Land resource management: Rights-of-way Principles and procedures and Mineral Leasing Act,

As Enacted ( Federal Register)

Cited authorities 46

Cited in

[Federal Register: April 22, 2005 (Volume 70, Number 77)]

[Rules and Regulations]

[Page 20969-21091]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr22ap05-10]

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Part II

Department of the Interior

Bureau of Land Management

43 CFR Part 2800, et al.

Rights-of-Way, Principles and Procedures; Rights-of-Way Under the Federal Land Policy and Management Act and the Mineral Leasing Act; Final Rule

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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Parts 2800, 2810, 2880, 2920, 9230, and 9260

[WO 350 05 1430 PN]

RIN 1004-AC74

Rights-of-Way, Principles and Procedures; Rights-of-Way Under the Federal Land Policy and Management Act and the Mineral Leasing Act

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

The Bureau of Land Management (BLM) is amending its regulations governing rights-of-way issued under both the Federal Land Policy and Management Act (FLPMA) and the Mineral Leasing Act (MLA). This final rule revises BLM cost recovery (processing and monitoring fee) policies and procedures for issuing right-of-way grants and adjusts cost recovery fees to take into account cost increases since the previous regulations became effective in August 1987. The rule also eliminates automatic exemptions from cost recovery fees for Federal agencies, except for those agencies and projects exempted by law. It establishes policies related to paying rent in advance and adds a financial penalty for paying rents late and allows for automatic adjustment to cost recovery fees based on an economic indicator. This final rule also clarifies how BLM applies the rent schedules for communication site rights-of-way and reorganizes the regulations in a manner similar to the sequence in which BLM takes action on applications and monitors issued grants.

DATES: Effective Date: This final rule is effective June 21, 2005.

FOR FURTHER INFORMATION CONTACT: Bil Weigand at (208) 373-3862, or Ian Senio at (202) 452-5049, or write to Director (630), Bureau of Land Management, Eastern States Office, 7450 Boston Boulevard, Springfield, Virginia 22153, Attention: RIN 1004-AC 74.

Persons who use a telecommunications device for the deaf may contact these persons through the Federal Information Relay Service at 1-800-877-8339 24 hours a day, seven days a week.

SUPPLEMENTARY INFORMATION:

Background II. Final Rule as Adopted and Response to Comment III. Procedural Matters
Background

BLM published the proposed rule in the Federal Register on June 15, 1999 (see 64 FR 32106) for a 120-day comment period ending on October 13, 1999. As a result of public requests for extensions of the comment period, on October 13, 1999, we extended the public comment period for 30 days ending on November 12, 1999. We received 63 comment letters on the proposed rule. We address public comments in the section-by-section discussion of this preamble.

In these regulations we use the terms ``previous regulations'' and ``final regulations.'' ``Previous regulations'' refers to the regulations in effect prior to June 21, 2005. ``Final regulations'' means the regulations in this final rule. This final rule will replace the regulations in parts 2800 and 2880 of the October 2004 edition of Title 43 of the Code of Federal Regulations.

General Information About BLM Right-of-Way Grants Basis and Purpose of These Regulations

Each year, thousands of individuals and companies apply to BLM to obtain a right-of-way grant on public lands. A right-of-way grant is an authorization to use a specific piece of public land for a certain project, such as roads, pipelines, transmission lines, and communication sites. The grant authorizes a specific use of the land for a specific period of time. The term ``grant'' is defined in the definitions sections in both parts of this rule. The definition of ``grant'' in part 2800 applies to grants authorized by Title V of FLPMA, 43 U.S.C. 1761, and the definition in part 2880 applies to grants authorized by the MLA at 30 U.S.C. 185. Generally, BLM issues a right-of-way grant for a term commensurate with the life of the project. Typically, BLM issues grants with 30-year terms, and most can be renewed. This final rule covers FLPMA grants for rights-of-way that cross public lands and MLA grants for rights-of-way that cross Federal lands. We cover general provisions for right-of-way grants in subparts 2801 and 2881 of this final rule.

BLM places a high priority on working with applicants on proposed rights-of-way to provide for the protection of resource values and to process applications timely. Careful advance planning with BLM personnel is strongly encouraged. If we know about your plans early, we can work with you to tailor your project to avoid many problems and costly delays later in the process.

If you are not familiar with our right-of-way application process or local BLM jurisdictions, the best place to start is by contacting a BLM State Office listed in our regulations at 43 CFR 1821.10. Please note that each state office oversees a number of field offices. Depending on your project, you may be working primarily with personnel at a BLM field office.

As a general rule, you need a right-of-way grant whenever you plan to build a right-of-way facility on public lands. Some examples of land uses which require a right-of-way grant include: transmission lines, communication sites, roads, highways, trails, telephone lines, canals, flumes, pipelines, and reservoirs.

You do not need a right-of-way grant for ``casual use'' activities. Examples of casual use include driving vehicles over existing roads, sampling, surveying, marking routes, collecting data to prepare an application for a right-of-way, and performing certain activities that ordinarily result in no, or negligible, disturbance of the public lands or resources. ``Casual use'' is defined in sections 2801.5 and 2881.5 and is addressed in sections 2804.29 and 2884.25 of this final rule. We encourage you to contact BLM and discuss your planned activity before assuming your use is casual. BLM can then make a judgment based on your particular activity.

Steps In Applying for a Right-of-Way

(A) Contact the BLM office having management responsibility for the land where you need the right-of-way.

(B) Arrange a preapplication meeting with the field office manager or appropriate staff. During this meeting, participants will jointly review the application requirements and Standard Form (SF) 299, Application for Transportation and Utility Systems and Facilities on Federal Lands, to determine what information BLM needs. If you contact us ahead of time to set up the meeting, we can often arrange to hold the meeting at the site of your proposed use.

(C) When you have all the information, bring or mail the application, along with the nonrefundable application processing fee, to the appropriate BLM office.

This final rule covers the application process for FLPMA right-of- way grants in subparts 2803 and 2804, and the application process for MLA grants in subparts 2883 and 2884.

Preapplication Meeting

The preapplication meeting is an important part of the process for both

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you and BLM. The meeting provides the opportunity for you to fully discuss and describe your proposal in detail and provides an opportunity for BLM to fully explain processing requirements. The preapplication meeting may also cover fees, safety, work schedules, and other items. This meeting has the potential to save both you and BLM time and expense. For example, in FLPMA, Congress directed that ``rights-of-way in common'' (common use of a right-of-way area by multiple grant holders) be required, to the extent practical, in order to minimize adverse environmental impacts and the proliferation of separate rights-of-way. This is accomplished through a system of designated right-of-way corridors and co-locating communication uses on existing towers and within multi-occupancy buildings when feasible. During the preapplication meeting, BLM staff may examine the proposed right-of-way use to see if it would fit in an existing corridor or in an existing communication facility. Sections 2804.10 and 2884.10 of this final rule address preapplication meetings.

Application forms are available at every BLM office and on the Internet at http://www.blm.gov/nhp/what/lands/realty/forms/299/index.html. BLM

wants to make the application process as easy as possible. Accordingly, the application form (SF-299) requests a minimum amount of information. Even so, incomplete information is often the reason BLM cannot process your application quickly.

To avoid problems, you should review the form prior to your preapplication meeting and, if possible, complete it before or during the preapplication meeting with BLM. Be sure to bring any information that you believe BLM would find useful during this session. For example, item 8 requests a map of the project area. You may already have a survey or other adequate map that will satisfy this requirement.

You should arrange for your preapplication meeting well in advance of when you would like to start work on the project. Processing time for an average grant is 60 to 90 days. However, grants for complex projects can take much longer to process. Try to contact BLM as soon as possible. The field office manager and staff are ready to provide information, advice, and assistance to help you prepare your application.

Costs

Both FLPMA (43 U.S.C. 1764(g)) and the Mineral Leasing Act (30 U.S.C. 185(l)) authorize BLM to charge processing fees, monitoring fees, and rent.

Processing Fees. This cost recovery charge reimburses the United States in advance for the expected administrative and other costs we incur in processing the application. You must pay processing fees when you submit the written application. BLM will use the information presented during the preapplication meeting to estimate the application processing fee. Subparts 2804 and 2884 of this final rule address processing fees.

Monitoring Fees. This cost recovery charge is a nonrefundable fee to reimburse the United States for the cost of monitoring compliance with the terms and conditions of the right-of-way grant, including your obligation to protect and rehabilitate the lands covered by the right- of-way. BLM will monitor your construction, operation, and maintenance of the right-of-way and, when the time comes, the shutdown of your activities and the termination of the right-of-way grant. Subparts 2805 and 2885 of this final rule address monitoring fees.

Rents. This is a charge for locating your right-of-way facility on public or Federal lands. It is payable (for a specified term) before we issue the grant and is based on the fair market value of the rights we authorize. We usually establish the rental for linear and communication sites on public lands via two separate administrative schedules. Based roughly on land values in the project area, these schedules are adjusted annually using an economic index. In some cases, the rental is established by an appraisal. Subparts 2806 and 2885 of this final rule address these schedules and other rent issues.

Exemptions, waivers, or reductions in the processing, monitoring, or rental fees may apply to your application and BLM officials can explain these during the preapplication meeting. Subparts 2804, 2806, 2884, and 2885 of this final rule cover these issues.

Temporary Use Permits and Short Term Grants

All activities associated with the construction, operation, maintenance, and termination of your right-of-way grant must be within the specified limits of the authorization. Item 7 on the right-of-way application form is where you would identify your need for the use of additional land during, for example, the construction phase of your project. This additional land may be necessary for construction, stockpiling of excess materials, equipment parking, and the like. If you require additional land for your MLA grant, you will need to apply for a temporary use permit (TUP). The MLA specifically authorizes BLM to issue temporary use permits associated with MLA grants (see 30 U.S.C. 185(e)). BLM can grant TUPs for up to three years. If you require additional land for your FLPMA grant, you will need to apply for a short term grant for the additional lands. FLPMA specifically authorizes temporary use of additional lands for FLPMA grants (see 43 U.S.C. 1764(a)). You should discuss TUP and short term right-of-way grant needs with BLM during the preapplication meeting.

You can apply for a TUP or a short term grant at the same time you apply for a right-of-way by describing the dimension and location of the additional lands, and the term you need in item 7 of the standard right-of-way application (SF-299), or by describing this information in your Plan of Development, as part of your application. You may also apply for a TUP or short term grant after BLM grants your right-of-way. In this case, you must use a separate SF-299 form, and pay additional processing and monitoring fees for BLM to process the TUP or short term grant. This might require a separate environmental clearance and take additional processing time. If there is a possibility that you may need extra width or space, it is best to identify this in your original right-of-way application. Part 2800 of this final rule addresses short term grants and part 2880 of this final rule addresses TUPs.

Processing a Right-of-Way Application

Once you file an application with BLM, we will review it to make sure you have included all necessary information. We will then review and evaluate the application contents and determine the probable impact of the activity on the social, cultural, economic, and physical environment. BLM will also check to see if the proposed right-of-way is consistent with the existing land use plan, and will check to see what valid existing rights currently exist on the lands in question. BLM may deny a right-of-way application for any number of reasons. A preapplication meeting will reduce the possibility of BLM denying your application. Sections 2804.26 and 2804.27 and sections 2884.23 and 2884.24 of this final rule address denials of grant or TUP applications.

Appeals

If BLM denies your application, the official written decision will give the reasons for the denial and information on how to file an appeal. You also have appeal rights at many other decision

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points in this final rule. In general, if you are an applicant who is adversely affected by a BLM written decision, you may appeal that decision. Sections 2801.10 and 2881.10 of these regulations address appeals.

Liability

As holder of a right-of-way grant you are responsible for damage or injury to the United States and to third parties in connection with the right-of-way use. You, as the holder, must also indemnify or hold the United States harmless for third party liability, damages, or claims it incurs. Sections 2807.12, 2807.13, 2886.13, and 2886.14 of this final rule address liability issues.

Amendments to Your Grant

If you want to substantially change, improve, or add to a project once you have a right-of-way grant, you must file an application with BLM to amend your right-of-way grant. You must have BLM's prior written approval before you make any substantial change in location or use during construction, operation, or maintenance of the right-of-way. You must contact the field office manager to determine if your proposed changes require you to file an amendment. Sections 2807.20 and 2887.10 of this final rule cover grant amendments.

Monitoring Your Grant

BLM may inspect your project for compliance with the terms and conditions of the grant and these regulations. In addition, under the terms of the grant, BLM reserves the right of access onto the lands covered by the right-of-way grant and, with reasonable notice to the holder, the right of access and entry to any facility constructed in connection with the project (see sections 2805.15 and 2885.13). Subparts 2805 and 2885 of this final rule address grant monitoring.

Grant Suspension and Termination

A right-of-way holder may use the right-of-way for only those purposes permitted in the grant. BLM may suspend or terminate a right- of-way if the holder does not comply with the applicable laws, regulations, terms, or conditions. BLM may require an immediate temporary suspension of activities within a right-of-way to protect the public health or safety or the environment. Sections 2807.16 through 2807.19 and sections 2886.16 through 2886.19 of this final rule address suspensions and terminations.

Assignments

With BLM approval, you may transfer your right-of-way grant to another person. A transfer of your grant is called an assignment. You must submit to BLM, in writing, an application for the proposed assignment, along with a nonrefundable payment. BLM will not recognize an assignment to the new owner until we approve it in writing. BLM will approve the assignment if doing so is in the public interest. Sections 2807.21 and 2887.11 of this final rule address assignments.

Trespass

If you use, occupy, or develop the public lands or their resources without a required authorization or in a way that is beyond the scope and terms and conditions of your authorization, you are considered to be in trespass and you may be penalized. Subparts 2808 and 2888 of this final rule address trespass.

Comparison Between FLPMA and MLA Grants

There are many similarities and differences between FLPMA and MLA grants. The following chart describes FLPMA and MLA right-of-way grants, but is not meant to be a complete description of all of the nuances, similarities, and differences between FLPMA and MLA grants.

