- If a ROW grant holder submits a name change to BLM, is that considered an assignment?
- Federal regulations governing oil and gas leasing contained in 43 CFR 3100 have different fee schedules for name changes and assignments. How does this relate to the BLM’s new ROW regulations in 43 CFR 2800 and 2880?
- Can potential assignees request an assignment using a letter format, or do they need to submit a Standard Form 299?
- Does a Standard Form 299 need to be completed for every single assignment, or can it be used for a group of assignments?
- If the request for assignment involves more than one grant, does BLM apply a Category 1 fee to each ROW proposed for assignment, or to the group of ROWs?
- Can BLM require the assignee to submit a performance bond?
- Does BLM consider the cost of processing a bond when determining the appropriate cost recovery category for an assignment
- If the current holder has a performance bond related to an ROW grant, can the holder allow the assignee to assume the bond?
- Can BLM charge the assignee fees to monitor the grant?
- Can BLM process assignments in the State Office?
- How does BLM internally process the money received for mass assignments?
- What does BLM enter in its LR2000 database for assignments?
- After notifying the potential assignee of the cost recovery decision, what should the title of the assignment decision document be?
- What is the difference between cost recovery fees and rent?
- How did BLM determine the final fees?
- The new rule requires BLM to determine the Monitoring category separately from the Processing category, where before they were linked together within the same category. Will the new procedures involve one Decision or two Decisions?
- How will BLM handle the determination of the Monitoring category during the transition period from the old to the new regulations?
- Are there any right-of-way actions that are now subject to cost recovery fees that were previously excluded?
- What is a Master Agreement and why did BLM add provisions for it in the rule?
- How does this rule affect cost recovery fees for those applicants and grant holders whose facilities are eligible for financing under the Rural Electrification Act?
- Are Federal agencies still exempt from cost recovery fees under the new rule?
- Are State and local governments still exempt from paying cost recovery fees under the new rule?
- Does this rule affect rent for telecommunication users?
- Under this final rule, are facilities that are financed under the Rural Electrification Act still exempt from rent?
- Does this rule modify the rent rates in either the linear or communication use rent schedule
- Are there any changes to the way BLM will collect rent?
- Do the new regulations provide for a late fee for non-payment of rent?
- The new rule references a "payment plan" - what is that and when are they effective?
- How will the new rule affect the rent payment periods on my existing ROW grant? I am currently on a 5-year payment schedule - will I have to convert to a 10-year or other term immediately?
- How does the new rule change when BLM starts collecting rent?
Public Health and Safety or the Environment
- How does this rule affect hazardous material use on rights-of-ways on Federal lands?
Term of Authorizations
- Does the rule allow for long-term right-of-way grants?
- How does the new rule affect the termination date of a ROW grant?
- Can BLM issue an easement under the new rule?
- What is the benefit of an easement?
- What is the term of an easement?
- Will BLM automatically issue an easement if lands involved in a right-of-way grant are being transferred out of Federal ownership?
- How much rent will BLM charge for an easement?
Federal Agency Authorizations
- Will BLM continue to issue ROW reservations to Federal agencies?
- Does the rule contain customer service standards?
- How will BLM deal with customer service standards in the transition period between the old regulations and the new ones?
- What is the definition of a "completed" application?
1. If a ROW grant holder submits a name change to BLM, is that considered an assignment? Yes, it is. Any action that changes the legal relationship between BLM and the current holder, including a name change, requires BLM approval through an assignment. The regulations governing assignments are contained in 43 CFR 2807.21 for FLPMA grants, and 43 CFR 2887.11 for MLA grants. BLM’s time to process assignments are fully cost recoverable from the potential assignee.
2. Federal regulations governing oil and gas leasing contained in 43 CFR 3100 have different fee schedules for name changes and assignments. How does this relate to the BLM's new ROW regulations in 43 CFR 2800 and 2880?
While the regulations in 43 CFR 3100 differentiate between assignment, name change, merger, transfer, and consolidation, these activities are all considered "assignments" in the 43 CFR 2800/2880 regulations. Mergers may or may not require an assignment, depending upon who acquires who, the name taken by the merged parties, and what authorizations the merged parties individually own.
3. Can potential assignees request an assignment using a letter format, or do they need to submit a Standard Form 299?
The proposed assignee must submit a SF299 (see paragraph below). They need to fill in items 1-6, 12, and 19 (hazmat statement).
