The Bureau of Land Management NEWS |
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The Bureau of Land Management NEWS |
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Last updated: 01/12/01
[Federal Register: June 15, 1999 (Volume 64, Number 114)]
[Proposed Rules]
[Page 32105-32143]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jn99-28]
[[Page 32105]]
_______________________________________________________________________
Part II
Department of the Interior
_______________________________________________________________________
Bureau of Land Management
_______________________________________________________________________
43 CFR Parts 2800 and 2880
Rights-of-Way, Principles and Procedures; Rights-of-Way Under the
Mineral Leasing Act; Proposed Rule
[[Page 32106]]
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 2800 and 2880
[WO-350-2800-24 1A]
RIN 1004-AC74
Rights-of-Way, Principles and Procedures; Rights-of-Way Under the
Mineral Leasing Act
AGENCY: Bureau of Land Management, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Land Management (BLM) of the United States
Department of the Interior proposes to: amend its right-of-way
regulations to revise rent and cost recovery procedures and policies;
adjust cost recovery fees to reflect cost increases since the current
regulations became effective in July 1987; eliminate automatic
exemptions from cost recovery for federal agencies, except for those
agencies and projects exempted by law; use a short-term right-of-way
instead of a temporary use permit for rights-of-way issued under the
Federal Land Policy and Management Act of 1976; clarify how BLM will
apply rent schedules for communication site rights-of-way; broaden the
conditions for which BLM will require advance payment of rent; rephrase
the language of the regulations into plain language; and reorganize the
regulations to reflect the sequence in which BLM takes action on
applications.
DATES: Send your comments to reach BLM on or before October 13, 1999.
BLM will not necessarily consider any comments received after the above
date during its decision process on the proposed rule. Because of the
length of the comment period, BLM does not intend to extend it.
ADDRESSES: You may mail comments to: Bureau of Land Management,
Administrative Record, Room 401 LS, 1849 C St., N.W., Washington, D.C.
20240. You may also hand-deliver comments to: BLM, 1620 L St., N.W.,
Room 401, Washington, D.C. Comments, including names and addresses of
respondents, will be available for public review at the above address
during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through
Friday, except holidays. For information about filing comments
electronically, see the SUPPLEMENTARY INFORMATION section under
``Electronic access and filing.''
FOR FURTHER INFORMATION CONTACT: Ron Montagna, (202) 452-7782,
ron__montagna@blm.gov. Individuals who use a telecommunications device
for the deaf (TDD) may call the Federal Information Relay Service
(FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern time,
Monday through Friday, except holidays.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures and Information
II. Background
III. Discussion of Proposed Rule
IV. Procedural Matters
I. Public Comment Procedures
Electronic Access and Filing Address
You may view an electronic version of this proposed rule at BLM's
Internet home page at www.blm.gov. You may also comment via the
Internet to: WOComment@blm.gov. If you submit your comments
electronically, please submit them as an ASCII file to minimize
computer problems and include ``Attention: AC74'' and your name and
return address in your Internet message. If you do not receive a
confirmation from the system that we have received your Internet
message, contact us directly at (202) 452-5030.
Written Comments
Confine written comments on the proposed rule to issues pertinent
to the proposed rule and explain the reasons for any recommended
changes. Where possible, reference the specific section or paragraph of
the proposal which you are addressing. BLM may not necessarily consider
or include in the Administrative Record for the final rule comments
which it receives after the comment period closes (see DATES), or
comments delivered to an address other than those listed above (see
ADDRESSES).
Written comments, including the names, street addresses, and other
contact information about respondents, will be available for public
review at the above address during regular business hours (7:45 am to
4:15 pm), Monday through Friday, except holidays. Comments made by
Internet will be available for inspection at the end of the comment
period. Individual respondents may request confidentiality. If you wish
to request that BLM consider withholding your name, street address and
other contact information (such as: Internet address, FAX or phone
number) from public review or from disclosure under the Freedom of
Information Act, you must state this prominently at the beginning of
your comment. BLM will consider each request on a case-by-case basis.
Such requests will be granted to the extent allowed by law. All
submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, will be made available for public inspection in their
entirety.
BLM is interested in all comments that you may have on the issues.
We are especially interested, however, in comments and rationale in the
following areas:
<bullet> Whether or not BLM should continue to issue temporary use
permits for rights-of-way issued under the Federal Land Policy and
Management Act;
<bullet> Whether or not there should be a separate cost recovery
decision for monitoring costs or whether each application category
decision should continue to determine both the processing and the
monitoring category fees. If you believe that there should be separate
application and monitoring categories, please provide definitions for
the monitoring categories and identify methods that BLM can use to
relate a fee to a specific category;
<bullet> Whether BLM should charge for processing right-of-way
grant renewals, and, if so, on what should the costs be based;
<bullet> Whether or not federal agencies should continue to be
exempt from cost recovery and rent payments;
<bullet> When and under what conditions BLM should require the
advance payment of rent;
<bullet> Whether BLM should establish a new ``Minimal Impact'' cost
recovery category for non-Mineral Leasing Act actions that require less
than 8 hours to process; and
<bullet> Whether BLM should impose fees for late payment of rent.
Interagency Coordination
The United States Department of Agriculture, Forest Service, is
currently preparing regulations to recover its costs for processing and
administering special use authorizations on National Forest System
lands. In doing so, the Forest Service intends to adopt, to the extent
possible, the processes, procedures, and schedules identified in this
proposed rule. The Forest Service will evaluate the comments received
in response to this proposed rule and will consider those comments in
developing proposed regulations applicable to special use applications
and authorizations on National Forest System lands. The Forest Service
intends to publish its proposed cost recovery regulations for review
and comment as soon after the close of the comment period on these
proposed rules as possible.
[[Page 32107]]
II. Background
General Authorities and Policies
Section 501 of the Federal Land Policy and Management Act (FLPMA),
43 U.S.C. 1761, authorizes the BLM to issue and renew rights-of-way
under, over, and through lands under its jurisdiction. These rights-of-
way may contain facilities for impounding, storing and transporting
water; for transporting and distributing liquids and gases other than
oil and gas; for distributing and transporting solid materials, other
than oil and gas and products refined from them; for generating,
transmitting, and distributing electricity; for transmitting and
receiving electronic signals, such as radio, television and telegraph;
and for transportation corridors, such as railroads, roads, tramways,
and livestock driveways.
Section 28 of the Mineral Leasing Act, as amended (MLA), 30 U.S.C.
185, authorizes the Secretary of the Interior to grant to qualified
applicants rights-of-way through Federal lands for transporting oil,
gas, synthetic liquid or gaseous fuels, or other refined products. The
MLA also allows for temporary use permits to supplement each pipeline
right-of-way for the purposes of constructing, operating, maintaining
and terminating the pipeline and to protect the natural environment and
public safety.
BLM has designed its right-of-way program to coordinate the actions
of individuals, governments, and businesses in using public lands for
right-of-way purposes; promote the sharing of rights-of-way; protect
the quality of natural resources; prevent unnecessary environmental
damage to lands and resources; and protect the right-of-way holder's
investments in improvements on the right-of-way.
Statistics About Rights-of-Way
As of September 30, 1998, there were 87,511 active right-of-way
grants under BLM administration. Most of the grants are located in the
western states of Alaska, Arizona, California, Colorado, Idaho,
Montana, Nevada, New Mexico, Oregon, Utah, Wyoming, North and South
Dakota and Oklahoma. New Mexico had the largest number of grants, and
Wyoming had the next largest. There were 63 grants located east of the
Mississippi River. Of the right-of-way grants, approximately 28 percent
are for roads and highways, 28 percent represent oil and gas related
systems, 4 percent represent grants for communication sites, 13 percent
represent grants for electrical generation and transmission lines, and
27 percent are for other uses, such as telephone, telegraph, and other
miscellaneous systems.
III. Discussion of the Proposed Rule
Unless specifically stated in the discussion below, BLM does not
intend to make policy changes by rewording and streamlining the
regulatory text. If you believe that rewording the regulatory text has
resulted in BLM's eliminating or changing important concepts or
policies, please describe in your comments these modifications or
omissions and the reasons that you believe the regulations should
retain the concept from the existing regulations.
General Discussion
The discussions below affect more than one section of the proposed
regulations and contain proposed policy changes and the rationale for
them.
Cost Recovery Provisions
(Proposed sections 2803.14, 2804.16, 2883.11, and 2884.13, and subparts
2807 and 2887)
It may be helpful to read the preamble to the July 25, 1986,
proposed rules, published at 51 FR 26836, and to the July 8, 1987,
final rules at 52 FR 25802, to get more background information on
current cost recovery policies.
BLM proposes the following specific changes to the cost recovery
provisions:
<bullet> Reduce the number of fee categories used for recovering
the cost of processing applications from five to four (for rights-of-
way issued under FLPMA) and from six to four (for rights-of-way issued
under the MLA);
<bullet> Clarify the definition of the term ``category I, II,
etc.,'' to include processing steps and work hours;
<bullet> Provide a ``master agreement'' category for multiple
applications submitted by a single applicant in a specific geographical
area;
<bullet> Adjust the fees for both processing an application and for
monitoring any ensuing grant to reflect the reasonable (FLPMA) or
actual (MLA) costs and the effects of inflation;
<bullet> Use proposed fees to determine the cost reimbursement fees
for assignments and renewals; and
<bullet> Broaden the conditions under which BLM will require
advance payment of rents.
We expect that these proposed changes will shorten application
processing time, reduce costs, and result in a more equitable
distribution of business costs between the benefitting entity and the
general public.
Background for changes. Section 504(g) of FLPMA authorizes BLM to
recover the ``reasonable'' costs of processing and monitoring rights-
of-way issued under Title V, 43 U.S.C. 1761. Section 28(f) of the MLA,
30 U.S.C. 185(l), requires applicants for pipeline rights-of-way issued
under the MLA to reimburse the United States for the administrative and
other costs involved in processing applications and for the United
States' costs of monitoring activities under those grants. The
administrative and other costs associated with MLA grants are
collectively referred to as ``actual costs.''
Section 304(b) of FLPMA allows the Secretary of the Interior to
establish ``reasonable costs'' for processing applications and other
documents relating to public lands. Several factors that the Secretary
may consider in establishing reasonable costs include the costs of
special studies; preparing and distributing environmental documents,
such as environmental assessments and environmental impact statements;
monitoring the construction, operation, maintenance, and termination of
facilities; and other special activities.
BLM first issued cost recovery regulations for linear and areal
rights-of-way in 1979. The regulations for FLPMA rights-of-way were
successfully challenged in federal court in Nevada Power Co. v. Watt,
711 F.2d 913 (10th Cir. 1983), on the basis that the regulations did
not sufficiently consider each of the ``reasonability criteria'' in
section 304(b) of FLPMA, 43 U.S.C. 1734(b). BLM then developed
definitions for these criteria, which were published in July 1987.
Based on field studies conducted in 1982 and 1983, which measured
the costs of processing right-of-way applications and monitoring
grants, BLM developed a number of ``cost categories'' and the
corresponding average costs of processing applications that fall into
one or another of these categories. BLM broke the cost information into
various elements, e.g., filing, status review, field examination,
environmental considerations, and document preparation. For FLPMA
rights-of-way, BLM related these costs to the statutory reasonability
criteria and made decisions to: (1) retain the cost if it was
reasonable, (2) eliminate the cost if it did not meet the reasonability
requirements, or (3) adjust the cost downward, if it contained both
public and private benefits under the reasonability requirements. From
this analysis, BLM proposed four cost categories with fixed cost
recovery fee amounts and a fifth category, as described in the next
paragraph, requiring the full reasonable costs as determined by BLM.