Part 2800

Part 2880 Regulations FLPMA Regulations MLA Grants

Grants

Agency Jurisdiction......... BLM issues grants on BLM issues grants on public lands only all Federal lands (43 U.S.C. 1761(a)). if the lands are administered by two or more Federal agencies. BLM also issues grants on public lands (30 U.S.C. 185(c)). Term........................ A reasonable term. A reasonable term This can range from not to exceed 30 a term of one day years (30 U.S.C. to a term in

185(n)). perpetuity. (43 U.S.C. 1764(b)). Rental...................... Fair market rental Fair market rental value required from value required from holders, but

all holders (30 exceptions apply. U.S.C. 185(l)). (43 U.S.C. 1764(g)). Cost Reimbursement.......... Collect reasonable Collect actual costs costs of processing of processing the the application and application and monitoring except monitoring except from certain

from certain government agencies government agencies and cooperative (43 CFR 2884.13). cost share program participants (43 U.S.C. 1764(g)). Renewal..................... Renewable if it is Renewable if the provided for in the grant is still grant and

being used for satisfactory

commercial operation and

operations and maintenance exists satisfactory (43 U.S.C. 1764(b)). operation and maintenance exists (30 U.S.C. 185(n). Citizenship................. Individual applicant Individual applicant not required to be required to be U.S. U.S. citizen (43 citizen (30 U.S.C. U.S.C. 1761(b)). 181, 185). Width....................... Variable, depending Maximum 50-foot on purpose of the permanent width, authorization (43 plus the ground U.S.C. 1764(a)). occupied by the pipeline; exceptions are possible (30 U.S.C. 185(d)). Assignments................. Assignable with Assignable with BLM's approval (43 BLM's approval (30 U.S.C. 1764(c) and U.S.C. 185(r)). (g)). Temporary Use............... Authorize temporary Authorize temporary work areas as part work areas with a of a right-of-way Temporary Use grant or with a Permit (30 U.S.C. separate short-term 185(e)). right-of-way grant (43 U.S.C. 1764(a)). Common Carrier Provision.... Does not apply to Applies to all FLPMA grants.

pipeline grants (30 U.S.C. 185(r)). Application form............ BLM Standard Form BLM Standard Form 299 or APD or

299 or APD or Sundry Notice for Sundry Notice for off-lease oil and all off-lease gas access roads. portions of oil and gas pipelines.

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Final Rule as Adopted and Response to Comment

Part 2800--Rights-of-Way Under FLPMA

We received many comments on the proposed rule that addressed issues common to both the part 2800 and part 2880 regulations. So as not to be redundant, we address the comments only in the section they pertain to in the part 2800 regulations. Comments that specifically address the part 2880 regulations are discussed in that section of the preamble.

Subpart 2801--General Information

This subpart contains material that pertains to all of part 2800 and several sections of part 2880. Part 2800 contains policies and procedures related to right-of-way grants BLM issues under the Federal Land Policy and Management Act and part 2880 to right-of-way grants and temporary use permits BLM issues under the Mineral Leasing Act. More specifically, subpart 2801 contains:

(A) An explanation of the objective of BLM's right-of-way program;

(B) Acronyms and definitions used in the regulations; and

(C) Information about which grants the regulations affect and which they do not.

General Comments

Several commenters said that there is no up-to-date data to support the need for increases in existing right-of-way fees or the creation of new ones, and that BLM should prepare a baseline report and annual reports thereafter to document the needed increases. They also said that there have been significant technology increases, as well as staff reorganizations, that have improved efficiencies that should reduce costs. For a discussion of the justification for increasing cost recovery fees, please see the proposed rule at 64 FR 32107 through 32111.

In 1995, BLM program experts analyzed a cross section of right-of- way cases. This analysis showed that the cost of processing right-of- way cases, including labor costs, had increased since 1986 at approximately the same rate as the Implicit Price Deflator-Gross Domestic Product (IPD-GDP). Therefore, the final rule adjusts costs upward based on the IPD-GDP and allows for automatic adjustments based on this indicator. Technological improvements and staff reorganizations that have taken place recently may have yielded improved right-of-way processes in many BLM offices. Since the processing categories in this final rule are based on the time (hours) required to process an application, this final rule takes into account increases in efficiencies. We note, however, that the number of processing hours may be increased by the increasingly complex resource issues BLM encounters when processing grant applications which add to the amount of coordination required to process applications. Increased public involvement in the National Environmental Policy Act (NEPA) process adds extra levels of analysis and review. Comments relating to BLM creating new fees are misdirected since BLM is not proposing any new fees in this rule (see previous subparts 2808 and 2883 and previous sections 2803.1-2 and 2883.1-2).

We suggest that commenters who requested reports justifying the fee increases refer to the preamble discussion in the proposed rule (64 FR 32107 and 32108). A 1995 audit of BLM's cost recovery efforts by the Office of Inspector General (OIG) for the Department of the Interior found BLM was not recovering all the costs of processing applications and recommended that BLM revise its regulations to recover all applicable costs. The audit estimated that BLM incurred about $640,000 in additional expense in excess of the fees collected in 1993. (This shortfall comes to $213 per application, or $800,000 and $336 respectively when adjusted for the change in IPD-GDP.) BLM is following the OIG's suggestions by increasing the costs for processing and monitoring right-of-way applications and providing for future adjustments to the costs based on economic indicators to reflect the costs of inflation. BLM also prepares yearly reports, some to meet requirements imposed by Congress in the Mineral Leasing Act, that discuss the relative numbers and types of cases that we process each year. BLM publishes this data annually in a statistical report that you can find on the Internet at http://www.blm.gov/nhp/browse.htm#annual_reports. While these reports alone do not justify increasing cost

recovery fees, they show that the number of right-of-way authorizations BLM grants and administers continues to increase. As such, the monetary losses projected by the OIG in 1995 continue to increase each year. We did not amend the final rule as a result of these comments.

Several commenters from the oil and gas industry suggested that BLM should not increase processing fees because the bonuses, rents, and royalties industry already pays to the government should cover BLM's right-of-way processing costs. We address this comment here because it could apply to grants issued under either FLPMA or the MLA, as some oil and gas lessees do hold FLPMA rights-of-way to assist in transporting product off-lease.

Congress authorized BLM to recover processing costs, and did so fully aware that BLM was already collecting bonuses, rents, and royalties. Congress is presumed to understand the state of the existing law when it legislates. Bowen v. Massachusetts, 487 U.S. 879, 896 (1988).

In the MLA, Congress specified how mineral royalties and bonuses are distributed to states and to the Treasury (30 U.S.C. 191), and this distribution does not return funds to BLM to cover the costs of processing right-of-way applications. However, as discussed in the preamble to the proposed rule at 64 FR 32107, section 504(g) of FLPMA and section 28(l) of the MLA authorize BLM also to collect the costs to process right-of-way applications. Section 504(g) of FLPMA further provides that the deposit of reimbursements for reasonable costs be placed into a Treasury account to be appropriated to BLM for processing applications.

Also, BLM charges processing fees to everyone who files an application, except those specifically exempted by law or regulation, pursuant to its authorities under the Independent Offices Appropriations Act, as amended, 31 U.S.C. 9701 (IOAA); section 304(a) of FLPMA; Office of Management and Budget Circular A-25; the Department of the Interior Manual 346 DM 1.2 A; and case law (also see the preamble to the proposed rule at 64 FR 32107 and Solicitor's Opinion M- 36987 (December 5, 1996)). Congress clearly intended for agencies to recover processing costs in addition to bonuses, rents, and royalties.

The IOAA states that Federal agencies should be ``self-sustaining to the extent possible,'' and authorizes agency heads to ``prescribe regulations establishing the charge for a service or thing of value provided by the agency.'' Section 304(a) of FLPMA specifically authorizes the Secretary of the Interior to ``establish reasonable filing and service fees and reasonable charges and commissions with respect to applications and other documents relating to the public lands.'' IOAA and FLPMA give BLM authority to charge fees for processing applications, which we interpret to include amendments and assignments.

OMB Circular A-25 sets forth a general policy that a user charge will be assessed against each identifiable recipient for special benefits derived from Federal activities beyond those received by the general public. Departmental Manual 346 DM 1.2A

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requires (unless otherwise prohibited) that a charge, which recovers the bureau's costs, be imposed for services which provide special benefits or privileges above and beyond those which accrue to the public at large.

A particularly relevant court ruling is Mississippi Power & Light Co. v. United States Nuclear Regulatory Commission, 601 F.2d 223 (5th Cir. 1979), cert. denied, 444 U.S. 102 (1980). The court upheld a Nuclear Regulatory Commission (NRC) licensing fee schedule. The court rejected the petitioners' argument that the work of the NRC benefitted the general public solely and that the conferral of a license or permit does not bestow upon the petitioners any special benefit whatsoever. The court concluded: ``A license from the NRC is an absolute prerequisite to operating a nuclear facility, and as such, is a benefit `not shared by other members of society.' '' Likewise, a right-of-way grant is a benefit not shared by other members of society. Therefore, BLM charges applicants for processing their applications for grants because they are seeking a benefit not shared by other members of society.

The commenters' contention that BLM should not charge right-of-way processing fees to the oil and gas industry because the industry already pays bonuses, rentals, and royalties misses the point about processing fees. Congress intends for agencies to be reimbursed for processing costs when the agency action benefits an identifiable party. BLM's processing of right-of-way applications benefits the applicant, who will use the right-of-way to aid its operation. Bonuses, rentals, and royalties are related to the use of the resource and are unrelated to agency processing costs. Congress has provided for agencies to collect both for the use of the resource and for the processing of applications and other documents.

Some of these commenters further suggested that any regulations pertaining to rights-of-way should be combined with existing oil and gas regulations, onshore orders, and notices to lessees and that a separate rulemaking is duplicative. We have decided not to combine this rule with other oil and gas rules. We believe that since both the FLPMA and MLA right-of-way programs are administered under BLM's lands and realty program and because of the many similarities between the various lands and realty regulations, both as a matter of policy and a matter of process, BLM's right-of-way regulations should not be located in the same part in 43 Code of Federal Regulations as BLM's oil and gas regulations.

One commenter suggested that BLM should consider the benefits the public receives from industry upgrading access roads and performing special studies that benefit the public. Previous regulations allowed BLM to reduce cost recovery fees to reflect both public benefits from studies connected with processing an application and special services to the public or a program of the Secretary provided by a project (see previous sections 2808.5(b)(5) and (6). Like previous regulations, the final rule contains provisions for FLPMA right-of-way applicants to pay cost recovery fees that reflect the public service or public benefit derived from a right-of-way grant or its processing (see final sections 2804.20 and 2804.21).

Several commenters said that the proposed automatic fee adjustments appear to be a disincentive for future BLM process improvements. We disagree with the commenters. The automatic fee adjustment provisions in this final rule will not act as a disincentive to continuing our process improvement efforts. Even after this rule becomes final, BLM will continue to examine ways to improve processes. The automatic fee adjustments are intended to increase fees based on an economic indicator that reflects yearly increases in the cost of doing business. We have included automatic fee adjustments because the cost to BLM of going through rulemaking each time fees needed to be adjusted would be prohibitive and inefficient. If during periodic review of the fee structure we determine that the fees or fee structure need to be revised, apart from applying the IPD-GDP, we will propose new rulemaking.

Some commenters said that the fee increases were not legal since they were really special use taxes that must be ``approved by Congress and signed by the President.'' BLM does not agree with the commenter. Clearly, both FLPMA and MLA give BLM authority to collect the reasonable or actual costs of processing right-of-way applications (see 43 U.S.C. 1764(g) and 30 U.S.C. 185(l)). Neither statute imposes a limitation on fee increases. Moreover, the Supreme Court has made clear that agencies may charge for special benefits to identifiable recipients, which is what BLM is doing in this rule. See National Cable Television Association v. U.S., 415 U.S. 336, 341 (1973), and Federal Power Commission v. New England Power, 415 U.S. 345, 349 (1973).

One commenter agreed with the proposal to automatically adjust fees to keep pace with inflation. This provision remains in the final rule.

Some commenters thought that the IPD-GDP was not the appropriate indicator for automatic increases in fees. They thought that the Consumer Price Index would be a better economic indicator to use since, due to streamlining, labor costs have decreased since 1987. We disagree. As we stated in the proposed rule's preamble (see 64 FR 32109), we believe that the IPD-GDP is the correct economic indicator on which to base these fee adjustments since the IPD-GDP more closely reflects the relationship of labor to other costs than do other economic indicators and most of BLM's processing and monitoring costs are related to labor costs.

One commenter stated that BLM was attempting to recover costs in excess of the shortfalls in cost recovery identified by the OIG in 1995, and that the new fees would be indexed annually to guarantee additional income. Further, commenters said that BLM was only allowed to recover reasonable or actual costs. We agree that BLM can only charge reasonable or actual costs for processing right-of-way applications. Final section 2804.14 of the FLPMA regulations requires that you pay the United States the reasonable costs of processing your application, and final section 2884.12 of the MLA regulations requires that you pay the United States the actual costs of processing your application.

We believe the commenter who stated that BLM was attempting to recover more that its shortfall misunderstood the explanation in the proposed rule. In 1995, the OIG sampled 75 of the approximately 3,000 right-of-way cases BLM processed in fiscal year 1993 and determined that there was a shortfall in collected processing fees of $16,000 for those 75 cases. The total estimated shortfall for the 3,000 cases processed was thus at least $640,000 for that one year. The proposed rule stated that the maximum fees that possibly could be generated by the proposed regulations over and above fees already being collected, was approximately $2.7 million annually (see 64 FR 32123). We calculated that figure to show that even under the most extreme circumstances this rule would not be considered economically ``significant'' under Executive Order 12866 (which defines ``significant'' as having an annual economic impact of $100 million or more). The $2.7 million figure does not represent anticipated revenue, but indicates the outside limit of the economic impact of the proposed rule, over and above the fees already being

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collected, if every right-of-way application, including those that were exempted or reduced under previous regulations, were placed at the highest fee category available. Therefore, the difference between $640,000 and $2.7 million does not represent costs in excess of what BLM needs to process grant applications. BLM anticipates that this rule will, on an annual basis, generate additional revenue from processing fees approximately equivalent to the $640,000 shortfall identified by the OIG, corrected for inflation by application of the IPD-GDP.

One commenter said that BLM and the U.S. Forest Service (FS) should adopt the same rules, procedures, and regulations to reduce application costs and review times. We agree. BLM and the FS are working together on parallel regulations to establish procedures that are consistent to the extent possible for the collection of right-of-way processing and monitoring fees (see 64 FR 66341 for the FS proposed rule).

A few commenters said that the difference between FLPMA and MLA rights-of-way should be pointed out in the final rule since it is confusing to the public and BLM. The basic processing steps, fee determination process, and conditions for approval involved in both types of applications are nearly identical. However, there are some differences between the two types of applications and the two parts of the rule, most of which result from distinctions in the statutory authority for the two types of grants. The major differences between the part 2800 and part 2880 regulations are explained in the table and general discussion above.

A few commenters said that instead of the cost recovery fee in the proposed rule, BLM should use a ``minimal impact flat fee'' similar to that proposed by the FS for flowlines, roads and electric lines being installed in a developing field. The FS proposed a ``minimum impact category'' in their rule that would cover one-time authorizations for the use of forest system lands for events such as recreation events, weddings, or bike races or uses where more than 75 people participate (see 64 FR 66341, 66344, and 66350). The BLM requested comments on the need for such a category. Both agencies decided not to establish a ``minimal impact category'' in their final rules. Instead, in this final rule BLM establishes a new processing and monitoring category for all ROW actions where we spend more than one hour but less than eight hours processing the application or monitoring the grant. The FS also plans to issue a similar final rule.

