to describe the fee.
The final rule uses the phrase ``processing fee'' because that term
more accurately describes the fee.
We added a new provision to paragraph (b) of this section which
explains that there is no fee if BLM takes one hour or less to process
your application. We believe that the minimal costs involved to process
an application requiring one hour or less of work does not justify
charging a fee.
We added a provision at final section 2804.14(f) that we
inadvertently omitted from the proposed rule. This provision allows
applicants to pay full actual costs for processing applications and
monitoring grants. Although FLPMA requires the Secretary to consider
the factors at section 304(b) of FLPMA in determining reasonable fees,
and these regulations provide for that, BLM has found that some
applicants prefer to pay actual processing and monitoring costs to
assist us in processing their applications in a more timely manner.
This rule is consistent with previous section 2808.3-1(f) and section
307(c) of FLPMA (43 U.S.C. 1737(c)). Section 307(c) allows the
Secretary of the Interior to ``accept contributions or donations of
money, services, and property, real, personal, or mixed, for the
management, protection, development, acquisition and conveying of the
public lands * * *.''
BLM has not increased processing fees since publication of its
final rule in July 1987. Since January 1986, the Consumer Price Index
for All Urban Consumers (CPI-U) has risen by an average annual rate of
about 3.83 percent or a total of about 73 percent. The Implicit Price
Deflator, Gross Domestic Product (IPD-GDP), has risen by an average
annual rate of about 2.88 percent or a total of about 55 percent.
A 1995 audit of BLM's cost recovery efforts by the OIG found BLM
was not recovering all the costs of processing applications and
recommended that BLM revise its regulations to recover all applicable
costs and to provide for adjusting processing costs on an annual basis
to reflect changes in economic conditions. The audit estimated that BLM
incurred about $640,000 in additional expense in excess of the fees
collected in 1993. (This shortfall comes to $213 per application, or
$800,000 and $336 respectively when adjusted for changes in the IPD-
GDP.) Since section 504(g) of FLPMA requires that BLM set these costs
by regulation and the current regulations contain fixed charges, BLM
must revise the regulations to revise the processing fees. The final
rule will establish a mechanism to adjust the processing fees on an
annual basis to reflect changes in economic conditions.
The preamble to the proposed rule at 64 FR 32107 states that BLM
conducted field studies in 1982 and 1983 which measured the costs of
processing right-of-way applications and monitoring grants. Between
November 12, 1982, and July 25, 1986, BLM field offices kept and
reported actual time and cost on some 500 right-of-way projects in non-
major categories (see 51 FR 26840 (July 25, 1986)). In 1986, the agency
conducted an extensive field study of processing and monitoring costs,
which generally verified the processing costs developed from the
earlier studies (see 64 FR 32108).
When we set the MLA processing fees in 1985 (50 FR 1308, Jan. 10,
1985) and in the proposed rule, we set fixed MLA processing and
monitoring fees at our estimated actual cost, as required by section 28
of the MLA. The preamble to the rule proposing MLA cost recovery fees
in 1983 makes plain that the fees were developed by a BLM task force
consisting of employees with expertise in the processing and monitoring
of right-of-way cases, budgeting, and cost accounting. The task force
analyzed data from a representative sample of actual right-of-way cases
and examined several demographic variables which might influence cost,
including location and area of the right-of-way or temporary use area.
Fees were based on the estimated work effort required to accomplish the
processing actions, including personnel costs, fringe benefits, vehicle
usage, and indirect costs (see 48 FR 48478, 48479 (Oct. 19, 1983) and
64 FR 32108 (June 15, 1999)).
In 1995, BLM program experts analyzed a cross section of our right-
of-way cases. This analysis showed that the cost of processing right-
of-way cases, including labor costs, had increased since 1986 at
approximately the same rate as the IPD-GDP. Therefore, the final rule
adjusts costs upward based on the IPD-GDP and allows for automatic
adjustments based on this indicator. However, in the final rule we also
made several other adjustments in the proposed rule fee schedule, in
response to comments, which affect the final amounts and number of
categories for both the processing and monitoring schedules.
The proposed rule requested public comment (see 64 FR 32108) on
whether BLM should adopt a ``Minimum Impact'' category similar to the
one proposed by the U.S. Forest Service. We received several comments
suggesting BLM establish a minimum impact processing fee category or a
category for any action which might take from 1 to 8 hours to process,
such as most assignments and many renewals. We agree that some right-
of-way actions can be accomplished in less than eight hours, but saw no
benefit in referring to the category as the ``minimal impact
category,'' or restricting the category to only work on assignment and/
or renewal applications. Therefore, in the final rule, BLM establishes
a new processing and monitoring category (Category 1) for all right-of-
way actions where we spend more than one hour, but less than or equal
to eight hours, processing the application or monitoring the grant, but
we did not use the ``minimal impact category'' title.