[[Page 32108]]
In cases where a fixed fee amount would not be appropriate, such as
complex projects, BLM established a final category for the reasonable
costs of processing individual cases and of monitoring activities under
the grant. In these cases, each applicant had the options of: (1)
completely analyzing the estimated actual costs relative to the
reasonability criteria, (2) waiving the full analysis and completing a
less demanding analysis that could limit the costs recovered to 1
percent of construction costs, or (3) waiving these analyses and
agreeing to pay the full reasonable costs involved, as jointly
determined by BLM and the applicant.
For MLA rights-of-way, BLM also used the 1982 through 1983 field
studies to establish five fixed fee amount categories, each based on
its relevant average actual cost. A final sixth category requiring
periodic payment of actual costs was also included for these rights-of-
way.
At the time of the study BLM did not have sufficient cost data on
monitoring grants to determine the exact monitoring costs. To provide
some recovery of costs, BLM estimated the necessary monitoring cost for
each fixed fee category for both FLPMA and MLA rights-of-way.
FLPMA applicants could request that BLM review their specific
circumstances and consider a waiver or reduction in the amount of the
processing or monitoring fees or both. Current regulations exclude from
the cost recovery provisions certain applicants, such as federal
agencies, ``non-utility type'' state and local governments, and
applicants for ``cost-share'' roads and reciprocal right-of-way
agreements.
BLM conducted an extensive field study of processing and monitoring
costs in 1986. The study generally verified the processing costs
developed from the earlier study. The study also demonstrated that the
costs related to monitoring could be further refined. Current
regulations do not specify any method for increasing costs for
inflation or similar factors except for proposing a change in
regulations. As the cost of living has increased steadily for the last
40 years (the last yearly drop in the Consumer Price Index occurred in
1955), a mechanism for adjusting processing and monitoring fees is
desirable. BLM has looked at various indices, e.g., the Consumer Price
Index (CPI), the CPI-U (urban), and the Implicit Price Deflator-Gross
Domestic Product (IPD-GDP), that could be used to update fee schedules
periodically.
In 1995 the Inspector General (IG) for the Department of the
Interior audited BLM's cost recovery efforts on rights-of-way. The IG
found BLM's financial system was not adequate to give a good estimate
of the costs of the right-of-way program. The IG found that BLM's
processing fees were too low. The IG estimated costs from two
approaches: (1) examining randomly selected case files and estimating
the time required to perform the work involved and (2) polling BLM
personnel as to the amount of time spent on right-of-way casework. In
both cases the IG compared these estimates to the actual amount of cost
recovery money collected for the specific cases in (1) and (2). Based
on 75 sample cases and an estimated 3,000 cases per year, the IG
estimated that BLM was losing $640,000 per year in processing costs.
(The 3,000-case figure includes cases which, under current regulations,
are excluded from cost recovery.) The IG recommended that BLM revise
the regulations to recover all applicable costs.
BLM has adopted the IG's recommendations by proposing to: (1)
increase the processing and monitoring costs for right-of-way
applications, (2) provide for cost adjustments to accommodate increases
in the economic indicator reflecting the general cost of labor, and (3)
eliminate fixed dollar amounts from the regulations to allow for
periodic cost adjustments.
The following paragraphs describe the proposed changes to the cost
recovery provisions of the existing right-of-way regulations. Changes
would decrease the number of cost recovery categories for both FLPMA
and MLA applications and for monitoring categories, revise the
definitions of the categories, eliminate the automatic exemption from
paying processing costs for Federal agencies, and increase category
fees.
Cost recovery categories. Experience suggests a need for one less
fixed fee amount category for FLPMA applications processed under
proposed section 2804.20 and two less categories for MLA applications
processed under proposed section 2884.18. BLM rarely uses existing
Category IV for FLPMA applications or existing Categories IV and V for
MLA applications. These categories involved applications which
historically require multiple field examinations that are normally
associated with collecting original data to complete environmental
analysis or to verify the existence or absence of a threatened or
endangered plant or animal species. In these cases, the work involved
in processing the applications generally meets the criteria for
Category V for FLPMA applications and Category VI for MLA applications,
both of which address complex projects.
The proposed regulations at sections 2804.14 and 2884.12 would
remove the existing Category IV for FLPMA applications and Categories
IV and V for MLA applications. BLM would establish a new Category IV
for use with both types of applications. The new Category IV would
require the applicant to pay the full reasonable or actual cost to BLM
of processing right-of-way applications that require multiple field
examinations and collecting or verifying original data.
The proposed regulations at sections 2804.17 and 2884.13 establish
a ``master agreement'' category for both FLPMA and MLA right-of-way
applications. A master agreement is an agreement between BLM and you
that, among other things, specifies you will reimburse BLM for the full
reasonable costs of processing your application(s), if you are seeking
a FLPMA grant, or the full actual costs of processing your
application(s), if you are seeking an MLA grant. Paragraph (b) of
proposed section 2804.17 lists the areas of negotiation. The master
agreement application category is especially useful for MLA right-of-
way applications. Most MLA right-of-way applications filed with BLM
involve activities within a limited area, an oil and gas field of
relatively compact size. For example in New Mexico, an oil and gas
field about 50 miles by 50 miles was developed on or crossing BLM-
administered lands. In a 20-month period, developers filed some 205
right-of-way applications, each requiring individual category decisions
and the collection of separate fees. One developer filed about half of
the applications; another filed about 15 percent. A coordinated
agreement for processing multiple applications for rights-of-way
located in a limited area would have resulted in a more timely and
complete response for both BLM and the companies involved.
The proposed regulations specify what master agreements should
include, what BLM expects of applicants, and what applicants may expect
of BLM.
The Forest Service proposes a fee category called ``Minimal
Impact.'' The Forest Service considers this fee category to include
minor recreation activities in an area already approved or designated
in a forest plan for that use. Examples of ``minor recreation
activities'' would be a one-time permit for a wedding, a marathon, a
bike race, and a company picnic for more than 75 people. The Forest
Service proposes a flat fee of $75 for processing an application in the
Minimal Impact Category and no monitoring fee, since the authorization
covers a one-time event.
[[Page 32109]]
These activities do not qualify for grants issued under Title V of
FLPMA, and BLM does not propose to add a Minimal Impact Category to our
revised category list. If we did adopt a Minimal Impact Category, we
would charge the same fee as the Forest Service proposes. We invite
your comments on whether to include this category for short-term
activities authorized by temporary use permits issued under the MLA or
short-term grants issued under FLPMA.
Revised category definitions. Applicants for grants have requested
that BLM revise the existing category definitions. Applicants have
stated that the definitions of the categories do not clearly state
which costs to exclude or include. The proposed category definitions
attempt to better define the categories by stating what factors BLM
must consider in determining the application category. These factors
include (1) whether or not original data are needed, (2) whether or not
BLM must amend an existing land-use plan, (3) how many, if any, field
examinations are needed, and (4) the estimated number of work hours
needed to complete processing the application.
The current fee category for processing an application also
establishes the fee category for monitoring the subsequent grant. Once
BLM issues the grant, however, the situation may change from that
existing when the application was processed and require reevaluation of
monitoring costs. For example, the presence of an endangered species or
of an archaeological site may require numerous field observations by
BLM or the grant holder, especially during construction. Thus,
monitoring costs may increase.
Current fee schedules of processing and monitoring costs are
estimated average costs across BLM. The studies performed in 1986
tracked monitoring costs according to the category decisions for
processing. While normal statistical analysis would eliminate unusually
high or low values, the remainder, as an average, should account for
most of the variables between easy-to-hard processing and easy-to-hard
monitoring.
If BLM establishes monitoring fees separate from application
processing fees, we propose to establish the monitoring categories
based on the number of work hours involved, including the number of
field examinations needed to monitor the grant. These hour estimates
would be determined separately from the hour estimates for the
processing fee categories. For instance, Monitoring Category I would
consist of those grants that require less than 24 hours of work,
including field examinations; Monitoring Category II would consist of
those grants requiring between 24 and 36 hours of work, including field
examinations; and Monitoring Category III would consist of those grants
requiring between 37 and 50 hours of work, including field
examinations. If you believe that this is an inappropriate criterion
upon which to base monitoring categories, please suggest alternative
criteria.
Background for category fee amounts. Current regulations at subpart
2808 of this title set fees for processing and monitoring costs as
follows:
------------------------------------------------------------------------
Processing Monitoring
Category fee fee
------------------------------------------------------------------------
I............................................. $125 $50
II............................................ 300 75
III........................................... 550 100
IV............................................ 925 200
V............................................. Full reasonable costs
as required.
------------------------------------------------------------------------
Based on the field study of some 1600 cases, BLM should have
adjusted these fees in 1987, because of inflation and underestimating
costs, to:
------------------------------------------------------------------------
Processing Monitoring
Category fee fee
------------------------------------------------------------------------
I............................................. $175 $65
II............................................ 300 100
III........................................... 575 175
IV............................................ 820 200
------------------------------------------------------------------------
Current MLA regulations at subpart 2883 set application processing
and monitoring fees as follows:
------------------------------------------------------------------------
Processing Monitoring
Category fee fee
------------------------------------------------------------------------
I............................................. $125 $25
II............................................ 275 50
III........................................... 350 75
IV............................................ 600 150
V............................................. 1,000 250
------------------------------------------------------------------------
Based on the field study of more than 600 cases, BLM should have
adjusted the MLA fees in 1987 to:
------------------------------------------------------------------------
Processing Monitoring
Category fee fee
------------------------------------------------------------------------
I............................................. $150 $ 50
II............................................ 225 75
III........................................... 575 250
IV............................................ 750 350
V............................................. Full actual costs.
------------------------------------------------------------------------
Proposed fee amounts. Since the 1986 study, the cost of doing
business has continued to rise. The Consumer Price Index, used to
adjust the communication site rent schedule, and the Implicit Price
Deflator Index, used to adjust other schedules, have risen about 35 and
30 percent respectively. BLM calculated the proposed fee schedule for
FLPMA applications and grants by adjusting the detailed study figures
upward by 30 percent and rounded up to the nearest $10. This is the
proposed fee schedule for processing and monitoring FLPMA right-of-way
applications and grants:
------------------------------------------------------------------------
Processing Monitoring
Category fee fee
------------------------------------------------------------------------
I............................................. $230 $ 80
II............................................ 390 130
III........................................... 750 230
IV............................................ Full reasonable costs
as required.
Master agreement.............................. As negotiated.
------------------------------------------------------------------------
BLM calculated the proposed fee schedule for MLA applications and
grants in the same manner. The proposed fee schedule for these
applications and grants is as follows:
------------------------------------------------------------------------
Processing Monitoring
Category fee fee
------------------------------------------------------------------------
I............................................. $200 $70
II............................................ 290 100
III........................................... 750 330
IV............................................ Full actual costs.
Master agreement.............................. As negotiated.