R.S. 2477

Many commenters were concerned that the regulations would impact rights associated with R.S. 2477 roads. One commenter said that before the rule can be finalized, a Federal court must decide which roads are available for rights-of-way as some may be owned by the county under R.S. 2477. Similarly, another commenter said that BLM needs to make sure we own the road before issuing a right-of-way grant. These final regulations do not change the current policy of the Department of the Interior for handling R.S. 2477 issues and apply only to public lands (Part 2800) and Federal lands (Part 2880). Final section 2801.6 makes clear that these regulations do not apply to valid claims under R.S. 2477.

Temporary Use Permits

Several commenters supported the continued use of temporary use permits (TUPs). Some commenters from the oil and gas industry said that we should not eliminate TUPs for FLPMA rights-of-way since the industry needs them for testing and emergency situations. Other commenters said that BLM only needs to be able to authorize the additional use of public land outside a permanent right-of-way, no matter what you call the authorization. We agree with the basic point of the last comment and have so provided in this rule. Moreover, BLM believes there is little difference between approving the use of public land using short term right-of-way grants and approving the use of Federal land with TUPs. Both authorizations require:

(A) The same application procedure;

(B) Compliance with NEPA and land use plans;

(C) Preparation of a decision; and

(D) Execution of an authorizing document.

BLM can authorize all associated uses with a FLPMA grant, whether they are short or long term, and therefore TUPs are not needed. This is consistent with the proposed rule (see 64 FR 32118).

One commenter said that BLM should authorize in a right-of-way grant access roads, temporary landing sites, and lay down areas rather than in a special use permit since these activities are an integral part of the construction operations. We agree and the final rule is consistent with this comment. The same commenter said that short-term incidental activities, such as those short term construction activities that would temporarily require additional width for a right-of-way, or a temporary access road should be permitted for a term and with stipulations, as a right-of-way, not as a special use, because they are tied to a longer term use. We agree with the commenter. Under this final rule, we will issue right-of-way grants under FLPMA with an appropriate term and stipulations for all authorized uses associated with a right-of-way, including short term construction and access needs.

Section 2801.2 What Is the Objective of BLM's Right-of-Way Program?

This section is new to the final rule and explains it is BLM's objective to grant rights-of-way to qualified individuals and business or government entities, and to direct and control the use of rights-of- way on public lands in a manner that:

(A) Protects the natural resources;

(B) Prevents unnecessary or undue degradation to public lands;

(C) Promotes the use of rights-of-way in common; and

(D) Coordinates, to the fullest extent possible, all BLM actions under the regulations with state and local governments, interested individuals, and appropriate quasi-public entities.

We inadvertently left the objectives section out of the proposed rule, but this final section is consistent with previous section 2800.0-2. We added a similar provision to the part 2880 regulations discussed later in this preamble.

Section 2801.5 What Acronyms and Terms Are Used in These Regulations?

This section contains the acronyms and defines the terms that are used in these regulations. Paragraph (a) is new to the final rule and contains acronyms that are frequently used in the final rule. We also amended the definitions section in the final rule by adding several terms, by deleting unnecessary terms, and by amending the definitions of the terms we proposed.

Two terms not defined in the proposed or final regulations are ``suspension'' and ``termination.'' We discuss those terms here because the public and BLM staff often inappropriately use the terms interchangeably. The two terms have very different meanings. Suspensions involve immediately curtailing activities and privileges authorized under a grant for a specified period of time. Suspensions may be ordered to protect public health, safety, or the environment. Terminations, on the other hand, involve ending the term of a grant because the grant has expired or is required by law to terminate, the holder requests and BLM consents to the termination, or the holder has not complied with laws, regulations, or any

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terms and conditions of the grant, including abandonment.

Many comments related to redefining terms used in the proposed rule or adding new terms to make the rule easier to understand.

In the final rule we added a definition of ``actual costs'' to mean the financial measure of resources BLM expends in processing and monitoring right-of-way grants including direct and indirect costs, exclusive of management overhead. We added this definition because ``actual costs'' is one of the criteria spelled out in FLPMA that BLM uses to assess whether costs are reasonable. The term is defined similarly to previous section 2800.0-5(o).

One commenter asked that the final regulation define ``administrative costs of processing,'' as the phrase was vague and subject to interpretation. In the final rule we do not use the phrase ``administrative cost of processing'' and therefore there is no need to define the term.

The Forest Service recommended revising the definition of ``base rent'' to read, in part, as follows:

Base rent means the initial dollar amount required of a facility owner or a facility manager based on the highest value use in their facility, as determined by the communications rent schedule and the population of the community served. If the facility manager rental rate or the facility owner's type of use rental rate is equal to or greater than other assigned rental rates in that facility, then * * *.

In the final rule we moved the definition of ``base rent'' from proposed section 2806.5 to this section. We also modified the final definition to make it easier to understand that when a communication site facility manager's or facility owner's scheduled rent is equal to the rent for the highest use from the communication use rent schedule, the facility manager or facility owner's use determines the base rent. When the value of any other use in the communication site facility exceeds that of the facility manager or facility owner's use, that other use determines the base rent. Although we did not copy the FS proposed language exactly, we followed the suggested meaning of the FS comment in the final definition.

In the final rule we amended the definition of ``casual use'' to mean ``activities ordinarily resulting in no or negligible disturbance of the public lands, resources, or improvements.'' We also replaced the example proposed with ``Surveying, marking routes, and collecting data to use to prepare grant applications.'' We believe the final rule's definition of ``casual use'' is a more accurate and useful description because it recognizes that casual use may cause no disturbance and because it gives examples that are more useful than that provided in the proposed rule.

In the final rule we moved the definition of ``commercial purpose or activity'' from proposed section 2806.5 to this section and modified it to make it easier to understand. In the final rule, we use the term to describe the situation where a holder attempts to produce a profit by allowing the use of its facilities by an additional user. Under these circumstances BLM may assess an appropriate rent for such commercial activities. The holder's use may not otherwise be subject to rent charges under BLM's rental provisions.

In the final rule we moved the definition of ``communication use rent schedule'' from proposed section 2806.5 to this section and modified it to make it easier to determine where a use will fit into the schedule. The final rule also clearly states that the type of use identified on an FCC license does not supersede either the definition found in this subpart or the procedures for calculating rent in subpart 2806. The definitions in this rule are different from those in FCC's rules because our reason for defining them is so we can determine the correct rent for the use of a right-of-way, whereas the FCC regulations define them for entirely different reasons, such as licensing requirements. Therefore, our definitions continue to focus on determining the type of use. However, there may be circumstances where BLM cannot accurately determine the type of communication use and therefore cannot determine the proper category in the rent schedule for the use. Should this occur, BLM may consult with the FCC to help us determine the use, based on our definitions, and therefore determine where the use would fit into the communication use rent schedule.

Several commenters said BLM should change its definition of ``commercial mobile radio service'' (CMRS) (contained in ``communication use rent schedule) because it differs significantly from the regulatory classifications established by Congress and the FCC. They said BLM's definition of CMRS did not identify cellular, personal communication service, or enhanced specialized mobile radio services as specific types of commercial mobile radio services, but instead focused on communication services to individual customers and ancillary communication equipment for operating, maintaining, or monitoring use. One of the commenters suggested that we use the FCC's definition of CMRS. Another commenter said that the definition contravened section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, which mandated that similar mobile services be subject to consistent regulatory definition and urged BLM to adopt FCC definitions in its final rule. We disagree with the commenters. BLM and the FCC have different definitions for the terms because we use the terms for different purposes. The FCC issues licenses for different classifications of primary uses. BLM defines different types of communication uses for rental calculation purposes only.

In the final rule we moved all communication site related definitions from proposed section 2806.5 to this section. For example, we moved the definition of ``customer'' from proposed section 2806.5 to this section. We also modified the definition to make it clear that:

(A) BLM includes private or internal communication uses located in a holder's facility as customer uses; and

(B) Customer uses are not included in the amount of rent owed by a facility owner, facility manager, or tenant unless the facility owner or facility manager is operating the facility for a commercial purpose. This more accurately describes how we charge for customer uses than the proposal and is consistent with existing policy and practice.

Several commenters thought the definition of ``designated right-of- way corridor'' should be deleted because it is not compatible with oil and gas field operational practices. We address this comment here because right-of-way corridors, even those for oil and gas operations, are designated under FLPMA. The commenters said that the spider web of flowlines, gathering lines and roads on specific leases cannot be predicted and would not be conducive to corridors. We retained the definition in the final rule because of the advantages to locating major utility rights-of-way in corridors on public land and because section 503 of FLPMA requires that we use rights-of-way in common to the extent practical. Further, the final rule does not require that rights-of-way for all oil and gas field operations be located in a designated right-of-way corridor. Designation of a right-of-way corridor is a land use planning decision that BLM makes only after fully considering the impacts on other existing and planned land uses, including oil and gas development.

We made minor wording changes to the definition of ``facility'' in the final rule to make it easier to understand. The definition makes it clear that ``facility'' includes the improvements or structures on a right-of-way owned or controlled by the grant or lease holder.

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In the final rule we moved the definition of ``facility manager'' from proposed section 2806.5 to this section. The final definition makes clear that a communication site facility manager does not own or operate its own equipment, but leases space to tenants and customers in a communication facility. We also moved the ``facility owner'' definition from proposed section 2806.5 to this section and reworded it to be clear that a ``facility owner'' owns and operates its own communication equipment in a facility and may or may not lease space to other users in the communication facility. Both definitions are consistent with current policy and practice.

Several commenters said that the definition of ``field examination'' should make it clear that the BLM staff person making a field trip should look at as many rights-of-way and Applications for Permits to Drill as possible in one trip to make the trip as efficient as possible. We agree. Combining several field examinations or other inspections into one field trip is BLM's routine practice. However, we deleted the proposed definition of ``field examination'' from the final rule because we no longer use the term and it is not part of the criteria for determining a cost recovery category in this final rule. For further information, please see the preamble discussion of final section 2804.14.

Several commenters asked what ``reasonable costs'' are and said that BLM should be responsible for paying for NEPA and other studies since it is our responsibility under the law. We use the phrase ``reasonable costs'' in sections 2804.14, 2804.20, and 2805.16. The final rule defines this phrase in section 2801.5, and final section 2804.20 lists the factors from FLPMA that BLM will use in its determination of the reasonable costs for Processing Category 6 or Monitoring Category 6.

We reworded the definition of ``grant'' to state that a grant is any authorization or instrument (e.g., easements, leases, licenses, or permits) issued under Title V of FLPMA, and that ``grant'' includes those authorizations and instruments BLM and its predecessors issued for like purposes prior to the passage of FLPMA under now expired authorities. Therefore, the term ``grant'' includes communications use leases. We use the term ``lease'' for communication site purposes because of the nature of the rights we authorize to the holder of the authorization. Communication use leases allow holders to sublease space to tenants and customers without first obtaining BLM approval. A typical BLM right-of-way grant does not allow holders to sublease.

We received many comments related to the definition of ``hazardous material.'' Many commenters said that the Environmental Protection Agency (EPA) has an established definition of ``hazardous substance'' and that EPA regulates hazardous substances and BLM therefore need not. Some commenters said the definition was overly broad, inconsistent with other regulatory authorities and should be deleted. Several commenters said that the definitions ``hazardous material,'' ``discharge,'' and ``release'' should all be deleted from the rule and that the rule is expanding BLM's jurisdiction beyond what is required by law. Some commenters said the rule changes statutory requirements and regulations on hazardous materials. The commenters said the rule should not weaken or dilute the Resource Conservation and Recovery Act (RCRA) or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or eliminate the exemptions provided the oil and gas industry in those statutes. We have not changed these definitions as a result of these comments. The final rule includes these definitions to make clear the regulations addressing use and management of hazardous materials on Federal and public lands. As noted in the proposed rule's preamble (see 64 FR 32118), right-of-way holders use, store, and transport various hazardous materials on and across public lands. BLM seeks to ensure that those using BLM lands are responsible for damage to health, property, and the environment incurred while using and occupying a right-of-way and that they understand which materials we consider to be hazardous.

The terms ``discharge'' and ``release'' take their meanings from the Clean Water Act (33 U.S.C. 1321(a)(2)) and CERCLA (42 U.S.C. 9601(22)), respectively. The terms broadly address the range of circumstances under which, during the use of a right-of-way, a chemical substance may enter the environment.

The term ``hazardous material'' is also intentionally broad and includes, among others:

(A) Hazardous substances as defined by CERCLA (see 42 U.S.C. 9601(14);

(B) Regulated substances managed in tanks as defined by the Resource Conservation and Recovery Act (RCRA) (see 42 U.S.C. 6991 et seq.);

(C) Oil, as defined by the Oil Pollution Act (see 33 U.S.C. 2701(23)), and the Clean Water Act (see 33 U.S.C. 1321(a)); and

(D) Other substances defined and regulated as ``hazardous'' under applicable Federal, state, tribal, or local law.

We defined ``hazardous material'' by cross-referencing other laws to ensure that all pollutants, contaminants, and hazardous substances, including oil and petroleum products, fall within the definition. Although some commenters stated that BLM should specify hazardous substances of concern, and should not incorporate into its rule definitions taken from other laws, such an approach would be impracticable in light of the large number and types of hazardous substances that can cause harm to health, property, or the environment. In addition, numerous laws, including CERCLA, define ``hazardous substance'' by incorporating definitions found in other laws. (See section 101(14) of CERCLA, 42 U.S.C. 9601(14), and section 1001(23) of the Oil Pollution Act, 33 U.S.C. 2701(23).) Because numerous jurisdictions have adopted definitions of hazardous substances that, in many respects, differ from those in CERCLA, RCRA, the Oil Pollution Act, and the Clean Water Act, BLM included within its definition a catch-all for substances defined as hazardous under Federal, state, tribal, or local law. Rather than cause confusion and inconsistency, as claimed by some commenters, BLM believes the definition fosters consistency in the meaning and application of key terms and provides clear guidance to users of their obligations and liability under these regulations.

BLM disagrees that, by incorporating definitions of environmental terms taken from other laws, we are attempting to expand our authority into areas administered by EPA and state regulatory authorities under environmental laws. BLM is not seeking to supplant EPA and state authorities to regulate environmental laws on Federal and public lands. To the extent that EPA and the state have such authority, nothing in this rule affects it. These definitions apply only to BLM's right-of- way regulations, which seek to ensure that if someone using and occupying a right-of-way issued under these regulations causes harm to health, property, or the environment, the cost of remedying such harm falls on the grant holder, rather than on the public.

Several commenters stated that BLM should delete the term ``hazardous material'' and replace it with ``hazardous substance'' as defined in CERCLA, because using the term ``hazardous material'' could weaken or dilute the exemption granted to the oil and gas industry in CERCLA and RCRA. The commenters misunderstand the purpose of the rule. Nothing in the rule

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affects the exclusion of petroleum from the definition of ``hazardous substance'' under section 101(14) of CERCLA (42 U.S.C. 9601(14)). BLM is not seeking through this rule to enforce CERCLA on Federal or public lands or to regulate users' management of waste under RCRA. Rather, BLM is issuing these regulations to ensure that, as a manager of public lands, it places the risk of harm on the grant holder and not on the public. In this context, the definitions are used in these regulations only as a way to identify which materials we consider to be hazardous and which, therefore, may impact Federal or public lands.