BLM will obviously continue to receive assignment requests in a business letter format. In this situation, the processing office should respond with a Decision requesting cost recovery money, if appropriate, and also provide a SF299 to the applicant requesting that they return the SF299 with their fees. A completed SF299 must be filed with BLM prior to issuing a Decision approving the assignment.
4. Does a Standard Form 299 need to be completed for every single assignment, or can it be used for a group of assignments?
A potential assignee can request an assignment for multiple grants within a single State Director’s jurisdictional area with one SF299. It is suggested that the ROWs to be assigned be grouped as to authority under which the ROW was issued and by BLM District and Field Office.
5. If the request for assignment involves more then one grant, does BLM apply a Category 1 fee to each ROW proposed for assignment, or to the group of ROWs?
BLM determines its fees based on the whole request, not to each ROW. If BLM estimates that it will take 30 hours to process an assignment request of 25 ROWs, the fee should be a Cat 3 ($665 for calendar year 2006), not 25 x $100. All of the time required to complete the assignment, by both State Office and Field Office personnel, is figured in for the processing category determination.
6. Can BLM require the assignee to submit a performance bond?
Yes. When considering a proposed assignment, the processing office needs to consider whether or not to bond the assignee. While BLM may have an excellent relationship with an existing holder, a variety of circumstances must be considered in deciding whether or not to bond the new holder. For example, the assignee may be a party that has a history of compliance problems, may propose to begin using hazardous materials in connection with the authorization, or may be an entity (such as an LLC) that is appropriately bonded.
7. Does BLM consider the cost of processing a bond when determining the appropriate cost recovery category for an assignment?
Yes. It is important to remember that all the costs of processing an assignment, including the time required to process a bond associated with the assignment, must be included in the cost recovery category determination.
8. If the current holder has a performance bond related to a ROW grant, can the holder allow the assignee to assume the bond?
No. Bonds cannot be transferred between assignors and assignees. In a situation where the ROW grant being assigned includes an existing bond, the processing office must ensure that the old bond is canceled and that the assignee has a new bond in place prior to completing the assignment. In situations of mass assignments, it is important that this situation not be overlooked. Each case file must be reviewed for the possibility of the need for a new bond. The potential time required to review and process bonds should be included in the processing category Decision for assignment requests.
9. Can BLM charge the assignee fees to monitor the grant?
Yes. Under the new regulations, assignees can also be charged monitoring fees. This should be considered if monitoring fees have not been previously charged, or if the terms and conditions of the grant are changed with the assignment.
10. Can BLM process assignments in the State Office?
Yes, assignments can be processed at the State Office depending on the policy of each state.
This requires the SO to review the case files involved, and to do the cost recovery Decision letter and the “Assignment Accepted” decision. Fees collected will be deposited into subactivity 5102 (unless the assignment request is covered in a Master Agreement or involves more than 50 hours of work), and fees collected should go to the office that does the work. All BLM staff working on the assignment should charge their time to 5102.
Requests for multiple assignments may be received and processed for several offices within a single State, but may not be accepted for multiple States due to jurisdictional and fee issues. The method of processing mass assignments within a State, and the distribution of fees collected to process the assignment, should be determined by the individual State Offices.
11. How does BLM internally process the money recieved for mass assignments?
In the case of multiple requests, it is not necessary for each case file to have an accounting receipt. The cost recovery Decision for an assignment is a courtesy statement, not a bill. It is suggested that the processing office deposit the money with only one case file reference, and that becomes the lead file. LR2000 for the other case files can have the 840-845 processing category action code entered with the additional entry "SEE WYW-xxxxx" in the Action Remarks column. This tells the person reviewing the case file that the action was assigned a Category X processing category, and that the money was deposited in the WYW-xxxxx lead file. BLM offices specifically should not assign fractional amounts of the processing fee to each case file involved in a mass assignment. BLM Field Offices may also want to consider a notation in the Remarks space at the bottom of the serial register page that explains the lead file for cost recovery purposes.