------------------------------------------------------------------------
BLM sampled a number of cases in 1995. The sampling tended to agree
with the adjusted 1986 study figures. Five Category I cases ranged from
$125 to $510 to process, an average of about $200. Fifteen cases in
Category II ranged from $82 to $700 to process, with an average of
about $390. Only one Category III case was sampled, and its processing
cost was $600. Performing another extensive field cost study, such as
was done in 1986, would not produce sufficient new data to justify its
costs. Adding a ``master agreement'' category may remove about half the
cases which currently fall into Categories I through III.
Annual fee adjustments. The regulations also propose adjusting the
fee schedule for the following calendar year based on the previous
year's change in the Implicit Price Deflator-Gross Domestic Product
(IPD-GDP). BLM will round up changes to the nearest dollar. Review of
other economic indices, such as the Consumer Price Index, discloses
that these do not reflect a sufficiently high labor intensiveness to be
used to adjust the cost recovery fee structure. We believe, however,
that the IPD-GDP more closely reflects the relationship of labor to
other costs and can be used as an adjustment factor. BLM proposes to
use this index,
[[Page 32110]]
measured second quarter to second quarter, to adjust the fixed cost
recovery fees annually. Under the proposed regulations, each year BLM
would revise the fees, make copies of the revised fee schedule
available in BLM offices before the beginning of the next calendar
year, and post the fee schedule on the BLM Home Page on the Internet,
http://www.blm.gov.
Rents for communication site rights-of-way would continue to use
the Consumer Price Index because the rents are based on the population
served. The CPI reflects changes in the urban economy more accurately
than the IPD-GPD does.
If BLM adopts the increased cost recovery fee schedule as proposed,
adjusted for the inflation rate, the fee schedule will be published in
the Federal Register as part of the preamble to the final rule. The
preamble would make clear that the fees would rise each year based on
changes in the IPD-GDP.
If you believe that the proposed cost recovery fee increases are
unreasonable, or not in the public interest, please provide your
rationale and any suggestions you may have for alternative methods of
charging reasonable processing and monitoring fees for FLPMA and MLA
right-of-way applications.
Assignments and renewals. (Proposed subpart 2807). BLM proposes to
use the category fee schedules as the basis for establishing and
recovering the costs of processing assignments and renewals. Currently,
the fee for assignments is $50, and there is no fee for renewals. BLM
proposes to determine the appropriate category based on the estimated
time to process each request. For example, if the estimated time to
process an assignment for a FLPMA right-of-way is no more than 24 work
hours, the cost recovery fee would be the fee for a Category I
application. BLM specifically requests your comments on whether to use
the proposed cost recovery categories for assignments and renewals. If
you oppose the change, please suggest an alternative method of
recovering costs for processing assignments and renewals.
Cost Exemptions and Reductions
Background. Two final rulemakings, one on January 10, 1985, and the
other on September 5, 1986, established BLM's current policies with
respect to cost recovery for MLA grants. These policies are based on
the 1973 amendments to the MLA, which require applicants for MLA
rights-of-way or temporary use permits to reimburse the United States
for all administrative and other costs involved in processing
applications and in monitoring, operating, maintaining, and terminating
the MLA grants. Therefore, cost exemptions and reductions are not
available for MLA rights-of-way, except for those state and local
governments that are exempt from cost recovery under the current
regulations at 43 CFR 2883.1-1(a)(2).
The final rule of July 8, 1987, described BLM's policies associated
with determining the processing and monitoring costs for FLPMA right-
of-way grants. The rule defined the terms ``actual costs,'' which are
the resources expended in processing a right-of-way application and
monitoring the construction, operation, maintenance, and termination of
the project and its facilities. Actual costs, less management overhead,
form the amount to which BLM applies the ``reasonability factors''
listed in section 304(b) of FLPMA. For all but complex projects
(Category V), the reasonability factors have little or no effect on
actual costs. The rulemaking also defined the reasonability factors:
``monetary value of the rights or privileges sought,'' ``public
benefits,'' ``efficiency to government processing,'' and ``other
factors.'' The ``other factors'' definition provides the means for BLM
State Directors to reduce actual processing costs based on a wide range
of special circumstances, including unique instances of public benefits
or services. These reductions generally fall under the broad category
of ``hardship,'' that is, paying full reasonable costs would create an
undue hardship on the applicant.
The rule also established, as a method of computing reasonable
costs, an alternative which represented one percent of construction
costs. This alternative was based on the practice of the state of New
York, which charged corporations a maximum fee of one-half of one
percent of their actual construction costs to process their right-of-
way applications for non-residential projects and a maximum of 2
percent of actual construction costs for residential projects. This fee
included the costs of preparing environmental impact statements and
other processing activities. Finally, the rule exempted federal
agencies and state and local governments and their agencies and
instrumentalities from paying processing and monitoring costs.
Automatic exemptions. BLM considered eliminating the exemptions for
federal, state, and local governments to pay processing and monitoring
costs established by the July 8, 1987, final rule. This exemption,
under the current regulations, does not apply to municipalities that
derive the majority of their revenues from user fees. We decided
against proposing to eliminate the exemption for state and local
governments for several reasons, including the fact that these entities
comprise less than 10 percent of all applicants and grant holders.
Because of their small numbers, eliminating the automatic exemption for
them would not significantly decrease BLM's revenues from cost
recovery. Municipalities that derive the majority of their revenues
from user fees would continue to pay processing and monitoring costs.
Currently, many federal agencies fund the processing of FLPMA
right-of-way applications affecting their lands. The amount they pay is
determined through negotiations. This process does not always produce
consistency across BLM organizational units. BLM proposes to achieve
consistency by assigning each federal project to a category. The
category designation will enable other federal agencies to determine
their costs in advance and will also reduce the administrative
paperwork involved in federal transactions.
Eliminating the one percent alternative. As mentioned previously,
the July 1987 final rule established the payment of up to one percent
of actual construction costs as an alternative method of paying the
reasonable costs of processing right-of-way applications and monitoring
the issued grants. The approach was viewed to have several benefits:
(1) efficiency to both the applicant and BLM by avoiding complex data
collection and by eliminating complex cost calculations, (2) providing
an incentive to BLM to stay under the one percent cost level in
processing and monitoring activities, and (3) giving a readily
available dollar value for establishing a reasonable level of actual
cost reimbursement. The current regulations contain this alternative at
43 CFR 2808.3-1(f).
Although this alternative seemed to have merit at the time, in
practice it has been used only once, in resolving a situation in Public
Service Commission v. Watt. BLM has not done an analyses of why
applicants have not used this approach and will not speculate on the
reasons. We are proposing to eliminate the one percent alternative. If
you believe that we should retain this alternative, please provide the
rationale for doing so in your comments.
``Other factors.'' Current regulations at 43 CFR 2808.5 list a
number of factors which BLM State Directors may use to reduce or waive
processing and monitoring costs. Although the preamble to the July 1987
rule did not specifically state so, the factors are a list
[[Page 32111]]
of what could be termed ``hardship'' situations. BLM considers that
``hardship'' is one of the ``other factors'' which section 304(b) of
FLPMA allows BLM to consider in determining reasonable costs. Examples
of hardship situations include: (1) the project requiring the right-of-
way grant could not be built because the processing and monitoring
costs would be excessive, (2) public health and safety could be
compromised if the right-of-way project were not built, and (3) the
public benefits of the project greatly outweigh the costs. The language
at proposed section 2804.18, paragraph (b), called ``Other
considerations,'' lists possible hardship situations.
The proposed regulations at section 2804.18 attempt to clarify that
the exemptions and reductions listed apply to all FLPMA processing and
monitoring cost categories, not just those having the highest costs
(Category IV applications). In preparing the financial plans required
as part of the information for Category IV applications (see proposed
sections 2804.16(a)(3) for FLPMA applications and 2884.12 for MLA
applications) and in negotiating cost recovery master agreements (see
proposed section 2804.17 for FLPMA applications and section 2884.13 for
MLA applications), you should identify what you expect BLM to pay for
and what you expect to pay for. FLPMA applicants should also identify
any hardship factors that they believe apply to their project. BLM will
consider these factors during negotiations over the final processing
and monitoring costs.
Federal agencies may not qualify for cost reductions under the
hardship factors. They may, however, qualify for reductions under the
reasonability criteria as proposed at section 2804.18.
The following sections describe other proposed changes to the
existing regulations that do not involve fees. The proposed changes
involve a new customer service standard for processing applications,
organizational matters, clarifications of policies relating to rents
for both linear and communication-site rights-of-way, a description of
how the proposed regulations are organized, and when you may appeal BLM
decisions.
Customer Service Standards
Executive Order 12862, ``Setting Customer Service Standards,''
requires federal agencies to provide a standard of customer service
equal to the best in the business. To accomplish this, Executive
agencies should identify the customers that they serve, post customer
service standards and measure results against them, provide customers
with choices in both sources of service and means of delivery and make
information, services and complaint systems easily accessible.
The right-of-way program is committed to providing its customers
with excellent, efficient service. Through a series of internal policy
directives, starting in December 1995, program staff and managers have
streamlined right-of-way application processing by: (1) encouraging
applicants to file applications by fax and to pay by credit cards, (2)
reiterating the processing times stated in Manual sections, (3)
allowing applicants for MLA rights-of-way to file as part of their
applications for a permit to drill, (4) reaching an understanding with
State Historic Preservation Officers as to how BLM will conduct
cultural surveys and the State Historic Preservation Officers will
review applications and recommend provisions to preserve the cultural
values of lands affected by potential rights-of-way, (5) sending
customer service cards to right-of-way customers and requesting that
the customers rate BLM's service in specific areas, and (6) modifying
the financial system to assure that processing and monitoring fees go
directly to the field office that generates the fee.
The proposed regulations at section 2804.20(c) would further assist
the customer service effort by providing applicants with written
notices of when they can expect BLM to process their applications if
processing the application will take longer than the estimated time
periods. This information should assist applicants and grant holders in
planning for constructing or changing their projects.
Hazardous Materials
The proposed regulations would contain language addressing the
storing, transporting, and using of hazardous materials on right-of-way
grants as they relate to the following statutes: the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42
U.S.C. 9601 et seq. (CERCLA); the Resource Conservation and Recovery
Act, 42 U.S.C. 6991 et seq. (RCRA); the Clean Water Act, 33 U.S.C. 1251
et seq.; the Oil Pollution Act, 33 U.S.C. 2701 et seq.; and the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
11001 et seq. CERCLA holds responsible parties liable for the costs of
cleaning up hazardous waste sites. RCRA sets minimum guidelines and
standards for manufacturing and disposal of hazardous and solid wastes.
The current regulations do not address hazardous materials. Because
of the importance of the safe use of rights-of-way and resource
protection, BLM decided to incorporate hazardous material provisions
into the proposed regulations. While most other BLM regulations do not
yet specifically address hazardous materials, BLM concluded that
addressing hazardous materials in the right-of-way regulations was a
suitable beginning. The proposed revisions include the following:
(1) Adding to the definitions section of the regulations at section
2801.5 several terms used in the acts: ``discharge,'' ``hazardous
material,'' and ``release;'' and
(2) Clarifying that there is no maximum limit for strict liability
for damages or injuries resulting from the actual or threatened
discharge or release of hazardous substances, as defined by CERCLA, at
section 2807.12.
These definitions and conditions would apply to part 2880 by cross
reference.