One commenter said that the final rule should define ``holder'' as it is defined in the law, to exclude Federal agencies. The commenter is correct that FLPMA does not include Federal agencies in its definition of holders. However, section 507 of FLPMA clearly provides for rights- of-way for the use of any department or agency of the United States. Title V of FLPMA also applies to any Federal agency that would apply to construct an oil or gas pipeline on public lands. Therefore, we believe it necessary to include Federal agencies in the definition of holders.

In the final rule we added a definition of ``management overhead costs'' to mean the costs associated with the BLM directorate, including all BLM State Directors and the entire Washington Office staff, except where a State Director or Washington Office staff member is required to perform work on a specific right-of-way case. We added the definition because we use the phrase in the definition of actual costs and in final section 2804.20.

In the final rule we also added a definition of ``monetary value of the rights and privileges you seek'' to mean the objective value of what the right-of-way grant is worth in financial terms to the applicant. We added this definition because ``monetary value'' is one of the criteria spelled out in FLPMA that BLM uses to assess whether costs are reasonable and we use the term in final section 2804.20. The meaning of the term is the same as the definition in previous section 2800.0-5(p).

Several commenters said the final rule should define ``monitoring'' in terms of requirements and time frames and that monitoring should not be considered an annual or recurring cost. Another commenter asked if the determination of compliance was part of the ``administrative costs of (renewal) compliance,'' or part of day-to-day monitoring activities. The second comment appears to be asking if compliance inspections prior to renewal of a grant are part of day-to-day monitoring or part of the cost of processing a renewal. In the final rule we added a definition of monitoring, which includes those actions BLM performs to ensure compliance with the terms, conditions, and stipulations of the grant.

Monitoring occurs primarily during the construction and rehabilitation phases of a project. During grant application processing, BLM will estimate the hours we will need to monitor the construction and rehabilitation of a Monitoring Category 1 through 4 application, and we will collect the applicable fees when the applicant accepts the terms, conditions, and stipulations of a grant. For a Category 1 through 4 application, compliance inspections for a renewal are part of the cost of processing the renewal. Monitoring Category 1 through 4 fees are one-time fees. Monitoring for Category 5 Master Agreements and Category 6 projects are in accordance with the terms of the agreement and may include monitoring during the life of the grant through the termination phase of the project.

In the final rule we deleted the definition of ``project'' because there is a common understanding of the term as it is used in this rule.

We also replaced the proposed rule's definition of ``public land'' with a definition more closely following section 103(e) of FLPMA.

In the proposed rule we omitted the definition of ``reasonable costs.'' In the final rule we added the definition of the term, citing the definition in section 304(b) of FLPMA, which is consistent with existing policy and practice.

In the final rule we moved the definition of ``site'' from proposed section 2806.5 to this section.

One commenter supported using the term ``site,'' but recommended a broader definition that would include a geographic area that can accommodate multiple communication facilities under the control of one or more facility managers supporting a combination of recognized communications uses. BLM did not change the definition in response to this comment because we believe the commenter's suggestion is actually more restrictive than the proposed definition. A site is not limited to communication facilities and may contain several other types of right- of-way facilities and uses besides communications facilities.

One commenter said that the definition of ``substantial deviation'' absorbs rights that a Federal agency may already have in an existing grant. As an example, the commenter said that in utility rights-of-way it is common practice for the grant to include terms that allow the holder to construct, modify, and maintain the facilities. The commenter said that if Federal agencies want to do something that is beyond the scope of the grant, they should contact BLM. In the proposed rule BLM provided an explanation of ``substantial deviation'' that was not spelled out in previous regulations (see proposed section 2807.11). We moved the description of substantial deviation from proposed section 2807.11 to final section 2801.5. BLM agrees with the commenter that when an activity is beyond the scope of what is authorized in a grant, the holder should contact BLM before engaging in the activity. We reworded the definition of ``substantial deviation'' to make clear that the notification requirement of proposed section 2807.11(b) applies only in circumstances where the use is outside the scope of an existing grant or outside the boundaries of an existing authorized right-of-way. The requirement does not apply to uses that are in an existing grant. BLM considers adding facilities that are not specifically authorized in the original grant to be a substantial deviation that requires supplemental authorization in the form of a grant amendment.

Several commenters said that as it pertains to the definition of ``temporary use permit,'' public safety is an ``OSHA function,'' not a BLM function. They also said that there should be a definition of ``natural environment'' in the final rule and that under a temporary use permit, there may not be any ``natural environment'' to protect.

In the final rule we deleted the definition of ``temporary use'' from part 2800. Under the final rule, for any use or activity requiring a FLPMA grant for a short duration, BLM will issue a short term right- of-way grant instead of a temporary use permit. When an applicant identifies a short term use during application processing, such as the need for additional work space outside the right-of-way boundary, BLM will approve that use, as appropriate, within the right-of-way grant. When the short term use is identified after a right-of-way grant for a project has been executed, BLM will approve the additional short term use, as appropriate, in a separate short term grant or an amendment to the grant. There is no specified term or duration for a short term grant and BLM will determine the term on a case by case basis.

Under the final rule for part 2880, we will continue to issue TUPs for uses associated with MLA right-of-way

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grants. We disagree with commenters' suggestion that the definition of TUPs should not address public safety. The MLA specifically states that BLM may issue TUPS to ``protect the natural environment or public safety'' (see 30 U.S.C. 185(e)). We also disagree with the commenters that said under a TUP there may not be any natural environment to protect. The ``natural environment'' is the land for which BLM issues the original grant and any attendant TUP, which holders must protect.

In the final rule we moved the definition of ``tenant'' from proposed section 2806.5 to this section. The final rule's definition is similar, but more specific, than the previous rule's definition (see previous section 2800.0-5(bb)), and is also consistent with the proposed rule.

We use the term ``third party'' in the proposed and final rules. We did not define it in the proposal, but do define it in the final rule to make clear that BLM considers a third party to be any party aside from the applicant, holder, or BLM.

In the final rule we added a definition of ``tramway'' to eliminate confusion over the meaning of the term. One of the right-of-way uses FLPMA specifically mentions is tramways (see 43 U.S.C. 1761(a)(6)). BLM administers a large amount of timber property in western Oregon and on other public lands where the term is commonly used to describe systems for transporting and hauling timber from the forest. Previous regulations did not define the term and there has been ongoing confusion over what type of transportation system qualifies as a tramway. Therefore, in the final rule we added a definition of tramway that is consistent with common usage of the word and existing policy.

One commenter said that we should add a definition of ``trespass'' to the final rule, while other commenters said that the proposed definition of ``trespass'' was too open ended and gave BLM too much discretion. In the proposed rule we defined the term ``trespass'' in the body of the regulatory text in section 2808.10, as we do in the final rule. We disagree with the commenter that the definition of the term is too open ended and gives BLM too much discretion. The final definition is consistent with previous regulations (see previous sections 2800.0-5(u), (v), and (w)) and does not give BLM any more discretion than do previous rules.

Several commenters said that the definition of ``unnecessary and undue degradation'' should be changed to ``unnecessary and undue damage'' and should not include ``non-willful'' acts. Other commenters said that ``degradation'' can mean almost anything and does not provide guidance to industry on what to avoid. The term ``unnecessary or undue degradation'' is statutory in origin and for that reason we decline to change ``degradation'' to ``damage.'' The term appears in section 302(b) of FLPMA (43 U.S.C. 1732(b) which states that ``In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.''

In our 1999 proposed rule, we defined the term ``unnecessary and undue degradation'' to mean ``surface disturbance that is greater than that which would occur when the same or a similar activity is being done by a prudent person in a usual, customary, and proficient manner that considers the effects of the activity on other resources and land uses outside the area of the activity. The disturbance may be either willful or nonwillful.'' We have decided to delete this proposed definition (and the existing definition at 43 CFR 2800.0-5(x)) because we find it to be unnecessary. Issuing a right-of-way grant is a highly discretionary act on BLM's part. In final section 2804.26(a), BLM has established standards for exercising this discretion. For instance, as final section 2804.26 makes clear, an application may be denied if the proposed use is not in the public interest or is inconsistent with the purpose for which we manage the public lands.

``Unnecessary or undue degradation'' sets a standard far less stringent that those in section 2804.26. The Secretary, through BLM, will continue to observe the ``unnecessary or undue degradation'' standard in addressing a right-of-way application and in assessing and administering the terms and conditions and conditions of a grant, but will allow the facts posed by a particular situation give meaning to this phrase.

In the final rule we moved the definition of ``zone'' from proposed section 2806.5 to this section. We amended the definition in the final rule to more accurately describe a zone as ``one of eight geographic groupings necessary for linear right-of-way rent assessment purposes, covering all lands in the contiguous United States.''

Section 2801.6 Scope

This section explains what these final regulations apply to and what the final regulations do not apply to. In this final rule we combined proposed sections 2801.7 and 2801.8 into this section. We also amended this section by adding new paragraphs (b)(5), (6), and (7).

We added new paragraph (b)(5) to alleviate the concerns of some commenters that this rule would have a negative effect on rights under R.S. 2477.

We added new paragraph (b)(6) to clarify that the right-of-way regulations do not apply to existing rights for private reservoirs, ditches, and canals established prior to FLPMA under the Mining Act of July 26, 1866. We think this clarification will be helpful in eliminating any confusion associated with the previous regulatory language found in former section 2801.4.

In the 1866 Act, Congress granted Federal protection for vested state law-based water rights and rights-of-way for ditches, canals and other structures necessary for the use of water. Under the Act, a private party could acquire a right-of-way across Federal lands without any action by the government--no application or filing with the government was necessary, and no governmental approval was required. The right-of-way vested once a ditch or canal was constructed and a water right acquired. Once the right-of-way was created, it existed in perpetuity and included the right to operate and maintain the ditch, canal or conduit within the right-of-way. See, e.g., Utah Power & Light v. United States, 243 U.S. 389, 405 (1917); Gorrie v. Weiser Irr. Dist., 153 P. 561, 562 (Id. 1915); Perry v. Reynolds, 122 P.2d 508, 511 (Id. 1942); United States v. Big Horn Land & Cattle Co., 17 F.2d 357, 366 (8th Cir. 1927).

Other statutes enacted after the 1866 Act also allowed private parties to acquire rights-of-way across Federal lands. Unlike 1866 Act rights-of-way, however, these other statutes required government action before rights-of-way vested. For example, the Act of March 3, 1891 required an applicant to file and get government approval of a map before the right-of-way vested. The 1891 Act differed from the 1866 Act in several other ways, too. Unlike the 1866 Act, the 1891 Act defined the physical extent of the right-of-way. In addition, the 1891 Act allowed for establishment of rights-of-way for irrigation purposes on reserved lands; the 1866 Act did not apply to reserved lands.

When FLPMA was enacted in 1976, it repealed the existing laws governing rights-of-way and replaced them with a single mechanism for establishing a right-of-way over the public lands. Section 501(a) of FLPMA provides the Secretary of the Interior with authority to ``grant, issue, or renew rights-of-way over, upon, under, or through'' the

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public lands. 43 U.S.C. 1761. In addition, FLPMA provides the Secretary with authority to impose terms and conditions on these rights-of-way that, among other things, ``minimize damage to scenic and esthetic values and fish and wildlife habitat and otherwise protect the environment.'' Section 505(a); 43 U.S.C. 1765.

But FLPMA did not terminate rights-of-way established under the prior statutes. Instead, FLPMA expressly preserved and protected such pre-existing private rights-of-way. Section 701(a) of FLPMA provides that FLPMA does not terminate ``any valid lease, permit, patent, right- of-way, or other land use right or authorization'' existing at the time of FLPMA's enactment. 43 U.S.C. 1701, note 1. In addition, section 701(h) of FLPMA provides that all actions taken by the Secretary in the exercise of her authority under FLPMA are ``subject to valid existing rights.'' 43 U.S.C. 1701, note 1. Together, these provisions of FLPMA ensure that pre-FLPMA rights-of-way are protected and preserved.

This final rule therefore reflects long-standing law and BLM's historical practice by clarifying that 1866 Act rights-of-way are not subject to regulation so long as a right-of-way is being operated and maintained in accordance with the scope of the original rights granted. Because rights-of-way under the 1866 Act are perpetual and do not require renewal, no authorization under FLPMA exists or is required in the future. Therefore, unless a right-of-way holder undertakes activities that will result in a substantial deviation in the location of the ditch or canal, or a substantial deviation in the authorized use, no opportunity exists for BLM to step in and regulate a right-of- way by imposing terms and conditions on the right-of-way's operation and maintenance. Simply stated, there is no current BLM authorization to which such terms and conditions could be attached. Therefore, Title V of FLPMA and BLM's right-of-way regulations do not apply to these rights-of-way.

This does not mean, however, that BLM cannot take action to protect the public lands when a holder of an 1866 Act right-of-way undertakes activities that are inconsistent with the original right-of-way. In such a situation, if the right-of-way holder does not approach BLM for a FLPMA permit authorizing such activities, FLPMA and BLM's trespass regulations provide BLM with the discretion to take an enforcement action against the right-of-way holder.

Title III of FLPMA provides the Secretary of the Interior with broad law enforcement authority. Section 302(b) provides that the Secretary ``shall * * * take any action necessary to prevent unnecessary or undue degradation of the lands.'' 43 U.S.C. 1732(b). In addition, section 303(g) provides: ``The use, occupancy, or development of any portion of the public lands contrary to any regulation of the Secretary or other responsible authority, or contrary to any order issued pursuant to any such regulation, is unlawful and prohibited.'' 43 U.S.C. 1733(g). BLM's trespass regulations, at 43 CFR part 9230, specify that, among other things, the ``extraction, severance, injury, or removal of timber or other vegetative resources or mineral materials from public lands under the jurisdiction of the Department of the Interior, except when authorized by law and the regulations of the Department, is an act of trespass.'' 43 CFR 9239.0-7. Trespassers are liable to the United States in a civil action for damages and may be prosecuted under criminal law. Therefore, with respect to 1866 Act rights-of-way, Section 302(b) of FLPMA and the trespass regulations provide BLM with the authority to take an enforcement action against a right-of-way holder undertaking activities inconsistent with the original grant.

We added new paragraph (b)(7) to address statutory changes to the Federal Power Act (FPA) and FLPMA. These changes incorporate existing policy and implement FPA and FLPMA amendments.

One commenter stated that the final rule should state if there are any rights-of-way outside the scope of the rule and should address rights-of-way in wilderness areas or ``short term rights-of-way on wilderness lands.'' We did not amend the final rule as a result of these comments. However, the final rule explains what the final regulations do not apply to and includes language in paragraph (b)(3) that states that the regulations do not apply to ``Lands within designated wilderness areas, although BLM may authorize some uses under parts 2920 and 6300 of this chapter.''