12. What does BLM enter in its LR2000 database for assignments?
For assignments in LR2000, the following entries are suggested:
- 140 Assignment Filed
- 840 to 845 Cat 1 to 6 Cost Recovery- Processing (in the Action Remarks column, also write "SEE WYW-xxxxxx" for a lead file in multiple assignments)
- 878 to 883 Cat 1 to 6 Cost Recovery- Monitoring (if appropriate)
- 139 Assignment Approved
There will be one or two additional entries automatically generated by CBS: 971 (Cost Recovery Processing- Rec'd), and 065 (Cost Recovery Monitoring- Rec'd). In the case of multiple assignments, this would appear in the lead file only.
13. After notifying the potential assignee of the cost of recovery decision, what should the title of the assignment decision document be?
"Assignment Approved", or “Assignment Disapproved”.
1. What does this rule cover?
The Bureau of Land Management (BLM) is amending its regulations governing rights-of-way issued under both the Federal Land Policy and Management Act (FLPMA) and the Mineral Leasing Act (MLA). This final rule revises the regulations as follows:
- Revises BLM cost recovery (processing and monitoring fee) policies, with adjustments to cost recovery fees which take into account cost increases, since the previous regulations became effective in the 1980s;
- Revises some procedures for issuing right-of-way grants. Manuals and handbooks are being amended to reflect these changes;
- Establishes policies related to paying rent in advance, adds a financial penalty for paying rent late, and allows for automatic annual adjustment to cost recovery fees based on an economic indicator;
- Clarifies how BLM applies the rent schedules for communication site leases; and
- Reorganizes the regulations in a manner similar to the sequence in which BLM takes action on applications and monitors issued grants.
2. Why are there two sets of right-of-way regulations in the final rule?
The regulations at 43 CFR Part 2800 - “Rights-of-Way, Principles and Procedures”, apply to rights-of-way issued under FLPMA, such as electric transmission lines, water pipelines and some roads. The regulations at 43 CFR Part 2880- “Rights-of-Way Under the Mineral Leasing Act”, apply to rights-of-way issued for oil and natural gas pipelines and related facilities.1. What is the difference between cost recovery fees and rent?
Cost recovery fees are paid by an applicant for the costs that BLM incurs in processing an application for a right-of-way and in monitoring a grant after a right-of-way has been issued.
Rent is a charge for locating a right-of-way facility on public or Federal lands. It is payable for a specified term and is based on the fair market value of the rights BLM authorizes. BLM usually establishes the rent for linear and communication sites on public lands via two separate administrative schedules. Rent does not include processing or monitoring fees, and rent is not offset by such fees.2. How did BLM determine the final fees?
The new fees are based on the number of Federal work hours to process an application or to monitor the grant. The four fixed fee categories (minor categories 1-4) are based on a mean per hour rate ($21.46 for 2005). The final rule allows for automatic annual adjustment of the minor category fees based on changes in the IPD-GDP, and requires BLM to reevaluate the fees five years from the effective date of the regulations and every 10 years after that. Please refer to the preamble to the final rule for further information on how BLM determined the final fees for the fixed fee categories.3. The new rule requires BLM to determine the Monitoring category separately from the Processing category, where before they were linked together within the same category. Will the new procedures involve one Decision or two Decisions?
It will require two Decisions. The Processing category Decision is issued upon receipt and initial review of the application. The Monitoring category is issued later, after the environmental analysis has been completed, so that BLM can determine the amount of time (in work hours) that will be required to monitor the various terms and conditions of the grant.4. How will BLM handle the determination of the Monitoring category during the transition period from the old to the new regulations?
If BLM issued a Cost Recovery Category Determination Decision under the old rule (prior to the effective date of the new rule), that Decision also automatically determined the Monitoring category. However, the dollar amount to be charged for monitoring the grant will be determined by the schedule contained in the new rule. Any Processing category Decision issued after the effective date of the new rule will not automatically determine the Monitoring category, and the Monitoring category will be determined according to the new procedures.5. Are there any right-of-way actions that are now subject to cost recovery fees that were previously excluded?
Yes. The rule established cost recovery fees for processing applications for grant renewals and assignments, and applies the appropriate cost recovery category to determine the fees for processing them. Both FLPMA and the MLA give BLM authority to collect cost recovery fees for processing applications, including applications for renewals and grant assignments. This change makes the cost recovery rule consistent with the statutes.6. What is a Master Agreement and why did BLM add provisions for it in the rule?