All the proposed changes follow the ``polluter pays'' principle. If
the grant holder is an innocent holder, he will still be held
responsible for all costs and clean up from an accident or the release
of hazardous substances. BLM believes that any other policy would shift
the liability from the holder onto the United States and would result
in less holder accountability.
We intend to add similar program-specific language to other
regulations as they are revised.
Organizational Matters
Regional offices. Utility and industry applicants have suggested
that BLM could shorten processing time for right-of-way applications if
we established one or more ``regional right-of-way offices'' solely for
processing applications involving cost recovery. BLM has not adopted
this approach in the proposed rule because establishing regional right-
of-way offices would fracture the existing interdisciplinary approach
to decisionmaking that BLM uses. Such offices would be understaffed, as
from time to time a variety of specialists are needed for advice on
proposed impacts or mitigation methods. Currently, BLM gets this
expertise from existing BLM offices where the specialists are
performing duties other than processing applications or monitoring
grants.
BLM is exploring the way that we process various applications. We
periodically look at ways to consolidate, simplify, and cut costs when
we process all types of applications. One possible way to cut costs and
maximize resources would be to have a single specialist do all field
examinations of a single site for which multiple
[[Page 32112]]
applications exist. For instance, when an oil and gas lessee needs
approval of an application for permit to drill and a right-of-way for a
road to the drill pad, a single specialist could visit the site and
gather the necessary data to serve the processing of both applications.
BLM welcomes any comments you may have on increasing our efficiency and
cutting the time for processing your applications.
Water power situations. Water power projects require a license from
the Federal Energy Regulatory Commission (FERC) under the Water Power
Act of 1920, as amended. If the project involves public lands, BLM must
also issue a right-of-way grant. There are some exceptions for
relicensing existing projects. FERC can collect costs incurred by it
and other Federal agencies, including BLM, from the water power
applicant or holder. This creates a potential double collection, where
both FERC and BLM could collect from the applicant/holder the costs of
a single project. To prevent this, BLM will only report to FERC those
processing and monitoring costs that are not associated with BLM
actions on the right-of-way application or grant. When a right-of-way
application or grant is not involved, BLM will report all of its costs
associated with a water power application or relicensing to FERC. The
language at proposed section 2804.24 reflects this policy.
Rents
Non-communication site rent payments. Section 504(g) of FLPMA
requires right-of-way grant holders to pay annually, and in advance,
the fair market value of their grant. This amount constitutes the
``rent'' for the grant. Originally, FLPMA allowed BLM to bill grant
holders for more than 1 year if the annual rent was less than $100.
Amendments in 1986 changed the provision to give private individuals
the option of paying annually or at some interval greater than 1 year
if their rent payments exceed $100 per year.
A March 1995 study by the Inspector General of the Department of
the Interior (IG) found that BLM had not established a cost-effective
system for billing annual rents. There was no minimum collection
amount, and BLM billed for all annual rents that exceeded $1 per year.
About 7,700 courtesy notices for bills of $34 or less were sent to
grant holders. The IG further noted that BLM annually sent over 14,000
bills to 21 grant holders. The IG recommended that BLM establish a
minimum rent collection amount and revise the right-of-way regulations
to provide for advance lump-sum payments covering more than 5 years
when the annual rent is less than $100 per year. Even so, a substantial
percentage of the bills for $34 or less represented 5 years' worth of
rent.
Based on the 1986 amendment to FLPMA and the IG's recommendations,
BLM proposes to modify the way that we bill right-of-way grant holders.
BLM must take steps to reduce the administrative workload that field
offices bear in billing grant holders annually for rents, collections
of rents, and proper depositing of the rents. Proposed section 2806.10
states that BLM may bill for rents annually or for periods of more than
1 year. Private individuals whose rent payments exceed $100 per year
may elect to make annual payments rather than lump sum payments.
Current policy requires advance rent payments in 5-year intervals if
the rent amount is less than $100. The proposed rule would change this
policy to allow BLM greater flexibility to address specific situations.
We invite suggestions and comments on how long the advance payment
period should be and what amount the annual rent payment should be to
trigger the advance or lump sum payment.
This proposed rule does not address either minimum rent amounts or
another IG recommendation, that of increasing the rent amounts on the
current linear rent schedule. A joint BLM-Forest Service team is
analyzing these recommendations and other concerns related to linear
rights-of-way.
We request your comments, however, on whether BLM should charge
fees for the late payment of rents. We are considering adding language
to the regulations which would allow us to collect fees for the late
payment of rents because (1) charging a fee for the late payment of
money owed is a normal business practice in the private sector, with
other federal agencies, and with other programs within BLM; (2) BLM is
incurring significant administrative charges for attempting to collect
late rent payments, without being able to recoup any of the
administrative costs; and (3) imposing a late charge may encourage
grant holders to make rent payments when they are due and avoid
possible termination of their grants. When BLM terminates a grant, we
may be able to recover rent payments owed under the Debt Collection
Improvement Act of 1996, 31 U.S.C. 3701 et seq., but cannot recover the
administrative costs associated with our prior collection efforts.
You can find regulatory provisions which allow for BLM's collecting
late payment charges at 43 CFR 2920.8(a)(3) and 43 CFR 4130.8-1(f). You
may review these provisions to assist you in making comments or
suggestions on whether BLM should charge a fee for late payment of
right-of-way rents.
If BLM decides to impose a late payment charge for delinquent
rents, we propose to base the charge on the method described at 43 CFR
4130.8-1(f). If we decide to use a different methodology, we will
describe the proposed method in a separate proposed rule.
Communication site rents. BLM proposes to amend the provisions for
communication site rents as follows:
<bullet> Adding or revising various definitions related to rents
applicable to rights-of-way for communication sites;
<bullet> Clarifying procedures promulgated in a final rule
published in November 1995 as to how BLM will apply the communication
site rent schedule in various circumstances; and
<bullet> Adding a provision that explains how BLM determines the
``population served.'' We specifically invite your comments on whether
or not all rules concerning communication site management should be
segregated into a separate section of the right-of-way regulations. If
our analysis of the comments received on this proposed rule indicates
that a separate section for communication site management is
appropriate, BLM will adopt it in the final rule without any change in
the policies reflected in this proposed rule.
Background for changes to communication site right-of-way rents. On
November 13, 1995, BLM published regulations establishing a rental
schedule for communication uses in the Federal Register. The schedule
was the result of recommendations from the Radio and Television Use Fee
Advisory Committee and the General Accounting Office. BLM intended the
schedule to: (1) establish a fair and consistent approach for
determining rental payments, based upon using facilities at various
communication sites, (2) encourage tenants in a communication facility
to consolidate their separate authorizations into a single
authorization, and (3) reduce the number of disputes concerning rental
values. These changes reduced the costs of obtaining appraisals and
billing costs and minimized BLM involvement in managing the use and
occupancy of facilities.
The rent schedule bases rent on nine categories of communication
uses on BLM-managed lands and groups these uses into three major
categories: broadcast, non-broadcast and other. The ``broadcast''
category includes television, FM radio, rebroadcast devices, and cable
television. The ``non-
[[Page 32113]]
broadcast'' category includes commercial mobile radio service, cellular
telephone, private mobile communications, common carrier, and microwave
communications. The ``other'' category includes small, unobtrusive,
low-power uses serving small numbers of customers. Rents correlate with
the population of the community where the facility is located or that
it serves, or both. BLM uses the Rand McNally Commercial Atlas and
Marketing Guide to determine the population size of communities of
50,000 or more. For communities of less than 50,000 people, BLM uses
the category of use and the most recent Census Bureau census.
Before BLM established a schedule for communication site right-of-
way rentals, all such rents were determined through appraisal. All uses
within a facility generally required a separate right-of-way
authorization, and BLM appraised each use separately. Appraisals were
expensive and needed frequent updating to reflect changes in fair
market value. BLM administers approximately 3,200 rights-of-way for
communication sites, half of which pay no rent because they are exempt
under statutory and regulatory provisions. By implementing the rent
schedule, BLM no longer bills rent on an individual user basis. BLM now
requires only the facility owner to have an authorization for multiple
use occupancy and bases the rent on the highest value use in the
facility, plus 25 percent of the scheduled rent for each of the other
uses in, or associated with, the facility for which rent is to be paid.
The rent schedule identifies nine categories of use and nine population
strata. Uses serving larger populations generally have higher
associated rent values, as compared with those same uses serving
smaller populations.
BLM's rent schedule for rights-of-way devoted to communication uses
became effective on December 13, 1995. BLM decided not to implement the
new schedule until January 1, 1997, so that we could properly train
field personnel to apply it and could resolve any outstanding policy
issues. The Forest Service adopted a similar schedule through a policy
published in the Federal Register on October 27, 1995. Nineteen ninety-
seven was the first year of BLM's 5-year phase-in period for the new
schedule. During this year BLM received several questions from affected
grant holders about the schedule, but there were no protests filed that
resulted in appeals to IBLA. BLM and the Forest Service have jointly
developed policies and procedures to ensure that both agencies
consistently apply the schedule under similar circumstances, regardless
of which agency authorizes the communication use.
The changes contained in this proposed rule modify the regulatory
text to reflect what has been implemented through internal BLM and
Forest Service policy in the last 2 years. Unless otherwise specified,
these proposed regulatory revisions only clarify how BLM will apply the
schedule in various circumstances and will ensure that the schedule is
applied fairly and consistently for all uses and holders of
communication facilities located on BLM-managed lands. The proposed
revisions do not change the rental values assigned to the uses or
population strata of the original schedule.
The proposed regulations and policies are consistent with the
Telecommunications Act of 1996, 47 U.S.C. 332 note, and the various
General Services Administration government-wide policy bulletins on
determining the locations of telecommunications facilities, including
commercial antennas, on public lands.
New or revised definitions. (Section 2806.5). These definitions
would affect subpart 2806 only. BLM would:
<bullet> Add new definitions for ``commercial purpose,''
``communication use rent schedule,'' ``facility manager,'' ``facility
owner,'' ``reselling,'' and ``site'; and
<bullet> Revise the definitions for ``customer,'' ``tenant,'' and
``other communication uses'' category.
Adding a definition for ``commercial purpose'' would establish the
condition that must exist before BLM will charge rent. Adding a
definition for ``communication use rent schedule'' would identify all
the uses and population strata that are included in the rent schedule.
The proposed regulations use two new terms, ``facility manager''
and ``facility owner.'' A facility manager owns a communication
facility on public land, leases space to other tenants in the facility,
and has a communications authorization, usually a lease, but does not
have his or her own communications equipment in the facility. A
``facility owner'' owns a communication facility on public land, may or
may not lease space to other tenants in the facility, and has a
communications authorization, usually a lease, but has his or her own
communications equipment within the facility. The difference is that
the facility manager does not operate communication equipment for his
or her own use; the facility owner does. BLM is introducing these terms
because we charge rent only to those entities who hold authorizations.
Tenants and customers do not ordinarily pay rent to BLM.
Adding a definition for ``reselling'' is necessary, as reselling is
a critical component for determining whether an occupant is considered
a tenant, subject to rent, or a customer, not subject to rent.