Section 2801.7 Information Collection Matters

We deleted this section from the final rule because it is not necessary to publish this information in the text of the regulations.

These regulations contain information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), we submitted a copy of the proposed information collection requirements to the Office of Management and Budget (OMB) for review. OMB approved the information collection requirements under Control Number 1004-0189, which expires October 31, 2005.

Section 2801.8 Severability

This section explains that if any court holds provisions of these regulations invalid, the remainder of the rules are not affected. This principle has always applied to BLM regulations, but it is stated here for clarity. This section was proposed as section 2801.10. We made editorial changes to the section, but its effect is the same as the proposed rule.

Section 2801.9 When Do I Need a Grant?

This section is a combination of proposed sections 2801.7 and 2801.8. It explains that you must have a grant when you plan to use public lands for certain systems or facilities, whether over, under, on, or through public lands. The section lists examples of the types of systems or facilities that require grants. The section also explains additional requirements for rights-of-way for generating, transmitting, or distributing energy. Finally, the section provides a cross-reference to BLM regulations for rights-of-way for transporting oil and gas resources.

Section 2801.10 How Do I Appeal a BLM Decision Issued Under These Regulations?

This is a new section to these regulations. The proposed rule listed the basic contents of this section for each action which allows a right to appeal. This final rule replaces the appeals language in each of those sections with a cross-reference to this section. This eliminates redundancy and brings this rule in line with other BLM regulations that handle appeals sections in a similar manner.

We received several comments on the subject of appeals. One commenter wanted the regulations to state whether or not applicants had the right of appeal if BLM rejected their applications. As a result of this comment, we amended final section 2804.26 and it now states that applicants have the right of appeal to the Interior Board of Land Appeals (IBLA) if BLM denies their applications.

Several commenters wanted the opportunity for State Director review for initial disagreements with BLM before BLM referred the matter to the IBLA. One commenter suggested language to accomplish this administrative review. Although other BLM programs have adopted these reviews, BLM did not add State Director review provisions to this final rule. When you appeal a decision to IBLA, BLM is not prohibited from

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reconsidering or discussing the appealed decision with you or other interested parties. If BLM decides to rescind or amend the appealed decision as a result of additional review or discussion with you or other interested parties, we may rescind or amend only after asking IBLA to remand the matter for BLM's further consideration and IBLA's consent to this request. We encourage BLM personnel, grant holders, and applicants to work toward informal resolution of disputes over BLM decisions proposed or made by BLM both before and after appeals are filed. In BLM's right-of-way program these informal reviews and discussions have been and are a useful way to resolve disputes without unnecessarily formal mid-level reviews, such as State Director reviews.

Several commenters said that there is no part 4 in this title. The commenters are mistaken. Part 4 of 43 CFR is in a volume separate from the volume where BLM's regulations are located. Parts 1 through 999, including part 4, are in the first volume of 43 CFR and parts 1000 through 10010, including BLM's regulations, are in the second volume.

Subpart 2802--Lands Available for FLPMA Grants

This subpart describes the lands that are available for rights-of- way and how BLM designates corridors. Generally, BLM designates lands as suitable for right-of-way uses through its land use planning process, as described in FLPMA and existing regulations at 43 CFR 1610. During this process BLM prepares land-use plans, called either ``resource management plans'' or ``plan amendments.'' After going through a process in which the public helps BLM identify issues the plan should address, BLM then:

(A) Identifies resource and information needs;

(B) Formulates alternatives;

(C) Analyzes the effects of the alternatives;

(D) Prepares a draft plan and environmental document for public review and comment; and

(E) Determines what resource and land-use decisions to make in the approved plan. Among these decisions are what land uses are available for right-of-way grants. Land use plans designate lands as:

(1) Open to right-of-way grants;

(2) Right-of-way avoidance areas (where right-of-way grants would not be issued unless there were no other available alternatives); or

(3) Right-of-way exclusion areas where right-of-way grants would not be approved for any reason. Land use plans also designate right-of- way corridors.

Section 2802.10 What Lands Are Available for Grants?

This section explains that BLM grants rights-of-way for lands under its jurisdiction and lists exceptions when we would not issue a right- of-way grant. These exceptions include instances when a statute, regulation, or public land order excluded right-of-way uses, the lands are segregated or withdrawn from right-of-way uses, or when BLM identifies areas as inappropriate in a land use plan or in an analysis of an application. The section explains that BLM may also require common use of rights-of-way and may require location of a right-of-way within an existing corridor. This section states that BLM will designate right-of-way corridors through land use plan decisions. This section also suggests that you contact BLM to determine if the lands you are considering for a right-of-way are available for right-of-way use.

We added new paragraphs (a)(1), (a)(2), and (a)(3) to the final rule to more completely explain the reasons why certain lands under our jurisdiction would not be available for a right-of-way use. These new provisions to the rule are consistent with the proposed rule, our existing regulations at part 2300 (land withdrawals), subpart 2091 (segregation and opening of lands), and part 1600 (planning, programming, and budgeting). We also eliminated the discussion in proposed section 2802.10(b) of notifying the public ``by appropriate means'' of designated corridors because it was vague and because we already require public notification as part of the land use planning process.

Several commenters said that BLM should replace ``may'' with ``will'' where it appears in proposed paragraphs (a) and (b) of this section. We did not make the change to the final rule in either proposed paragraph (a) or (b). Issuing a right-of-way grant remains a highly discretionary act on our part. Section 501(a) of FLPMA authorizes, but does not compel, the Secretary to issue rights-of-way over, upon, under, or through the public lands (see 43 U.S.C. 1761(a)). Section 503 of FLPMA requires common use of a right-of-way but only ``to the extent practical'' (see 43 U.S.C. 1763). There may be circumstances where BLM determines that it is not in the public interest to issue a right-of-way grant or to require common use of a right-of-way area even when the lands are open to the development of right-of-way grants. Therefore, the final rule continues to leave the discretion to issue a grant or require common right-of-way use in BLM's hands.

One commenter said that in paragraph (b) of this section, we should replace ``require'' with ``propose.'' We did not change the final rule as suggested by the commenter. As noted above, Section 503 of FLPMA provides that BLM, to the extent practical, require, not simply propose, common use of a right-of-way. BLM is therefore required to issue rights-of-way in common where it is practical and replacing ``require'' with ``propose'' would be inconsistent with the statute.

One commenter said that BLM must consider the location of existing assets and facilities when determining whether land is available. Another commenter said that BLM should not require common use of a corridor if location in the corridor would render use of existing facilities infeasible or burdensome. We agree with the commenters. When issuing rights-of-way in common, or requiring that a right-of-way be issued in or adjacent to an existing corridor, BLM will consider whether or not the uses are compatible. BLM will also consider the possible impacts a proposed use may place on the future usability of a corridor. In other words, if a proposed right-of-way use would render a corridor unavailable for any future right-of-way uses, BLM could decide that the proposed use should be located in some alternate location.

Several commenters suggested inserting ``or'' between ``regulation'' and ``planning'' in proposed paragraph (a), and deleting the rest of the sentence after ``planning.'' Commenters made this suggestion because they said environmental and other resource conditions should already be addressed in the land management planning process. When BLM completes, updates, or amends a land use plan we undertake an environmental analysis. However, when a project is proposed, BLM will complete a site-specific NEPA analysis. NEPA requires the site-specific environmental analysis and it is designed to identify how the project-specific activities may impact the environment. The planning documents, on the other hand, are more general in nature and generally do not and cannot address site-specific impacts of a given project. Therefore, we made no changes to the final rule as a result of this comment.

The same commenters recommended that we replace ``require'' with ``encourage'' in proposed paragraph (b) since access roads, gathering lines, and flowlines do not always fit neatly into existing corridors. The commenter said

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that such a requirement could render an oil and gas project uneconomic. We did not amend this section as suggested by the commenter. As stated above, section 503 of FLPMA says that BLM must require common use of rights-of-way to the extent it is practical. When determining whether it is practical to require a right-of-way to be located in a corridor, BLM will consider whether or not the new use will be compatible with the existing use. If it is not, BLM will informally work with you to determine a right-of-way location that will both protect the public interest and meet your needs. These types of issues are best resolved during the preapplication meeting.

One commenter said that the regulations should make clear that communication site facility managers and facility owners need to allow shared use of a right-of-way for pipelines and communications cables. The commenter said that there should be a minimal process for using existing pipeline rights-of-way for fiber optic cables and the like. The commenter said that this will serve the public and facilitate the installation of facilities with minimal damage to BLM lands. We agree with the commenter and encourage co-location of fiber optic facilities with power line structures and within pipeline rights-of-way. One of the advantages of co-locating uses in one right-of-way is that NEPA work has already been done for the existing use and therefore the amount of additional environmental analysis necessary for any additional use would normally be minimal unless the new use is significantly different or other reasons apply. BLM currently has a categorical exclusion for the granting of rights-of-way wholly within the boundary of compatibly developed rights-of-way. Because exceptions to this categorical exclusion may apply, BLM will determine the amount of analysis and additional work for additional uses on a case-by-case basis. The amount of analysis necessary cannot be determined by a rule of general applicability, and as a result we did not amend the rule to address the comment.

Several commenters said that once BLM designates corridors in land- use plans, it should require common use of the corridor and location of new rights-of-way within the corridor to the extent possible. The commenters said that the proposed regulations give too much discretion. As is stated in the proposed rule's preamble (see 64 FR 32118), BLM designates right-of-way corridors and issues grants within these corridors to the maximum extent possible, but due to resource concerns and conflicts between uses, it is not always possible to restrict uses to designated corridors. We disagree with the commenters that the proposed regulations give BLM too much discretion in issuing grants in right-of-way corridors. BLM must have the flexibility to choose whether or not a use should be located in a right-of-way corridor to make sure uses are compatible and to ensure that the public interest is protected.

Several commenters said that forcing the use of corridors will make lease operations uneconomical and result in a waste of minerals and associated royalties from the public good. BLM agrees that the designation of a corridor in a land use plan can impact, in some cases, the development of mineral resources. The land use planning process described above assures that our analysis considers effects on other resource uses such as impacts to mineral extraction. It is frequently these same mineral extraction interests that need right-of-way corridors to support the transportation of materials to and from their operations. We made no changes to the final rule as a result of this comment.

One commenter said that requiring common use of a right-of-way may be unpractical, for safety considerations, in designing power lines. BLM considers issues of safety when requiring common use of a right-of- way. If BLM determines that common use of a right-of-way is unsafe, BLM will not require it.

Section 2802.11 How Does BLM Designate Corridors?

This section explains that BLM may designate corridors during the land use planning process described in 43 CFR 1610. During this process BLM coordinates with other Federal agencies, state, local, and tribal governments, and the public to identify resource-related issues, concerns, and needs. The process results in a resource management plan or plan amendment, which addresses to what extent you may use public lands and resources for specific purposes. It also explains the factors that BLM considers when determining the locations and boundaries of right-of-way corridors.

Paragraph (a) is new to the final rule and generally explains how we designate corridors in our land use planning process, which is discussed in greater detail in subpart 1610 of existing regulations. This provision provides helpful background to an understanding of paragraph (b). Final paragraph (b) lists the factors BLM considers when designating corridors. Final paragraphs (c) and (d) are new to this final rule and are consistent with section 503 of FLPMA and existing policy.

Several commenters said that this section should identify how corridors are designated. The commenters also said that the process of designation through the land planning process or as provided by section 503 of FLPMA also needs to be briefly described. Proposed and final section 2802.11 identify the factors BLM considers when designating corridors. Therefore, the regulations already address the first part of the comment. As for the second part of the comment, we do not believe these rules should address the land use planning process since BLM's existing regulations at subpart 1610 already address the process and it is not necessary to repeat those regulations here. Final paragraph (a) of this section explains that as part of the planning process under subpart 1610, BLM designates corridors. You can find additional information about the land use planning process in section 202 of FLPMA (see 43 U.S.C. 1712).

Several commenters said that the regulations should emphasize the advantages of reduced NEPA requirements, processing time, and costs that could occur through requiring common use of existing or designated corridors. We agree with the commenters that common use of rights-of- way and proper corridor planning and use can lead to reduced processing times and decreased costs. However, we do not believe it appropriate to discuss motivating factors for using corridors in our implementing regulations. Discussions about cost savings and processing time can occur during the preapplication meetings discussed elsewhere in this final rule.

Subpart 2803--Qualifications for Holding Grants

This subpart describes the qualifications necessary for applicants to receive right-of-way grants. It discusses:

(A) Who may hold a FLPMA grant;

(B) Whether another entity can act on a grant holder's behalf; and

(C) What happens to a grant if the holder dies.

Section 2803.10 Who Can Hold a Grant?

This section explains the qualifications for holding a grant and requires that you are:

(A) An individual, association, corporation, partnership, or similar business entity, or a Federal, state, tribal, or local government;

(B) Technically and financially able to construct, operate, maintain, and terminate the grant; and

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(C) Of legal age and authorized to do business in the state where the right-of-way would be located.

This section is essentially the same as that proposed, except that we added a new paragraph (c) stating that you must be of legal age and authorized to do business in the state where the right-of-way is located. Although this provision was not in the proposed rule, it is consistent with previous section 2802.3(a)(5).

One commenter asked if BLM is authorized to issue grants to foreign entities and if so, what the qualifications are. FLPMA is silent on the subject of whether BLM may issue a FLPMA grant to foreign entities. The part 2800 regulations are similarly silent. Regarding MLA requirements, however, 30 U.S.C. 185(a) makes the qualifications provisions of 30 U.S.C. 181 applicable to section 185. The part 2880 regulations reflect these considerations. For example, final section 2883.10 states in part:

To hold a grant or TUP [temporary use permit] under these regulations, you must be a United States citizen, an association of such citizens, or a corporation * * * organized under the laws of the United States, or of any state therein.

As in previous section 2802.3(a)(5), final section 2803.10 requires all entities seeking a right-of-way grant under FLPMA to be qualified to do business in the state where the right-of-way is located. Thus state law must be examined to determine the eligibility of a right-of- way applicant. Final section 2803.10 is substantially the same as previous regulations.

Section 2803.11 (Proposed) Must I Submit Proof of My Qualifications With My Application?

Due to reorganization, we moved the substance of this proposed section to paragraph (b) of final section 2804.12. Please see that section for a discussion of this matter.

Section 2803.11 (Final) Can Another Person Act on My Behalf?

This section allows another person to act on your behalf if you have authorized the person to do so under the laws of the state where the right-of-way would be or is located. This section is slightly different from what we proposed in that the final rule requires that you follow the laws of the state where the right-of-way would be or is located. We believe this is reasonable, consistent with the intent of the proposed rule, but most importantly, it sets the appropriate legal standard.

Section 2803.12 What Happens to My Grant If I Die?

This section explains that if an applicant or grant holder dies, any inheritable interest in an application or grant will be distributed under state law. In this rule, the term ``inheritable'' is not used in its technical sense. Here, it refers to property passing by will or intestate succession.