A Master Agreement is a negotiated agreement between an applicant and BLM covering cost recovery fees for multiple BLM grant approvals within a defined geographic area. Because several applications or grants will be treated under one agreement, there should be more efficient application processing and potentially lower cost to both BLM and the applicant. To the extent that several grants in a given area will be approved at the same time under the agreement, it is possible that there will be fewer environmental impacts due to better project planning.7. How does this rule affect cost recovery fees for those applicants and grant holders whose facilities are eligible for financing under the Rural Electrification Act?
Applicants and grant holders of facilities that are financed or are eligible for financing under the REA must pay the appropriate cost recovery fees to process their applications and monitor their grants. Any applicant or holder may apply for a waiver or reduction of these fees for reasons of financial hardship or for other factors identified in the final rule.8. Are Federal agencies still exempt from cost recovery fees under the new rule?
No. Under the final rule Federal agencies will be subject to cost recovery fees.9. Are State and local governments still exempt from paying cost recovery fees under the new rule?
Yes. State and local governments ("municipal corporations") remain exempt from the payment of cost recovery fees.1. Does this rule affect rent for telecommunications users?
No. The final rule does not change the rent amounts except by the amount of the yearly change in the CPI-U. This is consistent with existing rules and policy. The final rule clarifies how to apply the rent provisions published in a November 1995 revision to the communication site right-of-way regulations. The 1995 regulations established a rent schedule for nine types of communication uses and nine population categories. The regulations did not specify in sufficient detail what types of uses were included in each category or how rent was determined in some circumstances. This has caused confusion among BLM administrators and holders of communication site rights-of-way. These clarifying changes will have no economic impact on either applicants or grant holders.2. Under this final rule, are facilities that are financed under the Rural Electrification Act still exempt from rent?
Yes. The final rule retains the rent exemption provision for telephone and electric facilities financed under the REA. In addition, the final rule expands the rent exemption provision to include all telephone and electric facilities serving rural areas that are eligible for financing under the REA.3. Does this rule modify the rent rates in either the linear or communication use rent schedule?
No. There is no change to the rent amounts contained in the existing linear or communication use rent schedules.4. Are there any changes to the way BLM will collect rent?
Yes. Holders of linear right-of-way grants will be allowed to either pay for the entire term of the grant (including grants issued in perpetuity), or to pay at ten-year intervals not to exceed the term of the grant. However, there is an exception: individuals whose annual rent exceeds $100 may pay annually or for any multi-year period.5. Do the new regulations provide for a late fee for non-payment of rent?
Yes. The new regulations provide for a late fee of $25 or 10% of the rent owed, whichever is greater, not to exceed $500 per authorization, if BLM does not receive the rent payment within 15 calendar days after the rent is due.6. The new rule references a "payment plan" - what is that and when are they effective?
Payment plan refers to the options available to:
- Individuals - rent $100 or less -- 10-year interval or one-time payment;
- Individuals - rent over $100 -- annual or multi-year intervals;
- All Others - 10-year interval or one-time payment.
These rent payment options become effective on the effective date of the regulations for all new grants that are subject to rent. A three-year phase-in period will be provided for grants issued prior to the effective date of the regulations.7. How will the new rule affect the rent payment periods on my existing ROW grant? I am currently on a 5-year payment schedule – will I have to convert to a 10-year or other term immediately?
Under the new rule, holders of existing grants will have the option of paying either 1) for the entire term of the grant, or 2) at 10-year intervals. There is an exception for individuals, however. Individuals whose rent is more than $100 per year may either continue to pay annually, or may optionally pay at multi-year intervals. Holders will be offered these options on their next billing cycle, but the new options will not become mandatory for holders of existing authorizations until January 2009.8. How does the new rule change when BLM starts collecting rent?
Under the new rule, rent will be charged beginning the first day of the month following the effective date of the grant.1. How does this rule affect hazardous material use on rights-of-ways on Federal lands?
BLM may now add language after the grant is issued to the terms & conditions regarding hazardous material and for any other reason, so as to better protect public health and safety or the environment. Therefore, BLM may require a grantee to provide a bond, insurance, or other acceptable security to protect the liability exposure of the United States to hazardous material claims by third parties arising out of the use and occupancy of the right-of-way or TUP area and to cover any losses, damages, or injury to human health, the environment, and property incurred in connection with the holder’s use and occupancy of the right-of-way or TUP area. Based on the holder’s record of compliance and changes in risk and conditions, BLM may require the holder to increase or decrease the amount of the bond, insurance, or security. The new rule clarifies BLM’s authority to require such language in these situations.1. Does the rule allow for long-term right-of-way grants?