Amending the definition of ``other communication uses, within the
overall definition of ``communication use rent schedule,'' to delete
the reference to passive reflectors as an example of an ``other
communication use'' is consistent with the intent of the November 13,
1995, preamble to the communication site regulations (60 FR 57068) and
with the Forest Service definition for this category. Amending the
definition of ``tenant'' to include the words ``or broadcast'' would
identify television or radio broadcast uses as a commercial activity
subject to rent when located in another's facility and would make it
consistent with the Forest Service definition of this term. Revising
the definition of ``customer'' to incorporate the changes for the
definition of ``tenant'' and to clarify the term would make it
consistent with the Forest Service definition of the term. Under the
proposed definition, BLM would exclude private and internal
communication uses located in another holder's facility, and not just
located in a commercial mobile radio service facility, for the purposes
of calculating rent.
Other changes proposed for applying the communication site use rent
schedule. (Proposed sections 2806.17 through 2806.27) BLM would remove
the statement at section 2803.1-2(d) that the rent schedule does not
apply to public telecommunication service operators providing public
television or radio broadcast services and who are granted a waiver or
reduction of rent. A similar statement appears, however, in proposed
section 2806.11. BLM may still grant reductions of rent for these uses
if the provisions of proposed section 2806.12 apply.
Section 2803.1-2(d)(2)(ii) now provides for a review of right-of-
way rents on a case-by-case basis 10 years after BLM issues the grants,
and no more than every 5 years after that, to determine whether rents
are appropriate. Such a request amounts to asking BLM to conduct an
appraisal, estimated to cost $2,000 each in 1995. If all holders were
to make such a request, right-of-way rental determinations for
communication uses would revert to the methods used before November
1995. This would greatly
[[Page 32114]]
increase costs (an estimated $3 million for the 1,500-plus
authorizations now subject to rent) and would negate the administrative
savings envisioned by using the new rent schedule. Proposed section
2806.17(a) directs BLM to review the rent schedule every 10 years to
ensure that the schedule reflects a rational fair market value estimate
and eliminates the provision that allows each holder to request one or
more reviews after 5 years.
Proposed sections 2806.17 through 2806.27 clarify how BLM would
apply the schedule in the various combinations of facility owners,
tenants, customers, and the types of uses and populations served by
these uses. These proposed sections would enable users and agency
personnel to fully understand how to apply the schedule, given the
varied circumstances that can exist. These provisions would not alter
any of the basic provisions of the current rental schedule. This
addition provides a basis for applying the communication use rent
schedule fairly and consistently by both BLM and the Forest Service.
One proposed change is to add the term ``site'' to the definitions
section at 2806.5 to clarify ``site'' and ``facility.'' These terms are
used throughout the proposed sections, particularly at proposed section
2806.19, How will BLM determine the rent for a single-use communication
facility? The term ``site'' is used to refer to the area, such as a
mountain top, which contains one or more communication facilities. The
term ``facility'' is used to refer to the authorized improvements
associated with a site, e.g., TV, radio, or cell phone antennae. A
single site may accommodate several facilities for a variety of
communication uses, some facilities serving metropolitan areas, such as
TV broadcast towers and antennae, and some serving local areas, such as
cellular phone antennae. The facilities located at a particular site
are there because the site allows the facilities to serve a particular
market or geographical area effectively.
Appeals section. The proposed regulations eliminate the existing
subpart on Appeals, subpart 2804, and propose to replace it with
references to the right of appeal at each point where you may appeal a
decision. If an appeal is authorized, the proposed rule references
``part 4.'' This proposed modification is meant only to improve the
organization of the rule. It is not intended to add or remove appeal
opportunities. Current regulations also contain references to the right
of appeal at each appealable decision point. BLM has issued proposed
regulations to revise and consolidate its appeals regulations at part
1840 and 1850 into a revised part 1840. (See 61 FR 54120 through 54141,
October 17, 1996.) If or when BLM promulgates revised appeal
regulations, this final revised rule will reflect them.
Reorganizing the Regulations
The proposed rule would reorganize the material and present it in
the order in which prospective applicants for rights-of-way across
public lands would need it. The proposed regulations also give
information about what is expected of right-of-way grant holders and
how BLM monitors the grants. This restructuring is meant to make the
regulations simpler to understand and is not meant to have any
substantive effect.
BLM proposes to adopt the preferred numbering system of the Office
of the Federal Register. The existing regulations indicate one section
as subordinate to another by using hyphens in the number. For example,
sections 2808.3-1 and 2808.3-2 are subordinate to section 2808.3. In
the proposed rule, sections are arranged sequentially, beginning with
the number ``0.'' For example, section 2804.10 is followed by
subordinate sections 2804.11, 2804.12, 2804.13, and so forth. In some
cases, these leading sections may serve only as main headings.
The following cross-reference table describes the major
organizational changes. Use the table as a guide to help you find where
provisions found in the current regulations appear, in either an
unchanged (except for style) or substantively revised form, in the
proposed regulations. Proposed new provisions and policy appear in the
text under both the GENERAL and SECTION-SPECIFIC DISCUSSIONS in the
preamble, not in the table that follows.
------------------------------------------------------------------------
Where is it now? Where would it go?
------------------------------------------------------------------------
Section 2800.0-1, Purpose.... Eliminated as redundant to material in
section 2801.7, What is the scope of
these regulations?
Section 2800.0-3, Authority.. Section eliminated. Authority appears in
introductory material at the beginning
of part 2800 under ``Authority''
heading.
Section 2800.0-5, Definitions Section changed and renumbered as section
2801.5, What definitions do I need to
know to understand these regulations?
Minor changes in definitions to reflect
plain language writing style.
Section 2800.0-7, Scope...... Text streamlined, reworded and renumbered
to appear in two sections: 2801.7, What
is the scope of these regulations? And
2801.8, Are there any rights-of-way
outside the scope of these regulations?
Section 2800.0-9, Information Text streamlined and moved to new section
collection. 2801.9, Does BLM have the authority to
ask me for the information required in
these regulations?
Section 2801.1-1, Nature of Text streamlined, reworded, and moved to
right-of-way interest. proposed section 2805.12, What rights
does the grant convey?, and 2805.13,
What rights does the United States
retain? References to temporary use
permits removed, as BLM proposes to
eliminate these instruments.
Section 2801.1-2, Reciprocal Text streamlined, reworded, and moved to
grants. proposed section 2805.13, What rights
does the United States retain?,
paragraph (d), as a potential condition
of issuing a grant.
Section 2801.2, Terms and Text streamlined, reworded, and moved to
conditions of grants. proposed section 2805.12, What rights
does the grant convey?, as follows:
(a)(1) to paragraph (c)(1); paragraph
(a)(2) to paragraph (c)(8); paragraph
(a)(3) to paragraph (c)(2); paragraph
(a)(4) to paragraph (c)(3); paragraph
(b)(1) to paragraph (c)(7)(i); paragraph
(b)(2) to paragraph (c)(7)(ii);
paragraph (b)(3) to paragraph
(c)(7)(iii); paragraph (b)(4) to
paragraph (c)(7)(iv); paragraph (b)(5)
to paragraph (c)(7)(v); and paragraph
(b)(6) to paragraph (c)(7)(vi).
Section 2801.3, Unauthorized Text streamlined and moved to proposed
use, occupancy, or subpart 2808, What do I need to know
development. about trespass?
Section 2801.4, Rights-of-way Text streamlined and moved to proposed
issued on or before October section 2801.7, What is the scope of
1, 1976. these regulations?
[[Page 32115]]
Section 2802.1, Text streamlined and moved to proposed
Preapplication activity. sections as follows: paragraph (a) to
2802.10, What lands are available for
FLPMA rights-of-way?; paragraph (b) to
proposed section 2804.13, Will BLM keep
my information confidential?; paragraph
(c) to proposed section 2804.14, Is
there a filing fee for my application?;
paragraph (d) to proposed section
2804.25, What can I do on the proposed
right-of-way while BLM is processing my
application?; and paragraph (e) to
proposed section 2804.10, What should I
do before I file my application?
Section 2802.2-1, Application Text streamlined and moved to proposed
filing. section 2804.11, Where do I file my
application?
Section 2802.2-2, Text streamlined, reworded, and moved to
Coordination of applications. proposed section 2804.12, What
information do I need to submit in my
application?, paragraph (b).
Section 2802.3, Application Text streamlined, reworded, and moved to
content. proposed section 2804.12, What
information do I need to submit in my
application?
Section 2802.4, Application Text streamlined, reworded and moved to
processing. proposed sections as follows: paragraph
(a) to proposed section 2804.21, Can BLM
reject my application?, for paragraphs
(1) through (5), and to proposed section
2804.20, How will BLM process my
application?, for the acknowledgment;
paragraph (b) eliminated because BLM
proposes to eliminate temporary use
permits and to replace them with short-
term right-of-way grants; paragraph (c)
to proposed section 2804.12, What
information do I need to submit in my
application?; paragraphs (d), (e) and
(h) to proposed section 2804.20, How
will BLM process my application?;
paragraph (f) to proposed section
2805.13, What rights does the United
States retain?, paragraph (e); and
paragraph (g) to proposed section
2805.11, When is the grant effective?
Section 2802.5, Special Paragraph (a) eliminated because the
applications procedures. grace period has expired; paragraph (b)
eliminated as redundant of text in other
parts of the regulations.
Section 2803.1-2, Rental..... Text streamlined and moved to proposed
subpart 2806, What information do I need
to know about rents for right-of-way
grants?, where there are separate
discussions of linear (sections 2806.14
through 2806.16, communication site
(2806.17 through 2806.27) and other
(2806.28) rents. Text also clarifies
treatment of different types of
communication sites, based on the
November 1995 regulations.
Section 2803.1-3, Competitive Text significantly streamlined and moved
bidding. to proposed section 2804.23, Do I always
have to submit an application for a
right-of-way to receive a grant?
Procedural detail removed as more
appropriate for internal agency guidance
and to allow greater flexibility in
using competitive bidding.
Section 2803.1-4, Bonding.... Text reworded and moved to proposed
section 2805.10, What rights does the
grant convey?, paragraph (c)(6).
Section 2803.1-5, Liability.. Text streamlined, reworded and moved as
follows: paragraph (a) to proposed
paragraph (a) of section 2807.12, For
what am I liable?; paragraph (b) to
proposed paragraph (b) of section
2807.12; paragraph (c) to proposed
paragraph (d) of section 2807.12;
paragraph (d) to proposed paragraph
(c)(6) of section 2807.12; paragraph (e)
to proposed paragraph (f) of section
2807.12; paragraph (f) to proposed
section 2807.13, What liabilities do
State and local governments have?;
paragraph (g) to proposed paragraph (c)
of section 2807.12; paragraph (h) to
proposed paragraph (f) of section
2807.12; and paragraph (i) to proposed
paragraph (e) of section 2807.12.
Section 2803.2, Holder Text streamlined, reworded and moved to
activity. proposed sections as follows: paragraph
(a) to proposed section 2807.10, When
can I start activities under my grant?;
and paragraph (b), (c) and (d) to
proposed section 2807.11, When must I
contact BLM?
Section 2803.3, Immediate Text streamlined, reworded and moved to
temporary suspension of proposed section 2805.17, Can BLM
activities. temporarily suspend my activities to
protect public health and safety and the
environment without providing an
administrative hearing?