If the distributee of a grant is not qualified to hold a grant under section 2803.10, BLM will recognize the distributee as grant holder and allow the distributee to hold its interest in the grant for up to two years. During that period, the distributee must either become qualified or divest itself of the interest. We added this provision to the final rule to make sure we have consistent processes in place for cases where an applicant or a grant holder dies.

Subpart 2804--Applying for FLPMA Grants

This subpart contains information and policies concerning how to apply for right-of-way grants under FLPMA. It discusses:

(A) Where applicants should file their applications;

(B) What information BLM needs to process their applications;

(C) Filing fees for the various categories of applications;

(D) Exemptions from paying filing fees and criteria for establishing reasonable costs; and

(E) How BLM processes applications, including a customer service standard.

Section 2804.10 What Should I Do Before I File My Application?

This section encourages you to schedule a preapplication meeting with BLM to discuss your right-of-way grant application. This section also explains that we may share any information you provide to us at this initial meeting with other agencies to help us to better coordinate the application process. Final section 2804.13 provides that we will keep confidential any information you submit that you identify as such, to the extent allowed by law.

We received no substantive comments on this section and except for editorial changes, it remains as proposed.

Section 2804.11 Where Do I File My Grant Application?

This section explains where you must file your right-of-way grant application.

We received no substantive comments on this section and except for editorial changes, this section remains as proposed.

Section 2804.12 What Information Must I Submit in My Application?

This section explains the information you must include in your application. It requires you to file your application on Standard Form 299 and fill in the required information. This includes a description of the project, a project schedule, the estimated life of the project, and construction and reclamation techniques. You must also include a map of the project, a statement of your financial and technical ability to run the project, and any plans, contracts, and agreements concerning the proposed use(s) on the right-of-way and its effect on competition. We require a complete proposed project description to process the application, to complete an accurate NEPA analysis, and to make a determination whether the proposed use(s) indicate existing or potential competitive interest. BLM requires materials such as plans, contracts, agreements, etc., only if they have a direct bearing on the proposed right-of-way uses. Section 501(b)(1) of FLPMA (and this final rule at section 2804.12(a)(6)) requires a right-of-way applicant to submit and disclose plans, contracts, agreements, or other information reasonably related to the use, or intended use, of a proposed right-of- way, ``including its effect on competition,'' which the Secretary deems necessary. BLM typically relies on application filing activity as the indicator of competitive interest, but may also examine the plans, contracts, and other information supplied by an applicant to make a determination on competitive interest. We usually process applications on a first come-first serve basis, unless:

(A) Application activity indicates there is a competitive interest; or

(B) Planning decisions, applicant plans, contracts, agreements, or other information indicate there is a competitive interest.

This section also requires business entities to submit additional information about their business. Paragraph (b) of this section was proposed as section 2803.11. BLM requires the information in paragraph (b) to verify the legal status of applicants, including verification that the persons representing the applicant are authorized to do so. Under this paragraph a business entity must submit copies of the formal documents creating the entity and evidence that the party signing the grant application has authority to act on the business entity's behalf. To make it clearer, this final rule uses different terminology than the

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proposed rule, but the effect of this final rule is the same as that proposed.

This section also informs you that if you are an oil and gas lessee or operator, and you need a right-of-way for access to your production facilities or oil and gas lease, you may include your right-of-way requirements in your Application for Permit to Drill or Sundry Notice. This improves processing and is consistent with existing policy.

One change from proposed section 2804.12 is our deletion of ``On the form, give your name and address and the name and address of any authorized agent * * *'' from the second sentence of proposed paragraph (a). We did this because the form itself requires you to submit this information and therefore these words are redundant. In final paragraph (a)(2), we added ``operating'' and ``terminating'' the project to the list of things you need to address in your application to ensure that you describe a proposed project completely. As a result of these changes, final paragraph (a)(2) now includes all phases of a proposed project.

In final paragraph (a)(4), the term ``facilities'' replaces the term ``improvements.'' We made this change to make this section consistent with the rest of the rule and because the definition of ``facility'' includes structures and improvements.

In final paragraph (b)(4), we added text concerning identification of the number and percentage of any class of voting shares of the entity which certain shareholder(s) are authorized to vote. This makes final paragraph (b)(4) consistent with business entity qualification requirements in section 501(b)(2)(B) of FLPMA and previous section 2882.2-1(b)(2). We made the same type of change in final paragraphs (b)(6) and (b)(7) by adding ``directly or indirectly,'' to be consistent with business entity requirements in section 501(b)(2)(C) of FLPMA and previous section 2882.2-1(b)(3) and final section 2883.12 of this rule. Also, in final paragraph (d) of this section we corrected the citation to BLM's oil and gas operating regulations.

One commenter said that proposed section 2804.12(a)(6) is vague. The commenter also said that we should define ``competition'' in the final rule. Section 501(b)(1) of FLPMA requires a right-of-way applicant to submit and disclose those plans, contracts, agreements, and other information reasonably related to the use, or intended use, of the right-of-way, ``including its effect on competition.'' As discussed above, BLM typically relies on application filing activity to determine whether competition exits, but we may also ask an applicant for additional information concerning the proposed right-of-way to verify whether competitive conditions exist. We believe that adding a definition of competition to this regulation would not add any new or useful information to the common understanding of the word, and therefore did not add a definition of the term.

Several commenters said the final rule should provide for applicant-prepared Environmental Assessments and third-party prepared Environmental Impact Statements. The commenters said this practice is authorized by Council on Environmental Quality (CEQ) regulations at 40 CFR 1506.5. Environmental documentation (resource surveys and reports, environmental assessments, and environmental impact statements) prepared by third parties or provided by right-of-way applicants is a well-established and common practice under existing BLM NEPA guidance in H-1790-1. Chapter V-B.1.h, states contracting may be used for preparation of an environmental impact statement (EIS) or for certain analyses to support preparation of an EIS and that either standard Federal contracting procedures or third-party contracting approaches may be followed. H-1790-1, Appendix 7.B. further clarifies that a third-party contract is an option when BLM cannot prepare a required NEPA analysis due to time, budget, or other limitations or when either the BLM or the applicant requests that a contractor be hired to prepare the EA or EIS. Therefore, adding this guidance to the final rule would be repetitive and unnecessary.

We also agree with the commenters that under CEQ rules the practice is acceptable. Although this practice is not specifically restated in the final rule under section 2804.12, this option remains available to applicants. BLM will consider environmental documentation offered by or agreed to by an applicant in determining the appropriate cost recovery category under section 2804.14. The environmental documentation, however, must meet BLM standards, and any conclusions drawn from the documentation remain BLM's jurisdiction. This final rule contains no provision to either discourage or prohibit applicants from providing environmental documentation for BLM to use to determine appropriate cost recovery categories and process applications more efficiently and timely.

Several commenters said that the final rule should make clear that the additional information allowed under paragraph (c) of this section should be limited to requests for ``relevant'' information or all ``pertinent'' information, and any requirements in the regulations to ask for more information is ``too broad and open-ended,'' and could result in limitless requests for additional information. Final section 2804.12(c) states that BLM can require an applicant to provide additional information at any time while processing an application. The comment implies that BLM could require information not relevant to evaluating an application. We disagree. BLM will implement this provision in a common sense manner, limiting requests to only that additional information that is both relevant and necessary for BLM to properly evaluate a right-of-way proposal and to process an application in an efficient and timely manner.

Examples of the type of information we may require are provided by a reference to final section 2884.11(c).

Several commenters objected to the requirement to give BLM a plan of development and stated that it is overly burdensome, expensive, and unnecessary. Final section 2804.25(b) does not require submission of a plan of development as a universal requirement for all applicants. BLM would require a plan of development only where detailed information about a proposed right-of-way development and use is both relevant and necessary for BLM to properly analyze a proposal and render a decision. This is consistent with proposed sections 2804.20(b).

A few commenters said that BLM should require an applicant to provide an ``initial environmental assessment'' as part of the application since that would enable BLM, other Federal agencies, and state governments to better assess impacts on endangered species, cultural resources, and the like. BLM disagrees with the commenter and we did not amend the final rule as a result of this comment. Because we receive a wide range of applications in terms of scope and impact, we believe that a universal requirement that all applicants be required to submit environmental studies would be inappropriate. However, under this final rule, applicants may continue to volunteer such information to facilitate the processing of an application. Under final sections 2804.12(c) and 2804.25(b), BLM may require an applicant to provide this type of information if we determine it is necessary to process an application.

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Section 2804.13 Will BLM Keep My Information Confidential?

This section makes it clear that BLM will keep confidential any information in your application that you mark as ``confidential'' or ``proprietary'' to the extent allowed by law.

We amended this section slightly by replacing ``to the extent allowed under the Freedom of Information Act (5 U.S.C. 552)'' with ``to the extent allowed by law'' to be consistent with other BLM regulations. We received no substantive comments on this section.

Section 2804.14 What Is the Processing Fee for a Grant Application?

This section requires you to submit a processing fee for a right- of-way grant application before BLM incurs the costs to process your application.

This final rule changes the terminology describing this fee. In the proposed rule we used the phrase ``filing fee'' to describe the fee. The final rule uses the phrase ``processing fee'' because that term more accurately describes the fee.

We added a new provision to paragraph (b) of this section which explains that there is no fee if BLM takes one hour or less to process your application. We believe that the minimal costs involved to process an application requiring one hour or less of work does not justify charging a fee.

We added a provision at final section 2804.14(f) that we inadvertently omitted from the proposed rule. This provision allows applicants to pay full actual costs for processing applications and monitoring grants. Although FLPMA requires the Secretary to consider the factors at section 304(b) of FLPMA in determining reasonable fees, and these regulations provide for that, BLM has found that some applicants prefer to pay actual processing and monitoring costs to assist us in processing their applications in a more timely manner. This rule is consistent with previous section 2808.3-1(f) and section 307(c) of FLPMA (43 U.S.C. 1737(c)). Section 307(c) allows the Secretary of the Interior to ``accept contributions or donations of money, services, and property, real, personal, or mixed, for the management, protection, development, acquisition and conveying of the public lands * * *.''

BLM has not increased processing fees since publication of its final rule in July 1987. Since January 1986, the Consumer Price Index for All Urban Consumers (CPI-U) has risen by an average annual rate of about 3.83 percent or a total of about 73 percent. The Implicit Price Deflator, Gross Domestic Product (IPD-GDP), has risen by an average annual rate of about 2.88 percent or a total of about 55 percent.

A 1995 audit of BLM's cost recovery efforts by the OIG found BLM was not recovering all the costs of processing applications and recommended that BLM revise its regulations to recover all applicable costs and to provide for adjusting processing costs on an annual basis to reflect changes in economic conditions. The audit estimated that BLM incurred about $640,000 in additional expense in excess of the fees collected in 1993. (This shortfall comes to $213 per application, or $800,000 and $336 respectively when adjusted for changes in the IPD- GDP.) Since section 504(g) of FLPMA requires that BLM set these costs by regulation and the current regulations contain fixed charges, BLM must revise the regulations to revise the processing fees. The final rule will establish a mechanism to adjust the processing fees on an annual basis to reflect changes in economic conditions.

The preamble to the proposed rule at 64 FR 32107 states that BLM conducted field studies in 1982 and 1983 which measured the costs of processing right-of-way applications and monitoring grants. Between November 12, 1982, and July 25, 1986, BLM field offices kept and reported actual time and cost on some 500 right-of-way projects in non- major categories (see 51 FR 26840 (July 25, 1986)). In 1986, the agency conducted an extensive field study of processing and monitoring costs, which generally verified the processing costs developed from the earlier studies (see 64 FR 32108).

When we set the MLA processing fees in 1985 (50 FR 1308, Jan. 10, 1985) and in the proposed rule, we set fixed MLA processing and monitoring fees at our estimated actual cost, as required by section 28 of the MLA. The preamble to the rule proposing MLA cost recovery fees in 1983 makes plain that the fees were developed by a BLM task force consisting of employees with expertise in the processing and monitoring of right-of-way cases, budgeting, and cost accounting. The task force analyzed data from a representative sample of actual right-of-way cases and examined several demographic variables which might influence cost, including location and area of the right-of-way or temporary use area. Fees were based on the estimated work effort required to accomplish the processing actions, including personnel costs, fringe benefits, vehicle usage, and indirect costs (see 48 FR 48478, 48479 (Oct. 19, 1983) and 64 FR 32108 (June 15, 1999)).

In 1995, BLM program experts analyzed a cross section of our right- of-way cases. This analysis showed that the cost of processing right- of-way cases, including labor costs, had increased since 1986 at approximately the same rate as the IPD-GDP. Therefore, the final rule adjusts costs upward based on the IPD-GDP and allows for automatic adjustments based on this indicator. However, in the final rule we also made several other adjustments in the proposed rule fee schedule, in response to comments, which affect the final amounts and number of categories for both the processing and monitoring schedules.

The proposed rule requested public comment (see 64 FR 32108) on whether BLM should adopt a ``Minimum Impact'' category similar to the one proposed by the U.S. Forest Service. We received several comments suggesting BLM establish a minimum impact processing fee category or a category for any action which might take from 1 to 8 hours to process, such as most assignments and many renewals. We agree that some right- of-way actions can be accomplished in less than eight hours, but saw no benefit in referring to the category as the ``minimal impact category,'' or restricting the category to only work on assignment and/ or renewal applications. Therefore, in the final rule, BLM establishes a new processing and monitoring category (Category 1) for all right-of- way actions where we spend more than one hour, but less than or equal to eight hours, processing the application or monitoring the grant, but we did not use the ``minimal impact category'' title.

In the final rule we increased the number of processing categories to six from four, adding a Category 1 for processing routine applications that require greater than one hour and less than or equal to 8 hours to process, as just discussed, and another category for processing Master Agreements. Under the final rule no fee is assessed for any action that takes 1 hour or less to process. We then adjusted new Category 2 to include actions that are estimated to take a maximum of 24 hours but greater than eight hours. New Categories 3 (>24 hours 36 hours 24 hours 36 hours 1 8 24 36 50. amendments to existing grants.

(c) BLM will revise paragraph (b) of this section to update the processing fees for Categories 1 through 4 in the schedule each calendar year, based on the previous year's change in the IPD-GDP, as measured second quarter to second quarter. BLM will round these changes to the nearest dollar. BLM will update Category 5 processing fees as specified in the Master Agreement. You also may obtain a copy of the current schedule from any BLM state or field office or by writing: Director, BLM, 1849 C St., NW., Mail Stop 1000LS, Washington, DC 20240. BLM also posts the current schedule on the BLM Homepage on the Internet at http://www.blm.gov.

(d) After an initial review of your application, BLM will notify you of the processing category into which your application fits. You must then submit the appropriate payment for that category before BLM begins processing your application. Your signature on a cost recovery Master Agreement constitutes your agreement with the processing category decision. If you disagree with the category that BLM has determined for your application, you may appeal the decision under Sec. 2801.10 of this part. For Processing Categories 5 and 6 applications, see Sec. Sec. 2804.17, 2804.18, and 2804.19 of this subpart. If you paid the processing fee and you appeal a Processing Category 1 through 4 or a Processing Category 6 determination, BLM will process your application while the appeal is pending. If IBLA finds in your favor, you will receive a refund or adjustment of your processing fee.