In the final rule we increased the number of processing categories
to six from four, adding a Category 1 for processing routine
applications that require greater than one hour and less than or equal
to 8 hours to process, as just discussed, and another category for
processing Master Agreements. Under the final rule no fee is assessed
for any action that takes 1 hour or less to process. We then adjusted
new Category 2 to include actions that are estimated to take a maximum
of 24 hours but greater than eight hours. New Categories 3 (>24 hours
<= 36 hours) and 4 (>36 hours <= 50 hours) are the same as proposed
Categories II and III. Category 5 in the final rule is for Master
Agreements only. The proposed regulations did not contain a
specifically numbered category for Master Agreements, and in this final
rule BLM gave these agreements their own category number. Category 6 in
the final rule (Category IV in the proposed rule) is for processing
applications where the estimated work hours are greater than 50.
[[Page 20986]]
For Processing Categories 1 through 4, labor costs are by far the
largest percentage of processing costs. Costs associated with
environmental analysis and other application processing steps for these
categories are predominantly labor costs. The costs of supplies,
printing, fuel, and lodging are relatively small. For Processing
Category 5 and 6 applications, the extent of the required environmental
analysis is usually an important factor in determining processing
costs, particularly if the application requires an EIS. Processing
costs for Category 5 and 6 applications are, however, worked out in
advance between BLM and the applicant either through a Master Agreement
or a detailed accounting of work hours spent on processing an
application.
In the proposed rule we used the term ``field examination'' in the
category definitions and defined it in section 2801.5 of this part. In
the final rule we eliminated this term and instead based the categories
on the number of Federal work hours needed to process the document or
request. We made this change for Categories 1 through 4 because the
non-labor costs are relatively insignificant compared to labor costs,
and for Categories 5 and 6 because the non-labor costs are considered
as part of a Master Agreement or are otherwise negotiated. As used in
the proposed rule, field examinations conducted during the processing
of applications included the time and travel costs for BLM personnel.
Because, as explained, labor costs constitute nearly all costs
associated with field examinations, we decided to measure costs by work
hours.
For processing and monitoring fees that we collect under FLPMA, we
are required to consider the ``reasonableness'' factors at section
304(b) of FLPMA. These factors are:
(1) BLM's actual costs to process an application, including
monitoring construction, operation, maintenance, and termination of a
facility authorized by a right-of-way grant. Actual costs do not
include management overhead, which means costs of BLM State Directors
and Washington office staff, except when a member of this group works
on a specific right-of-way application or grant. Actual cost includes
both direct and indirect costs and other costs such as money spent on
special studies, environmental impact statements and other analysis,
and monitoring activities. We estimated actual cost figures for each
category using data from the studies described previously. Where an
appraisal is necessary to calculate rent for a right-of-way, such costs
may be included in actual costs;
(2) The monetary value, or objective worth, of the right-of-way or
what the right-of-way grant is worth in financial terms to the
applicant. The preamble to the proposed rule at 51 FR 26837 (July 25,
1986) sets forth a number of ways to estimate monetary value, such as
computing residual return or the residual profit of the project.
Monetary value can be an enhancing factor when that value is greater
than BLM's processing costs. This enhancing factor may offset a
diminution caused by another of the ``reasonableness'' factors, such as
public service provided. In considering and applying this factor since
1987, we have noted that the monetary value of the right or privilege
sought has been much greater than the processing cost;
(3) The efficiency with which BLM processes an application. This
factor refers to BLM's ability to process an application with a minimum
of waste by carefully managing agency expenses and time. An explanation
of this factor is set forth at 51 FR 26838 (July 25, 1986). Among the
considerations there is the establishment of a cost recovery process
that does not cost more to operate than would be collected under the
process. Charging fixed fees based on the number of Federal work hours
necessary to process an application benefits applicants by informing
them in advance what the fee will be, and eliminates the enormous time
and expense that would be required to track the processing of each
document on a case-by-case basis. The use of current average costs to
set a fee schedule is a commonly accepted practice in both the private
and public sectors (see 50 FR 1309 (Jan. 10, 1985) (preamble to the
final rule setting fees for MLA rights-of-way). Our application
processing and grant administration procedures, which are based on
standard steps in internal BLM Manuals and Handbooks, are reasonably
efficient;
(4) Costs incurred for the benefit of the general public interest
rather than for the exclusive benefit of the applicant. Under this
factor, we examine whether any of the costs for such things as studies
and data collection have value to the Federal Government or the general
public apart from processing the application. Courts have held that
processing which an agency is required to perform in connection with a
specific request (for example, before approving a permit or grant)
provides a special benefit to an applicant, even if it also provides
some benefit to the public. (See, e.g., Mississippi Power & Light Co.
v. United States Nuclear Regulatory Comm'n, 601 F.2d 223 (5th Cir.
1979), cert. denied, 444 U.S. 1102 (1980)). In our preamble to proposed
rules at 51 FR 26840 (July 25, 1986), we stated that for non-major
projects, there is little opportunity for public benefits or public
services because of the local nature of such projects. We find, in
practice, that any small benefit to the public provided by the
processing of fixed-fee right-of-way applic