Section 2803.4, Suspension Text streamlined, reworded, and moved as
and termination of right-of- follows: paragraphs (a), (b), (c) and
way grants. (d) to proposed section 2807.16, Can BLM
terminate or suspend my grant?;
paragraph (d) to proposed section
2807.17, How will I know that BLM
intends to suspend or terminate my
grant?, paragraph (a); and paragraph (e)
to proposed paragraph (c) of section
2807.16, Can BLM terminate or suspend my
grant?
Section 2803.1-4, Disposition Text streamlined, reworded and moved to
of improvements upon proposed section 2807.18, What happens
termination. to any improvements on my grant when it
terminates?
Section 2803.5, Change in Text streamlined, reworded, and moved to
Federal jurisdiction or proposed section 2807.14, What happens
disposal of lands. if BLM transfers management of the land
on which my grant is located to another
Federal agency or outside of public
ownership?
Section 2803.6-1, Amendments. Text streamlined, reworded, and moved to
proposed section 2807.19, When must I
amend my application or grant?
Section 2803.6-2, Amendments Text streamlined, reworded, and moved to
to existing railroad grants. proposed paragraph (c) of section
2807.19, When must I amend my grant?
Section 2803.6-3, Assignments Text streamlined, reworded, and moved to
proposed section 2807.20, May I assign
my grant?
Section 2803.6-4, Text streamlined, reworded, and moved to
Reimbursement of costs for proposed section 2807.21, What will BLM
assignments. charge for reviewing a request for
assignment?
Section 2803.6-5, Renewals of Text streamlined, reworded, and moved to
right-of-way grants and proposed section 2807.22, Can I renew my
temporary use permits. grant?
Section 2804.1, Appeals...... Subpart eliminated. Information about
actions which you may appeal appears in
the sections to which it applies.
Section 2806.1, Corridor Text streamlined and more simply worded.
designation. Material appears in renumbered section
2802.10, What lands are available for
right-of-way grants?
Section 2806.2, Designation Text streamlined and reworded. Material
criteria. appears in renumbered section 2802.11,
How does BLM designate corridors?
Section 2806.2-1, Procedures Text streamlined, reworded, and moved to
for designation. section 2802.10, What lands are
available for right-of-way grants?
[[Page 32116]]
Section 2807.1, Application Text streamlined, reworded, and moved to
filing. proposed section 2809.10, Can Federal
agencies get a right-of-way grant?
Section 2807.1-1, Document Text streamlined, reworded, and moved to
preparation. proposed section 2805.10, What does a
grant contain?
Section 2807.1-2, Reservation Text streamlined, reworded, and moved to
termination and suspension. proposed section 2807.16, Can BLM
terminate or suspend my grant?
Section 2808.1, General...... Text streamlined, reworded, and moved to
proposed section 2804.14, Is there a
filing fee for my application?,
paragraph (a).
Section 2808.2-1, Application Text streamlined, reworded, and moved to
categories. proposed section 2804.14, Is there a
filing fee for my application?,
paragraph (c).
Section 2808.2-2, Category Text streamlined, reworded, and moved to
determination. proposed section 2804.14, Is there a
filing fee for my application?,
paragraph (e) and (g).
Section 2808.3-1, Application Text streamlined, reworded, and moved to
fees. proposed sections as follows: paragraph
(a) to proposed section 2804.14, Is
there a filing fee for my application?,
paragraph (b); paragraph (b) to proposed
section 2804.14, paragraph (f).
Paragraphs (c), (d) and (e) to proposed
section 2804.16, How will BLM process my
Category IV application?; paragraph (f)
to proposed section 2804.18, Can BLM
reduce my reimbursement costs?,
paragraph (a)(2); paragraph (g) to
proposed section 2804.18, paragraph (e);
and paragraph (i) to proposed section
2804.18, paragraph (d).
Section 2803.3-2, Periodic Text streamlined, reworded, and moved to
advance payments. proposed sections as follows: paragraphs
(a) and (b) to proposed section 2804.16,
How will BLM process my Category IV
application?, paragraph (b); paragraph
(c) to proposed section 2804.14, Is a
filing fee for my application?,
paragraph (g); and paragraph (d)
eliminated, as this is redundant of
other sections, such as 2804.14.
Section 2803.3-3, Costs Text streamlined, reworded, and moved to
incurred for a withdrawn or proposed section 2804.22, Do I owe any
denied application. money if BLM rejects my application or I
withdraw my application?
Section 2803.3-4, Joint Text streamlined, reworded, and moved to
liability for payments. proposed section 2804.19, What happens
if there are two or more competing
applications for the same facility or
system?
Section 2808.4, Reimbursement Text streamlined, reworded, and moved to
of costs for monitoring. proposed section 2805.14, What are
monitoring fees?
Section 2808.5, Other cost Text streamlined, reworded, and moved to
considerations. proposed section 2804.18, Can BLM reduce
my reimbursement costs?
Section 2808.6, Action Text consolidated with that in current
pending decision and appeal. section 2808.5, reworded and moved to
proposed section 2804.18, Can BLM reduce
my reimbursement costs?
Section 2880.0-3, Authority.. Section eliminated. Material appears as
``Authority'' in the introductory
material at the beginning of part 2880.
Section 2880.0-5, Definitions Minor changes in definitions to reflect
plain language writing style. Definition
of ``public lands'' in proposed section
2801.5 replaced by definition of
``Federal lands'' in proposed section.
Section renumbered as 2881.5, What
definitions do I need to know to
understand these regulations?
Section 2880.0-7, Scope...... Text reworded into plain language and
appears in two proposed sections:
2881.7, What is the scope of these
regulations? And 2881.8, What grants are
not covered by these regulations?
Section 2881.1-1, Nature of Text streamlined, reworded, and moved to
right-of-way interest. proposed section 2885.11, What are the
terms and conditions of the grant or
permit? Cross references proposed
section 2805.10, for terms and
conditions in common with non-MLA rights-
of-way.
Section 2881.1-2, Nature of Same as entry above at section 2881.1-1.
temporary use permit.
Section 2881.1-3, Reservation Text streamlined and moved to proposed
of rights to the United section 2885.12, What are the terms and
States. conditions of the grant or permit?,
which cross references proposed section
2805.13, since many terms and conditions
are common to both types of rights-of-
way. Proposed section 2885.12 emphasizes
only those terms and conditions which
are MLA-specific.
Section 2881.2, Terms and Text streamlined and moved to proposed
conditions, interest granted. section 2885.12, What are the terms and
conditions of the grant or permit?
Section 2881.3, Unauthorized Text streamlined and moved to proposed
use, occupancy or subpart 2888, What general information
development. do I need to know about trespass?
Contains a cross reference to proposed
subpart 2808.
Section 2882.1, Text streamlined, reworded, and moved to
Preapplication activity. proposed sections as follows: paragraph
(a) to proposed section 2884.10, What
should I do before I file my
application?: paragraph (b) eliminated
as redundant of regulatory text
elsewhere, including subpart 2883, What
qualifications do I need to have to hold
an MLA grant or permit?; paragraph (c)
to proposed section 2884.12, Is there a
filing fee for my application?; and
paragraph (d) to proposed section
2884.22, What may I do on the proposed
right-of-way while BLM is processing my
application?
Section 2882.2-1, Application Text streamlined, reworded, and moved to
qualifications. proposed sections as follows: paragraphs
(a) and (b) to subpart 2803, What
qualifications do I need to have to hold
an MLA grant or permit?; and paragraph
(c) to proposed section 2884.16, What do
I file my application for an MLA grant
or permit?
Section 2882.2-2, Application Text streamlined, reworded, and moved to
filing. proposed section 2884.16, Where do I
file my application for an MLA grant or
permit?
Section 2882.2-3, Application Text streamlined, reworded, and moved to
content. proposed section 2884.11, What
information do I need to provide in my
application?
[[Page 32117]]
Section 2882.3, Application Text streamlined, reworded, and moved to
processing. proposed sections as follows: paragraphs
(a), (b), (f) and (g) to proposed
section 2884.18, How will BLM process my
application?; paragraph (c) to proposed
section 2884.11, Can BLM reject my
application?; paragraphs (d) and (h) to
proposed section 2884.19, Can BLM ask me
for additional information?; paragraph
(e) eliminated as redundant of other
text; paragraphs (i) and (j) to proposed
section 2884.23, When will BLM issue the
grant or permit?; paragraphs (k) and (l)
to proposed section 2885.10, When is the
MLA grant or permit effective?; and
paragraph (m) to proposed section
2885.11, What are the terms and
conditions of the grant or permit?
Section 2882.4, Interagency Text eliminated as redundant of other
agreements. text in other sections, such as proposed
sections 2884.10 and 2884.18.
Section 2883.1-1, Cost Text streamlined, reworded, and moved to
reimbursement. proposed section 2884.12, Is there a
filing fee for my application?
Section 2883.1-2, Rental Text streamlined, reworded, and moved to
payments. proposed section 2885.12, How much does
it cost to hold a grant or permit? Cross
references to proposed subpart 2806--
What information do I need to know about
rents for MLA right-of-way grants?
Section 2883.1-3, Bonding.... Text streamlined, reworded, and moved to
proposed section 2885.11, What are the
terms and conditions of the grant?, as a
condition of issuing the grant.
Section 2883.1-4, Liability.. Text streamlined, reworded, and moved to
proposed section 2886.15, For what am I
liable?, and proposed section 2885.13,
Who is liable for payments?
Section 2883.1-5, Common Text streamlined and incorporated as a
carriers. provision of the grant at proposed
section 2885.11, What are the terms and
conditions of the grant or permit?,
paragraph (c).
Section 2883.1-6, Export..... Text streamlined and incorporated as a
provision of the grant at proposed
section 2885.11, What are the terms and
conditions of the grant or permit?,
paragraph (b) on the terms and
conditions of use.
Section 2883.2, Holder Text streamlined, reworded, and moved to
activity. proposed sections as follows: paragraph
(a) to proposed section 2886.11, Who
regulates my activities?; paragraphs (b)
and (c) to proposed section 2886.13,
When must I contact BLM?; paragraphs
(d), (e) and (f) to proposed section
2887.10, What conditions require
amending a grant?
Section 2883.3, Construction Text streamlined, reworded, and moved to
procedures. proposed section 2886.10, When can I
start activities under my grant or
permit?
Section 2883.4, Operation and Text streamlined and consolidated with
maintenance. existing section 2883.3, Construction
procedures, into proposed section
2886.10, When can I start activities
under my grant or permit?
Section 2883.5, Immediate Text streamlined, reworded, and moved to
temporary suspension of proposed section 2886.18, When can BLM
activities. terminate or suspend my grant or permit?
Section 2883.6-1, Suspension Text streamlined, reworded, and moved to
and termination of permits. proposed section 2886.17, When can BLM
terminate or suspend temporary use
permits?, which cross references
proposed sections 2807.15 and 2807.16.
Section 2883.6-2, Suspension Section eliminated, as temporary use
and termination of temporary permits are covered in proposed section
use permits. 2886.17, When can BLM terminate or
suspend temporary use permits?
Section 2883.7, Change in Text streamlined, reworded, and moved to
jurisdiction or disposal of proposed section 2886.16, What happens
lands. if BLM transfers management of the land
on which my grant is located to another
agency or outside public ownership?
Section 2883.8, Restoration Text streamlined, reworded, and
of Federal lands. consolidated within proposed section
2885.11, What are the terms and
conditions of my grant or permit?, as a
provision of the grant or permit, cross
referenced to proposed subpart 2805--
What terms and conditions do grants
contain?