(e) In processing your application, BLM may determine at any time that the application requires preparing an EIS. If this occurs, BLM will send you a decision changing your processing category to Processing Category 6. You may appeal this decision under Sec. 2801.10 of this part.

(f) To expedite processing of your application, you may notify BLM in writing that you are waiving paying reasonable costs and are electing to pay the full actual costs incurred by BLM in processing your application and monitoring your grant.

Sec. 2804.15 When does BLM reevaluate the processing and monitoring fees?

BLM reevaluates the processing and monitoring fees (see Sec. 2805.16 of this part) for each category and the categories themselves within 5 years after they go into effect and at 10-year intervals after that. When reevaluating processing and monitoring fees, BLM considers all factors that affect the fees, including, but not limited to, any changes in:

(a) Technology;

(b) The procedures for processing applications and monitoring grants;

(c) Statutes and regulations relating to the right-of-way program; or

(d) The IPD-GDP.

Sec. 2804.16 Who is exempt from paying processing and monitoring fees?

You are exempt from paying processing and monitoring fees if:

(a) You are a state or local government, or an agency of such a government, and BLM issues the grant for governmental purposes benefitting the general public. If your principal source of revenue results from charges you levy on customers for services similar to those of a profit-making corporation or business, you are not exempt; or

(b) Your application under this subpart is associated with a cost- share

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road or reciprocal right-of-way agreement.

Sec. 2804.17 What is a Master Agreement (Processing Category 5) and what information must I provide to BLM when I request one?

(a) A Master Agreement (Processing Category 5) is a written agreement covering processing and monitoring fees (see Sec. 2805.16 of this part) negotiated between BLM and you that involves multiple BLM grant approvals for projects within a defined geographic area.

(b) Your request for a Master Agreement must:

(1) Describe the geographic area covered by the Agreement and the scope of the activity you plan;

(2) Include a preliminary work plan. This plan must state what work you must do and what work BLM must do to process your application. Both parties must periodically update the work plan, as specified in the Agreement, and mutually agree to the changes;

(3) Contain a preliminary cost estimate and a timetable for processing the application and completing the projects;

(4) State whether you want the Agreement to apply to future applications in the same geographic area that are not part of the same projects; and

(5) Contain any other relevant information that BLM needs to process the application.

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

(a) A Master Agreement:

(1) Specifies that you must comply with all applicable laws and regulations;

(2) Describes the work you will do and the work BLM will do to process the application;

(3) Describes the method of periodic billing, payment, and auditing;

(4) Describes the processes, studies, or evaluations you will pay for;

(5) Explains how BLM will monitor the grant and how BLM will recover monitoring costs;

(6) Contains provisions allowing for periodic review and updating, if required;

(7) Contains specific conditions for terminating the Agreement; and

(8) Contains any other provisions BLM considers necessary.

(b) BLM will not enter into any Agreement that is not in the public interest.

(c) If you sign a Master Agreement, you waive your right to request a reduction of processing and monitoring fees.

Sec. 2804.19 How will BLM process my Processing Category 6 application?

(a) For Processing Category 6 applications, you and BLM must enter into a written agreement that describes how BLM will process your application. The final agreement consists of a work plan and a financial plan.

(b) In processing your application, BLM will:

(1) Determine the issues subject to analysis under NEPA;

(2) Prepare a preliminary work plan;

(3) Develop a preliminary financial plan, which estimates the reasonable costs of processing your application and monitoring your project;

(4) Discuss with you:

(i) The preliminary plans and data;

(ii) The availability of funds and personnel;

(iii) Your options for the timing of processing and monitoring fee payments; and

(iv) Financial information you must submit; and

(5) Complete final scoping and develop final work and financial plans which reflect any work you have agreed to do. BLM will also present you with the final estimate of the reasonable costs you must reimburse BLM, including the cost for monitoring the project, using the factors in Sec. Sec. 2804.20 and 2804.21 of this subpart.

(c) BLM retains the option to prepare any environmental documents related to your application. If BLM allows you to prepare any environmental documents and conduct any studies that BLM needs to process your application, you must do the work following BLM standards. For this purpose, you and BLM may enter into a written agreement. BLM will make the final determinations and conclusions arising from such work.

(d) BLM will periodically, as stated in the agreement, estimate processing costs for a specific work period and notify you of the amount due. You must pay the amount due before BLM will continue working on your application. If your payment exceeds the reasonable costs that BLM incurred for the work, BLM will either adjust the next billing to reflect the excess, or refund you the excess under 43 U.S.C. 1734. You may not deduct any amount from a payment without BLM's prior written approval.

Sec. 2804.20 How does BLM determine reasonable costs for Processing Category 6 or Monitoring Category 6 applications?

BLM will consider the factors in paragraph (a) of this section and Sec. 2804.21 of this subpart to determine reasonable costs. Submit to the BLM field office having jurisdiction over the lands covered by your application a written analysis of those factors applicable to your project, unless you agree in writing to waive consideration of reasonable costs and elect to pay full actual costs (see Sec. 2804.14(f) of this subpart). Submitting your analysis with the application will expedite its handling. BLM may require you to submit additional information in support of your position. While we consider your written analysis, BLM will not process your Category 6 application.

(a) FLPMA factors. If your application is for a Processing Category 6, or a Monitoring Category 6 project, the BLM State Director having jurisdiction over the lands you are applying to use will apply the following factors set forth at section 304(b) of FLPMA, 43 U.S.C. 1734(b), to determine the amount you owe. With your application, submit your analysis of how each of the following factors applies to your application:

(1) Actual costs to BLM (exclusive of management overhead costs) of processing your application and of monitoring construction, operation, maintenance, and termination of a facility authorized by the right-of- way grant;

(2) Monetary value of the rights or privileges you seek;

(3) BLM's ability to process an application with maximum efficiency and minimum expense, waste, and effort;

(4) Costs incurred for the benefit of the general public interest rather than for the exclusive benefit of the applicant. That is, the costs for studies and data collection that have value to the Federal Government or the general public apart from processing the application;

(5) Any tangible improvements, such as roads, trails, and recreation facilities, which provide significant public service and are expected in connection with constructing and operating the project; and

(6) Other factors relevant to the reasonableness of the costs (see Sec. 2804.21 of this subpart).

(b) Fee determination. After considering your analysis and other information, BLM will notify you in writing of what you owe. If you disagree with BLM's determination, you may appeal it under Sec. 2801.10 of this part.

Sec. 2804.21 What other factors will BLM consider in determining processing and monitoring fees?

(a) Other factors. If you include this information in your application, in arriving at your processing or

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monitoring fee in any category, the BLM State Director will consider whether:

(1) Payment of actual costs would:

(i) Result in undue financial hardship to your small business, and you would receive little monetary value from your grant as compared to the costs of processing and monitoring; or

(ii) Create such undue financial hardship as to prevent your use and enjoyment of your right-of-way for a non-commercial purpose.

(2) The costs of processing the application and monitoring the issued grant grossly exceed the costs of constructing the project;

(3) You are a non-profit organization, corporation, or association which is not controlled by or a subsidiary of a profit-making enterprise; and

(i) The studies undertaken in connection with processing the application or monitoring the grant have a public benefit; or

(ii) The facility or project will provide a benefit or special service to the general public or to a program of the Secretary;

(4) You need a grant to prevent or mitigate damages to any lands or property or to mitigate hazards or danger to public health and safety resulting from an act of God, an act of war, or negligence of the United States;

(5) You have a grant and need to secure a new or amended grant in order to relocate an authorized facility to comply with public health and safety and environmental protection laws, regulations, and standards which were not in effect at the time BLM issued your original grant;

(6) You have a grant and need to secure a new grant to relocate facilities which you have to move because a Federal agency or federally-funded project needs the lands and the United States does not pay the costs associated with your relocation; or

(7) For whatever other reason, such as public benefits or public services provided, collecting processing and monitoring fees would be inconsistent with prudent and appropriate management of public lands and with your equitable interests or the equitable interests of the United States.

(b) Fee determination. With your written application, submit your analysis of how each of the factors, as applicable, in paragraph (a) of this section pertain to your application. BLM will notify you in writing of the BLM State Director's fee determination. You may appeal this decision under Sec. 2801.10 of this part.

Sec. 2804.22 How will the availability of funds affect the timing of BLM's processing?

If BLM has insufficient funds to process your application, we will not process it until funds become available or you elect to pay full actual costs under Sec. 2804.14(f) of this part.

Sec. 2804.23 What if there are two or more competing applications for the same facility or system?

(a) If there are two or more competing applications for the same facility or system and your application is in:

(1) Processing Category 1 through 4. You must reimburse BLM for processing costs as if the other application or applications had not been filed.

(2) Processing Category 6. You are responsible for processing costs identified in your application. If BLM cannot readily separate costs, such as costs associated with preparing environmental analyses, you and any competing applicants must pay an equal share or a proportion agreed to in writing among all applicants and BLM. If you agree to share costs that are common to your application and that of a competing applicant, and the competitor does not pay the agreed upon amount, you are liable for the entire amount due. The applicants must pay the entire processing fee in advance. BLM will not process your application until we receive the advance payments.

(b) Who determines whether competition exists? BLM determines whether the applications are compatible in a single right-of-way system or are competing applications for the same system.

(c) If BLM determines that competition exists, BLM will describe the procedures for a competitive bid through a bid announcement in a newspaper of general circulation in the area affected by the potential right-of-way and by a notice in the Federal Register.

Sec. 2804.24 Do I always have to submit an application for a grant using Standard Form 299?

You do not have to file an application using Standard Form 299 if:

(a) BLM determines that competition exists (see Sec. 2804.23(c) of this subpart); or

(b) You are an oil and gas operator. You may include your right-of- way requirements for a FLPMA grant as part of your Application for Permit to Drill or Sundry Notice under the regulations in parts 3160 through 3190 of this chapter.

Sec. 2804.25 How will BLM process my application?

(a) BLM will notify you in writing when it receives your application and will identify your processing fee described at Sec. 2804.14 of this subpart.

(b) BLM may require you to submit additional information necessary to process the application. This information may include a detailed construction, operation, rehabilitation, and environmental protection plan, i.e., a ``Plan of Development,'' and any needed cultural resource surveys or inventories for threatened or endangered species. If BLM needs more information, we will identify this information in a written deficiency notice asking you to provide the additional information within a specified period of time. BLM will notify you of any other grant applications which involve all or part of the lands for which you applied.

(c) Customer service standard. BLM will process your completed application as follows:

Processing category Processing time

Conditions

1-4................. 60 calendar days...... If processing your application will take longer than 60 calendar days, BLM will notify you in writing of this fact prior to the 30th calendar day and inform you of when you can expect a final decision on your application. 5................... As specified in the BLM will process Master Agreement. applications as specified in the Agreement. 6................... Over 60 calendar days. BLM will notify you in writing within the initial 60-day processing period of the estimated processing time.

(d) Before issuing a grant, BLM will:

(1) Complete a NEPA analysis for the application or approve a NEPA analysis previously completed for the application, as required by 40 CFR parts 1500 through 1508;

(2) Determine whether or not your proposed use complies with applicable Federal and state laws;

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(3) If your application is for a road, determine whether it is in the public interest to require you to grant the United States an equivalent authorization across lands that you own;

(4) Consult, as necessary, with other governmental entities;

(5) Hold public meetings if sufficient public interest exists to warrant their time and expense. BLM will publish a notice in the Federal Register, a newspaper of general circulation in the vicinity of the lands involved, or both, announcing in advance any public hearings or meetings; and

(6) Take any other action necessary to fully evaluate and decide whether to approve or deny your application.

Sec. 2804.26 Under what circumstances may BLM deny my application?

(a) BLM may deny your application if:

(1) The proposed use is inconsistent with the purpose for which BLM manages the public lands described in your application;

(2) The proposed use would not be in the public interest;

(3) You are not qualified to hold a grant;

(4) Issuing the grant would be inconsistent with the Act, other laws, or these or other regulations;

(5) You do not have or cannot demonstrate the technical or financial capability to construct the project or operate facilities within the right-of-way; or

(6) You do not adequately comply with a deficiency notice (see Sec. 2804.25(b) of this subpart) or with any BLM requests for additional information needed to process the application.

(b) If BLM denies your application, you may appeal this decision under Sec. 2801.10 of this part.

Sec. 2804.27 What fees do I owe if BLM denies my application or if I withdraw my application?

If BLM denies your application or you withdraw it, you owe the processing fee set forth at Sec. 2804.14 of this subpart, unless you have a Processing Category 5 or 6 application. Then, the following conditions apply:

(a) If BLM denies your Processing Category 5 or 6 application, you are liable for all reasonable costs that the United States incurred in processing it. The money you have not paid is due within 30 calendar days after receiving a bill for the amount due.

(b) You may withdraw your application in writing before BLM issues a grant. If you do so, you are liable for all reasonable processing costs the United States has incurred up to the time you withdraw the application and for the reasonable costs of terminating your application. Any money you have not paid is due within 30 calendar days after receiving a bill for the amount due. Any money you paid that is not used to cover costs the United States incurred as a result of your application will be refunded to you.

Sec. 2804.28 What processing fees must I pay for a BLM grant application associated with Federal Energy Regulatory Commission (FERC) licenses or re-license applications under part I of the Federal Power Act (FPA)?

(a) You must reimburse BLM for the costs which the United States incurs in processing your grant application associated with a FERC project, other than those described at Sec. 2801.6(b)(7) of this part. BLM also requires reimbursement for processing a grant application associated with a FERC project licensed before October 24, 1992, that involves the use of additional public lands outside the original area reserved under section 24 of the FPA.

(b) BLM will determine the amount you must pay by using the processing fee categories described at Sec. 2804.14 of this subpart and bill you for the costs. FERC will address other costs associated with processing a FERC license or relicense (see 18 CFR chapter I).

Sec. 2804.29 What activities may I conduct on the lands covered by the proposed right-of-way while BLM is processing my application?

(a) You may conduct casual use activities on the BLM lands covered by the application, as may any other member of the public. BLM does not require a grant for casual use on BLM lands.

(b) For any activities on BLM lands that are not casual use, you must obtain prior BLM approval.

Subpart 2805--Terms and Conditions of Grants

Sec. 2805.10 How will I know whether BLM has approved or denied my application?

(a) BLM will send you a written response on your application. If we do not deny the application, we will send you an unsigned grant for your review and signature that:

(1) Includes any terms, conditions, and stipulations that BLM determines to be in the public interest. This includes modifying your proposed use or changing the route or location of the facilities;

(2) May include terms that prevent your use of the right-of-way until you have an approved Plan of Development and BLM has issued a Notice to Proceed; and

(3) Will impose a specific term for the grant. Each grant that BLM issues for 20 or more years will contain a provision requiring periodic review at the end of the twentieth year and subsequently at 10-year intervals. BLM may change the terms and conditions of the grant as a result of these reviews in accordance with Sec. 2805.15(e) of this subpart.