Yes. Under certain limited circumstances BLM may issue grants and easements in perpetuity. For example, a perpetual grant or easement may be necessary for BLM to protect the rights of grant holders when we dispose of Federal land encumbered by a right-of-way grant. We may also need to issue a perpetual grant in circumstances when holders must comply with local land use ordinances that may require a perpetual right in order to develop private property interests.2. How does the new rule affect the termination date of a ROW grant?
All grants with terms, except those issued for less than one year, will now expire on December 31st of the final year of the grant.1. Can BLM issue an easement under the new rule?
Yes. BLM may issue an easement for uses authorized under an existing right-of-way grant when the lands affected by that grant are about to be transferred out of Federal ownership. In situations where only a portion of the lands involving a right-of-way grant are being transferred, an easement may only be issued for the portion of the authorized use that is on the lands to be transferred out of Federal ownership.2. What is the benefit of an easement?
Previous experience has found that a BLM right-of-way grant, when transferred out of Federal administration, can be difficult to interpret in the private sector. An easement is commonly used in the private sector, and is much easier to understand by those involved in administering the authorized use.3. What is the term of an easement?
If the original grant was issued under FLPMA, the term of the easement will be perpetual. If the original grant was issued under MLA, which has statutory maximum term of 30 years, the "term" easement would expire in 30 years.4. Will BLM automatically issue an easement if lands involved in a right-of-way grant are being transferred out of Federal ownership?
No. A right-of-way grant holder who wishes to have his/her grant converted to an easement will have to apply for it in advance of title closing. The application process will involve cost recovery and rent. In most circumstances, BLM can transfer the Federal land “subject to” the authorized uses in the patent document. In addition, BLM right-of-way holders are encouraged to negotiate a replacement agreement with the prospective property owner prior to patenting.5. How much will BLM charge for an easement?
It depends upon the legal authority used to issue the easement. For perpetual easements issued under FLPMA, the rent will be calculated by determining the annual rent and multiplying it by 100. Easements issued under MLA for oil and gas pipelines are considered a “term” easement because they are limited to a 30-year term, so the rent will be calculated by determining the annual rent and multiplying it by 30. In lieu of the 100 year administrative option for rent determination of a perpetual grant, the holder can request from BLM a rent determination based on the prevailing price established by general practice in the vicinity of the right-of-way. The holder must pay for this report.1. Will BLM continue to issue ROW reservations to Federal agencies?
No. Under the new rule, BLM will issue right-of-way grants to Federal agencies instead of right-of-way reservations.1. Does the rule contain customer service standards?
Yes. If processing a completed application (in processing categories 1-4) will take longer than 60 calendar days, BLM is required to notify the applicant in writing of this fact prior to the 30th calendar day, and inform the applicant of when they can expect a final decision on the application. BLM will make every effort to process applications for rights-of-way in a timely manner. For category 5 applications, customer service standards are agreed to in the Master Agreement. For category 6 applications, BLM will inform the applicant of the expected processing time within 60 days of receiving the completed application.2. How will BLM deal with customer service standards in the transition period between the old regulations and the new ones?
For those "completed" applications received prior to the date the new regulations are effective, the following guidelines apply (all days are calendar days):
- For applications that will be fully processed (that is, a Decision issued to either grant or deny the application) prior to the effective date of the regulations will require no notification to the applicant.
- For applications received less than 30 days prior to the effective date of the new regulations, and which will not be fully processed within 60 days of the receipt of the application, BLM must send a letter to the applicant within 30 days of receipt of the completed application notifying the applicant that it will take more than 60 days to process the application and informing the applicant when a Decision is expected.
- For applications received more than 30 days prior to the effective date of the new regulations, and which will not be fully processed within 60 days of receipt of the application, BLM must send a letter to the applicant on the effective date of the new regulations notifying the applicant that the application has not been processed, and informing the applicant when a Decision is expected.
3. What is the definition of a "completed" application?
An application is considered complete when BLM:
- has the information to process it, and
- the processing fee has been received.