Section 2884.1, Appeals...... Section eliminated. Right of appeal noted
in text where appealable action is
discussed.
Section 2887.0-3, Authority.. Section eliminated. Act cited in
``Authority'' section as heading in the
introductory material before part 2880
listings begin.
------------------------------------------------------------------------
Additional reorganization may occur as a result of the public
comments received. The preamble to the final regulations will address
any additional reorganization of the regulatory text made as a result
of public comments.
Section-Specific Discussions
The material in this section describes proposed changes affecting a
single section and policies relating to the proposed changes. It also
describes new sections. Sections which consist entirely of language
rephrased from material in the current regulations without any other
changes are not discussed.
Part 2800
Section 2801.5, What definitions do I need to know to understand
these regulations? The discussions below pertain only to those
definitions proposed for change or proposed to be added.
The existing terms ``public service provided, ``cost incurred for
the benefit of general public interest,'' ``monetary value of the
rights and privileges sought,'' ``actual costs,'' ``management
overhead,'' and ``efficiency to Government processing,'' found at
section 2800.0-5, would be incorporated into section 2804.18, Can BLM
reduce my reimbursement costs?, as factors which BLM may consider in
determining whether or not to reduce the processing fee for all
categories of applications, including Category IV applications. The
terms ``road use, amortization and maintenance charges'' and ``written
demand'' would be removed because they are no longer used.
Three new terms, ``discharge,'' ``hazardous material,'' and
``release'' would be added to be consistent with the provisions of the
Clean Water Act and BLM's hazardous materials policies with respect to
the right-of-way program. BLM complies with these laws, but the current
regulations do not explicitly address their requirements. The terms
``discharge'' and ``release'' would have the meanings given at section
1321(a)(2) of the Clean Water Act and section 9601(22) of CERCLA,
respectively.
The new term ``hazardous material'' would cover the following
substances or materials:
[[Page 32118]]
(1) Any substance or material defined as a ``hazardous substance''
under CERCLA at 42 U.S.C. 9601(14),
(2) Any regulated substance in underground storage tanks, as
defined by the Resources Conservation and Recovery Act (RCRA) at 42
U.S.C. 6991 et seq.,
(3) ``Oil,'' as defined in the Clean Water Act at 33 U.S.C. 1321(a)
and the Oil Pollution Act at 33 U.S.C. 2701 et seq., and
(4) Other substances defined and regulated as ``hazardous'' by
applicable federal, state and local law.
BLM intends to use the term ``hazardous material,'' rather than
``hazardous substance,'' because the term is broader. Right-of-way
holders, including oil and gas pipeline companies, use, store or
transport various hazardous materials across public lands. BLM seeks to
protect the public lands from oil discharges and releases. The broad
definition also aligns with BLM's responsibility to minimize damage to
scenic and scientific values and fish and wildlife habitat, to protect
the environment from impacts resulting from issuing and using right-of-
way grants, and to protect the public lands from undue degradation.
The new term ``field examination'' defines one of the factors that
BLM will use to determine the category upon which to base processing
and monitoring costs. BLM proposes to base the definition on the number
of vehicles, rather than the number of people occupying the vehicles,
because we believe that measuring costs on the basis of trips will
encourage BLM to combine trips and use our expertise most efficiently.
You should compare the term ``public land'' at proposed section
2801.5 to the term ``federal land'' at proposed section 2881.5, What
definitions do I need to know to understand these regulations? The
lands available for right-of-way grants under FLPMA are different from
the lands available for grants and temporary use permits under the MLA.
Lands under BLM jurisdiction are called ``public lands'' for the
purposes of FLPMA. For the purposes of the MLA, the term ``federal
lands'' includes both lands under BLM jurisdiction and under the
jurisdiction of other federal agencies, state governments, and private
individuals (if the minerals were reserved to the United States.) Under
the MLA, BLM only issues grants on federal lands which are under the
jurisdiction of BLM or when a proposed use involves two or more other
federal agencies. Lands in the National Park Service System are
statutorily excluded from both MLA and FLPMA because they are
administered by the National Park Service and are generally not subject
to non-Park Service uses. Other lands excluded from right-of-way use
under both FLPMA and MLA are lands located on the Outer Continental
Shelf and those held in trust for Aleuts, Eskimos, and Indians.
The proposed regulations continue to define the terms ``right-of-
way'' and ``grant'' separately. The term ``right-of-way'' describes the
physical feature, the land, upon which the holder is exercising the
right to use or traverse the right-of-way. The term ``grant'' describes
the instrument (easement, lease, license, or permit) which gives the
holder authority to use or traverse the land for right-of-way purposes.
Although FLPMA uses the term ``right-of-way'' to describe both the land
and the instrument, in practice using the term in both ways has proven
confusing. The phrase ``authorizing the use of a right-of-way over,
upon, under or through public lands for construction, operation,
maintenance and termination of a project'' would be dropped from the
definition of ``right-of-way grant'' because it is redundant of
material found in the definition of the term ``right-of-way.'' The term
``grant'' does not imply the conveyance of the title.
The term ``temporary use permit'' would be removed and replaced by
a definition for ``temporary use.'' The term ``temporary use''
signifies BLM's intent to issue short-term grants issued under part
2800, when the use is of a temporary nature. We make this proposal
because, in practice, the same provisions apply to both use permits and
grants and because processing times for the two documents are similar.
The only difference between temporary use permits issued under part
2800 and grants is duration. The proposed change would also eliminate
confusion caused by using the term permit for both short-term grants
and permits for other uses authorized under part 2920. We are unable to
propose this change for rights-of-way issued under part 2880 because
the MLA specifically allows for temporary use permits. Therefore,
section 2881.5 retains a definition for ``temporary use permit.''
Section 2801.10, Severability. This new section would describe the
legal principle of ``severability'' and apply it to the regulations in
part 2800. Under severability, if any portion of these regulations were
found invalid as to a particular set of circumstances or particular
people, the remaining portions of the regulations would remain valid
and BLM could enforce them separately and legitimately. This principle
has always applied to the regulations but is stated here for
information and clarity.
Section 2802.10, What lands are available for right-of-way grants?
This section combines and retains the information found in the current
regulations at sections 2806.1, Corridor designation, and 2806.2-1,
Procedures for designation. It explains that the availability of land
for right-of-way use is tied to BLM's land-use planning process, which
may designate corridors and avoidance, exclusion and open areas.
Although BLM designates right-of-way corridors and issues grants within
these corridors to the maximum extent practical, it is not always
possible to restrict uses to designated corridors, in cases such as
rights-of-way connecting wells, residences, and buildings to existing
facilities.
New paragraph (c) suggests that you visit the BLM office nearest
you before you file an application for a right-of-way grant. During the
visit you can learn whether the land that you want to use is available,
what the qualifications are for holding a grant, what the application
requirements are and how long it may take BLM to process your request.
You can also learn if other federal and state agencies need to be
involved. (See also the discussion at proposed section 2804.10, What
should I do before I file my application?)
Section 2802.11, How does BLM designate corridors? This section
contains material currently found in the regulations at section 2806.2,
Designation criteria. The proposed rule would add two new criteria:
transportation and utility corridor studies developed by user groups
(paragraph (h)) and existing transportation and utility corridors that
are capable of accommodating additional compatible uses without further
review (paragraph (j)). Experience has shown that BLM managers use
these two factors, in addition to the others, in making decisions about
siting right-of-way corridors.
Subpart 2803, What qualifications must I meet to get a right-of-way
grant? The proposed regulations contain four new sections-- 2803.10,
Who can hold a grant?; 2803.11, Must I submit proof of my
qualifications with my application?; 2803.12, Can other people act on
my behalf?; and 2803.13, What happens to my grant if I die?--with
information about who may hold a grant. This information has not
appeared in the regulations at part 2800 since 1982, when BLM decided
to eliminate it and place it on the application form, SF-299. We
believe
[[Page 32119]]
that placing the qualifications information back in the regulations
will make it easier for individuals and groups to find information
about BLM's right-of-way program.
Section 2804.10, What should I do before I file my application?
This proposed section begins the completely revised subpart about
applying for grants. It contains a streamlined version of the material
currently found in section 2802.1, Preapplication activity, paragraphs
(a) and (e). BLM encourages anyone interested in obtaining a right-of-
way grant across public lands to visit the nearest BLM office to get
information about the right-of-way program, lands available for right-
of-way grants, and other factors affecting their applications. Visiting
BLM before filing your application may shorten the time that it takes
BLM to process your application and determine whether or not to issue a
grant. At this meeting, BLM may be able to provide you with an estimate
or informal determination of what it may cost to process your
application.
Section 2804.12, What information do I need to submit in my
application? Currently, this information is contained in several
subparts, including 2802 and 2808. BLM intends that this subpart
provide all the information that you may need to apply for a grant
issued under the provisions of FLPMA. The subpart presents the
necessary information in a sequence in which you might ask questions
about the application procedures.
The new language in this section would specify the form number of
the application, SF-299, and give a brief description of the
information that the form requires. This description is a condensed
version of the list of information in the current regulations at
section 2802.3, paragraph (a).
Section 2804.14, Is there a filing fee for my application? This
proposed section contains information from several sections of subpart
2808, including section 2808.1, General; 2808.2-1, Application
categories; 2808.2-2, Category determination; and 2808.3-1, Application
fees. The major changes contained in this section are discussed in the
``Cost Recovery Provisions'' section in the GENERAL DISCUSSION portion
of this preamble. These include: (1) Increasing application processing
and grant monitoring fees to reflect the reasonable costs of processing
and monitoring activities, (2) providing a mechanism to adjust these
fees based on changes in the ``Implicit Price Deflator-Gross Domestic
Product,'' (3) eliminating the automatic exemption from paying the
reasonable costs of processing applications and monitoring grants for
federal agencies, (4) eliminating the 1 per cent of construction costs
alternative to paying full reasonable processing costs; (5) reducing
the number of cost recovery categories for both FLPMA and MLA
applications; and (6) adding a new category, ``master agreement,'' to
cover multiple applications in a limited geographic area. Otherwise,
BLM proposes no policy changes except to reword the regulatory
provisions for clarity.
Section 2804.16, How will BLM process a Category IV application?
This new section provides information in one place about Category IV,
in which BLM recovers the ``full reasonable costs'' of processing
right-of-way grant applications under FLPMA. Currently, this
information is scattered throughout several sections of the
regulations, including 2808.2-1, Application categories; 2808.3-2,
Periodic advance payments; and 2808.4, Reimbursement of costs for
monitoring.
Section 2804.17, What is a master agreement and what does it
contain? This new section would give information about the proposed new
category called ``master agreements.'' As described in the ``Cost
Recovery Provisions'' section in the GENERAL DISCUSSION section of this
preamble, master agreements are optional but may be of use to
applicants or grant holders seeking multiple grants in a limited
geographical area. They are especially useful to developers of oil and
gas fields. These developers may need many grants to build access
roads, feeder lines, and pipelines to transport the product(s) from the
field. This section specifies what information master agreements must
contain.
Section 2804.18, Can BLM reduce my reimbursement costs? This
proposed section contains information about applying for a reduction of
processing and monitoring costs. The only policy changes from the
existing regulations are as follows: (1) The proposed section lists the
``reasonability'' criteria on which you may seek to reduce your
processing costs, and (2) the proposed section does not use the term
``waive.'' The term ``reduction'' as used in the proposed rule includes
a provision for a reduction to zero dollars. All other changes are to
increase clarity and your ease of finding and using the information
that you may need in order to seek a reduction of processing and
monitoring costs.
BLM believes that this provision needs to be clear, since we are
eliminating exemptions from processing costs for federal agencies
except for those exempted by statute. We welcome any comments that you
may have on ways to streamline the process for determining whether or
not we should grant your requests for reductions and on the types of
information needed to adjudicate such applications.
Section 2804.19, What happens if there are two or more competing
applications for the same facility or system? This new section
clarifies how BLM will assess processing costs in situations where
there is more than one applicant for a facility or system. This
discussion is separated by category because BLM expects that the first
three cost categories will not involve costs attributable to more than
one application.
Applicants for FLPMA Category IV applications are responsible for
all reasonable costs identifiable with their applications. For costs
that cannot be easily identified with a specific application, such as
the costs of preparing environmental impact statements, all applicants
will pay an equal share or a proportion agreed to in writing.
Section 2804.20, How will BLM process my application?, contains a
customer service standard at proposed paragraph (c). The standard
states that BLM will process your application for a right-of-way within
30 working days of receiving it if the application falls within the
criteria for Categories I through III and if BLM may categorically
exclude the action from environmental analysis or prepare an
environmental assessment for it. If BLM cannot process your application
within 60 working days, a BLM field official will notify you in writing
and give you an explanation for the delay and an estimated completion
date. If your application falls within the criteria for Category IV
application, a BLM field official will notify you in writing and give
you an estimated completion date. This standard is found in BLM Manual
Section 2801.35B1g2b(1) and is intended to make us more responsive to
right-of-way customers.
Section 2804.23, Do I always have to submit an application to
receive a right-of-way grant?, is an updated version of current section
2803.1-3, which describes in detail procedures for competitive leasing.
BLM proposes to update and streamline that section because it is seldom
used and contains guidance more appropriate for a Manual section or
handbook. The current regulation also restricts the use of competitive
bidding to site-type rights-of-way, and BLM wants to broaden the use of
competitive bidding to include other situations, such as rights-of-way
[[Page 32120]]
used for emerging technologies. The proposed regulation would broaden
competitive bidding to increase BLM's flexibility in using it for site-
specific situations.
Section 2805.10, What does a grant contain? This proposed section
contains material from the current section 2801.2, Terms and conditions
of interest granted, and new language concerning hazardous materials
and adjusting bond amounst. The new language about hazardous materials,
which appears as terms and conditions of use in paragraph (c), would
require grant holders to notify the appropriate authorities of actual
and threatened discharges or releases of hazardous materials, to handle
hazardous materials in a proper manner and to comply with all liability
and indemnification requirements and provisions. (See the discussion at
section 2807.10 of this preamble.) Because BLM believes that preventing
discharges and releases of hazardous materials into the environment is
a part of doing business, we propose to expand the language in this
section.
The new language concerning BLM's adjustment of bond amounts also
occurs in paragraph (c) of section 2805.10. Currently all grant holders
furnish a bond or other security to cover losses, damages, or injury to
human health, the environment, and property resulting from activities
on the right-of-way. The proposed provision allows BLM to decrease or
increase the amount of the bond to reflect changes in the risk
associated with changed conditions and the grant holder's record of
complying with the provisions of the grant.
Section 2805.12, What rights does the grant convey? This proposed
section contains material from current section 2801.1-1, Nature of
right-of-way interest, paragraphs (b) through (f) and (k), with no
proposed regulatory changes. This section describes the rights that the
grant gives you. They are only the rights expressly contained in the
grant and do not include any rights that the United States retains.
Your use of resources within the right-of-way is limited to project and
facility purposes but includes minor trimming, pruning, and clearing as
necessary. Your grant is limited to the activities necessary to build,
operate, maintain, and terminate the authorized project and facilities.
Section 2805.14, What are monitoring fees? and 2805.15, When do I
pay monitoring fees? The information about monitoring fees is included
in these two proposed sections in this subpart. Monitoring fees are
assessed when BLM issues the grant. Although not a term or condition of
the grant, payment of monitoring fees is a condition of obtaining the
grant. The language of proposed section 2805.14, paragraph (b), would
change if BLM decides to develop and administer monitoring fees and
categories separately from application processing fees. (See discussion
under ``Cost Recovery Provisions'' in the GENERAL DISCUSSION section of
this preamble.) If BLM decides to develop and administer monitoring
fees and categories separate from the processing fee categories, we
will repropose the regulations in this section and provide you with an
opportunity to comment on the proposed categories and fees only if we
do not adopt the proposal described in the ``Revised Category
Definitions'' section of the GENERAL DISCUSSION in this preamble.
Subpart 2806, What information do I need to know about rents for
right-of-way grants? For a discussion of the major policy changes to
the sections in this subpart, see the discussion of Rents in the
GENERAL DISCUSSION section of this preamble. All other changes proposed
are intended to improve the clarity and readability of the requirements
for paying rents under FLPMA grants, except for one proposed change.
This proposed change occurs at section 2806.11, Are there exceptions to
paying rents? This section describes the circumstances under which
there are exemptions from paying rents on grants. The Omnibus Parks and
Public Lands Management Act of 1996, which amended section 504(g) of
FLPMA, struck out the phrase ``financed pursuant to the Rural
Electrification Act of 1936, as amended, `` and replaced it with the
phrase ``eligible for financing pursuant to the Rural Electrification
Act of 1936, as amended, determined without regard to any application
requirement under that Act.'' This statutory change has caused some
large, for-profit utility grant holders to apply for rent reductions
under FLPMA.
In mid-1997 the Forest Service sought guidance from the Committee
on Natural Resources of the U.S. House of Representatives. The
Committee Chairman, Representative Don Young, responded by letter dated
October 1, 1997. In his letter, Mr. Young stated that the intent of the
statutory revision was to exempt all not-for-profit rural electric and
telephone cooperatives from paying rent on their grants, whether these
cooperatives had built their facilities with financing from the Rural
Utility Service or not. Mr. Young further stated that the Committee
believed that rural and electric cooperatives filled an essential need
by providing electric and telephone service in areas of difficult
terrain and low customer density. Based on this information, BLM
believes that the exemption from paying rents does not apply to all
utility holders, just those who can document their non-profit status as
defined in the Internal Revenue Code at section 501(c)(3).
BLM therefore proposes to amend the existing provision at section
2803.1-2(b)(1)(iii) to include non-profit electric and telephone
cooperatives that built facilities financed by or eligible for
financing from the Rural Utility Service. The revised text, at
paragraph (b) of proposed section 2806.11, would read: ``The facilities
constructed on the right-of-way were constructed with funds from the
Rural Electrification Act of 1936, as amended (REA), or are non-profit
rural electric or telephone cooperative facilities eligible for REA
financing; or are extensions of such facilities.''
Section 2806.14, What are the rent costs for linear rights-of-way?
would make one change to existing policy. Current policy states that
BLM will use the rent schedule for linear grants unless the grant meets
two criteria: the land value exceeds the area's value by at least a
factor of 10 and the expected rent is sufficient to warrant a separate
appraisal. Some linear uses of rights-of-way have a significant value
that is not related to land value. In these cases, the value comes from
the type of use. Because the criteria require both factors to be met
before BLM considers rent separately from the rent schedule, we must
currently use the rent schedule for these uses. Having to use the rent
schedule for these grants prevents us from collecting their fair market
value. If we could use other methods to determine rent for these
grants, we could collect fair market value, as required by FLPMA. We
therefore propose to separate the factors that we will use to determine
when not to use the linear rent schedule. See the language in the
current regulations at section 2803.1-2(c)(v)(A), and compare with the
proposed regulations at section 2806.14(a)(1).
Section 2807.12, For what am I liable?, contains the material in
the current regulations at section 2803.1-5, Liability. It contains new
language in two areas: (1) the maximum limit on the amount of damages
would rise from $1 million to $5 million, and (2) there would be no
maximum limitation on strict liability resulting from damages or
injuries caused by hazardous substances or as allowed by law. See the
discussion under ``Hazardous materials'' in the GENERAL DISCUSSION
section of this preamble.
[[Page 32121]]
Section 504(h) of FLPMA gives the Secretary of the Interior the
authority to promulgate regulations specifying the extent to which
right-of-way holders are liable to the United States for damages or
injuries resulting from occupying or using a right-of-way grant. The
provision further states that the regulation must include a maximum
limitation on damages comparable to the foreseeable risks and hazards
presented. Current regulations, promulgated in July 1980, set the limit
at $1 million. The proposed regulations would raise the limit to $5
million, owing to inflation and other factors.
The liability limit does not apply to damages or injuries resulting
from the discharge or release of hazardous substances as defined by
CERCLA of otherwise allowed by law. The Federal Court of Appeals in
United States v. Chromalloy American Corporation, 158 F.3d 345, 350
(5th Cir. 1998), recently cited CERCLA for the proposition that
``notwithstanding any other provision of law, a private party will
reimburse the United States for all costs incurred.'' The court held
that CERCLA establishes a federal action in strict liability that
allows administrators to recover damages quickly and does not place
limits on liability. CERCLA preempts the liability cap established by
FLPMA for hazardous substances only.
Eliminating the liability cap for hazardous substances also aligns
with BLM's policy of having the polluter pay. A grant holder is fully
liable for all clean-up and restoration costs, damages, fees, and
penalties assessed against the holder's storing or using hazardous
substances in developing, relinquishing, or using the right-of-way,
regardless of fault.
Section 2807.13, What liabilities do state and local governments
have? requires state and local governments or their agencies to furnish
a bond to protect the liability exposure of the United States from
claims by third parties.
Section 2807.20, May I assign my grant? contains the same customer
service standard for processing time as that of applications for
grants. This standard is adopted from BLM Manual Section
2801.35B1g2b(1) and estimates the processing time as 30 working days
for applications which do not require extensive administrative work. If
processing an application for assignment takes more than 60 days, BLM
will notify you in writing, explain the reason for the delay, and give
an estimated processing time.
Section 2807.21, What will BLM charge me to review a request for
assignment? BLM proposes to charge processing fees for assignments,
based on the category of the application, rather than the flat fee
currently charged. For this reason, the section contains a brief
statement of the way in which we will charge fees. The fee would be
charged based on the number of work hours involved in processing the
assignment. Generally, the work involves adjudicating the prospective
assignee's qualifications to hold the grant; visiting the project site
to determine the status of the project and whether or not operations
are in compliance with applicable statutes, regulations, and the terms
and conditions of the grant; and preparing the necessary legal
paperwork. BLM would estimate the work hours involved in these
activities, consult the schedule for the appropriate number of hours,
and charge accordingly. (See the discussion at the ``Assignments and
Renewals'' section under the GENERAL DISCUSSION in this preamble.)
Section 2807.22, Can I renew my grant? The proposed section
contains material from existing section 2803.6-5. Note that the
reference to ``temporary use permits'' has been eliminated because BLM
proposes to eliminate temporary use permits for rights-of-way issued
under FLPMA and replace them with short-term grants. The same customer
service standard for processing times would apply to applications for
renewal as to new applications.
Subpart 2808, What do I need to know about trespass? This proposed
subpart contai