(b) If you agree with the terms and conditions of the unsigned grant, you should sign and return it to BLM with any payment required under Sec. 2805.16 of this subpart. BLM will sign the grant and return it to you with a final decision issuing the grant if the regulations in this part, including Sec. 2804.26, remain satisfied. You may appeal this decision under Sec. 2801.10 of this part.

(c) If BLM denies your application, we will send you a written decision that will:

(1) State the reasons for the denial (see Sec. 2804.26 of this part);

(2) Identify any processing costs you must pay (see Sec. 2804.14 of this part); and

(3) Notify you of your right to appeal this decision under Sec. 2801.10 of this part.

Sec. 2805.11 What does a grant contain?

The grant states what your rights are on the lands subject to the grant and contains information about:

(a) What lands you can use or occupy. The lands may or may not correspond to those for which you applied. BLM will limit the grant to those lands which BLM determines:

(1) You will occupy with authorized facilities;

(2) Are necessary for constructing, operating, maintaining, and terminating the authorized facilities;

(3) Are necessary to protect the public health and safety;

(4) Will not unnecessarily damage the environment; and

(5) Will not result in unnecessary or undue degradation.

(b) How long you can use the right-of-way. Each grant will state the length of time that you are authorized to use the right-of-way.

(1) BLM will consider the following factors in establishing a reasonable term:

(i) The public purpose served;

(ii) Cost and useful life of the facility;

(iii) Time limitations imposed by licenses or permits required by other Federal agencies and state, tribal, or local governments; and

(iv) The time necessary to accomplish the purpose of the grant.

(2) All grants, except those issued for a term of less than one year and those issued in perpetuity, expire on December 31 of the final year of the grant.

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(c) How you can use the right-of-way. You may only use the right- of-way for the specific use the grant authorizes.

Sec. 2805.12 What terms and conditions must I comply with?

By accepting a grant, you agree to comply with and be bound by the following terms and conditions. During construction, operation, maintenance, and termination of the project you must:

(a) To the extent practicable, comply with all existing and subsequently enacted, issued, or amended Federal laws and regulations and state laws and regulations applicable to the authorized use;

(b) Rebuild and repair roads, fences, and established trails destroyed or damaged by the project;

(c) Build and maintain suitable crossings for existing roads and significant trails that intersect the project;

(d) Do everything reasonable to prevent and suppress wildfires on or in the immediate vicinity of the right-of-way area;

(e) Not discriminate against any employee or applicant for employment during any phase of the project because of race, creed, color, sex, or national origin. You must also require subcontractors to not discriminate;

(f) Pay monitoring fees and rent described in Sec. 2805.16 of this subpart and subpart 2806 of this part;

(g) If BLM requires, obtain, and/or certify that you have obtained, a surety bond or other acceptable security to cover any losses, damages, or injury to human health, the environment, and property in connection with your use and occupancy of the right-of-way, including terminating the grant, and to secure all obligations imposed by the grant and applicable laws and regulations. If you plan to use hazardous materials in the operation of your grant, you must provide a bond that covers liability for damages or injuries resulting from releases or discharges of hazardous materials. BLM may require a bond, an increase or decrease in the value of an existing bond, or other acceptable security at any time during the term of the grant;

(h) Assume full liability if third parties are injured or damages occur to property on or near the right-of-way (see Sec. 2807.12 of this part);

(i) Comply with project-specific terms, conditions, and stipulations, including requirements to:

(1) Restore, revegetate, and curtail erosion or conduct any other rehabilitation measure BLM determines necessary;

(2) Ensure that activities in connection with the grant comply with air and water quality standards or related facility siting standards contained in applicable Federal or state law or regulations;

(3) Control or prevent damage to:

(i) Scenic, aesthetic, cultural, and environmental values, including fish and wildlife habitat;

(ii) Public and private property; and

(iii) Public health and safety;

(4) Protect the interests of individuals living in the general area who rely on the area for subsistence uses as that term is used in Title VIII of Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111 et seq.);

(5) Ensure that you construct, operate, maintain, and terminate the facilities on the lands in the right-of-way in a manner consistent with the grant;

(6) When the state standards are more stringent than Federal standards, comply with state standards for public health and safety, environmental protection, and siting, constructing, operating, and maintaining any facilities and improvements on the right-of-way; and

(7) Grant BLM an equivalent authorization for an access road across your land if BLM determines the reciprocal authorization is needed in the public interest and the authorization BLM issues to you is also for road access;

(j) Immediately notify all Federal, state, tribal, and local agencies of any release or discharge of hazardous material reportable to such entity under applicable law. You must also notify BLM at the same time, and send BLM a copy of any written notification you prepared;

(k) Not dispose of or store hazardous material on your right-of- way, except as provided by the terms, conditions, and stipulations of your grant;

(l) Certify your compliance with all requirements of the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. 11001 et seq., when you receive, assign, renew, amend, or terminate your grant;

(m) Control and remove any release or discharge of hazardous material on or near the right-of-way arising in connection with your use and occupancy of the right-of-way, whether or not the release or discharge is authorized under the grant. You must also remediate and restore lands and resources affected by the release or discharge to BLM's satisfaction and to the satisfaction of any other Federal, state, tribal, or local agency having jurisdiction over the land, resource, or hazardous material;

(n) Comply with all liability and indemnification provisions and stipulations in the grant;

(o) As BLM directs, provide diagrams or maps showing the location of any constructed facility; and

(p) Comply with all other stipulations that BLM may require.

Sec. 2805.13 When is a grant effective?

A grant is effective after both you and BLM sign it. You must accept its terms and conditions in writing and pay any necessary rent and monitoring fees as set forth in subpart 2806 of this part and Sec. 2805.16 of this subpart. Your written acceptance constitutes an agreement between you and BLM that your right to use the public lands, as specified in the grant, is subject to the terms and conditions of the grant and applicable laws and regulations.

Sec. 2805.14 What rights does a grant convey?

The grant conveys to you only those rights which it expressly contains. BLM issues it subject to the valid existing rights of others, including the United States. Rights which the grant conveys to you include the right to:

(a) Use the described lands to construct, operate, maintain, and terminate facilities within the right-of-way for authorized purposes under the terms and conditions of the grant;

(b) If your grant specifically authorizes, allow other parties to use your facility for the purposes specified in your grant and you may charge for such use. If your grant does not specifically authorize it, you may not let anyone else use your facility and you may not charge for its use unless BLM authorizes or requires it in writing;

(c) Allow others to use the land as your agent in the exercise of the rights that the grant specifies;

(d) Do minor trimming, pruning, and removing of vegetation to maintain the right-of-way or facility;

(e) Use common varieties of stone and soil which are necessarily removed during construction of the project, without additional BLM authorization or payment, in constructing the project within the authorized right-of-way; and

(f) Assign the grant to another, provided that you obtain BLM's prior written approval.

Sec. 2805.15 What rights does the United States retain?

The United States retains and may exercise any rights the grant does not expressly convey to you. These include BLM's right to:

(a) Access the lands covered by the grant at any time and enter any facility

[[Continued on page 21069]]

From the Federal Register Online via GPO Access [wais.access.gpo.gov] ]

[[pp. 21069-21091]] Rights-of-Way, Principles and Procedures; Rights-of-Way Under the Federal Land Policy and Management Act and the Mineral Leasing Act

[[Continued from page 21068]]

[[Page 21069]]

you construct on the right-of-way. BLM will give you reasonable notice before it enters any facility on the right-of-way;

(b) Require common use of your right-of-way, including subsurface and air space, and authorize use of the right-of-way for compatible uses. You may not charge for the use of the lands made subject to such additional right-of-way grants;

(c) Retain ownership of the resources of the land, including timber and vegetative or mineral materials and any other living or non-living resources. You have no right to use these resources, except as noted in Sec. 2805.14(e) of this subpart;

(d) Determine whether or not your grant is renewable; and

(e) Change the terms and conditions of your grant as a result of changes in legislation, regulation, or as otherwise necessary to protect public health or safety or the environment.

Sec. 2805.16 If I hold a grant, what monitoring fees must I pay?

(a) Monitoring fees. You must pay a fee to BLM for the reasonable costs the Federal government incurs in monitoring the construction, operation, maintenance, and termination of the project and protection and rehabilitation of the public lands your grant covers. BLM categorizes the monitoring fees based on the estimated number of work hours necessary to monitor your grant. Monitoring Category 1 through 4 fees are one-time fees and are not refundable. The work hours and fees for 2005 are as follows:

2005 Monitoring Fee Schedule

Monitoring fee as of June 21, 2005. To be Federal work hours adjusted annually for changes in the IPD-GDP. Monitoring category

involved

See paragraph (b) of this section for update information

(1) Applications for new grants, Estimated Federal work $97. assignments, renewals, and

hours are > 1 8 24 36 50. amendments to existing grants.

(b) Updating the schedule. BLM will revise paragraph (a) of this section annually to update Category 1 through 4 monitoring fees in the manner described at Sec. 2804.14(c) of this part. BLM will update Category 5 monitoring fees as specified in the Master Agreement. The monitoring cost schedule is available from any BLM state or field office or by writing: Director, Bureau of Land Management, 1849 C St., NW., Mail Stop 1000LS, Washington, DC 20240. BLM also posts the current schedule on the BLM Homepage on the Internet at http://www.blm.gov.

Sec. 2805.17 When do I pay monitoring fees?

(a) Monitoring Categories 1 through 4. Unless BLM otherwise directs, you must pay monitoring fees when you submit to BLM your written acceptance of the terms and conditions of the grant.

(b) Monitoring Category 5. You must pay monitoring fees as specified in the Master Agreement. BLM will not issue your grant until it receives the required payment.

(c) Monitoring Category 6. BLM may periodically estimate the costs of monitoring your use of the grant. BLM will include this fee in the costs associated with processing fees described at Sec. 2804.14 of this part. If BLM has underestimated the monitoring costs, we will notify you of the shortfall. If your payments exceed the reasonable costs that Federal employees incurred for monitoring, BLM will either reimburse you the difference, or adjust the next billing to reflect the overpayment. Unless BLM gives you written authorization, you may not offset or deduct the overpayment from your payments.

(d) Monitoring Categories 1-4 and 6. If you disagree with the category BLM has determined for your grant, you may appeal the decision under Sec. 2801.10 of this part.

Subpart 2806--Rents

General Provisions

Sec. 2806.10 What rent must I pay for my grant?

(a) You must pay in advance a rent BLM establishes based on sound business management principles and, as far as practical and feasible, using comparable commercial practices. Rent does not include processing or monitoring fees and rent is not offset by such fees. BLM may exempt, waive, or reduce rent for a grant under Sec. Sec. 2806.14 and 2806.15 of this subpart.

(b) If BLM issued your grant on or before October 21, 1976, under then existing statutory authority, upon request, BLM will conduct an informal hearing before a proposed rent increase becomes effective. This applies to rent increases due to a BLM-initiated change in the rent or from initially being put on a rent schedule. You are not entitled to a hearing on annual adjustments once you are on a rent schedule.

Sec. 2806.11 How will BLM charge me rent?

(a) BLM will charge rent beginning on the first day of the month following the effective date of the grant through the last day of the month when the grant terminates. Example: If a grant became effective on January 10 and terminated on September 16, the rental period would be February 1 through September 30, or 8 months.

(b) BLM will set or adjust the annual billing periods to coincide with the calendar year by prorating the rent based on 12 months.

(c) If you disagree with the rent that BLM charges, you may appeal the decision under Sec. 2801.10 of this part.

Sec. 2806.12 When do I pay rent?

(a) You must pay rent for the initial rental period before BLM issues you a grant.

(b) You make all other rental payments for linear rights-of-way

[[Page 21070]]

according to the payment plan described in Sec. 2806.23 of this subpart.

(c) After the first rental payment, all rent is due on January 1 of the first year of each succeeding rental period for the term of your grant.

Sec. 2806.13 What happens if I pay the rent late?

(a) If BLM does not receive the rent payment within 15 calendar days after the rent was due under Sec. 2806.12 of this subpart, BLM will charge you a late payment fee of $25.00 or 10 percent of the rent you owe, whichever is greater, not to exceed $500 per authorization.

(b) If BLM does not receive your rent payment and late payment fee within 30 calendar days after rent was due, BLM may collect other administrative fees provided by statute.

(c) If BLM does not receive your rent, late payment fee, and any administrative fees within 90 calendar days after the rent was due, BLM may terminate your grant under Sec. 2807.17 of this part and you may not remove any facility or equipment without BLM's written permission (see Sec. 2807.19 of this part). The rent due, late payment fees, and any administrative fees remain a debt that you owe to the United States.

(d) If you pay the rent, late payment fee, and any administrative fees after BLM has terminated the grant, BLM does not automatically reinstate the grant. You must file a new application with BLM. BLM will consider the history of your failure to timely pay rent in deciding whether to issue you a new grant.

(e) You may appeal any adverse decision BLM takes against your grant under Sec. 2801.10 of this part.

Sec. 2806.14 Under what circumstances am I exempt from paying rent?

You do not have to pay rent for your use if:

(a) BLM issues the grant under a statute which does not allow BLM to charge rent;

(b) You are a Federal, state, or local government or its agent or instrumentality, unless you are:

(1) Using the facility, system, space, or any part of the right-of- way area for commercial purposes; or

(2) A municipal utility or cooperative whose principal source of revenue is customer charges;

(c) You have been granted an exemption under a statute providing for such; or

(d) Electric or telephone facilities constructed on the right-of- way were financed in whole or in part, or eligible for financing, under the Rural Electrification Act of 1936, as amended (REA) (7 U.S.C. 901 et seq.), or are extensions of such facilities. You do not need to have sought financing from the Rural Utilities Service to qualify for this exemption. BLM may require you to document the facility's eligibility for REA financing. For communication site facilities, adding or including non-eligible facilities as, for example, by tenants or customers, on the right-of-way will subject the holder to rent in accordance with Sec. Sec. 2806.30 through 2806.44 of this subpart.

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

(a) BLM may waive or reduce your rent payment, even to zero in appropriate circumstances. BLM may require you to submit information to support a finding that your grant qualifies for a waiver or a reduction of rent.

(b) BLM may waive or reduce your rent if you show BLM that:

(1) You are a non-profit organization, corporation, or association which is not controlled by, or is not a subsidiary of, a profit making corporation or business enterprise and the facility or project will provide a benefit or special service to the general public or to a program of the Secretary;

(2) You provide without charge, or at reduced rates, a valuable benefit to the public at large or to the programs of the Secretary of the Interior;

(3) You hold a valid Federal authorization in connection with your grant and the United States is already receiving compensation for this authorization. This paragraph does not apply to oil and gas leases issued under part 3100 of this chapter; or

(4) Your grant involves a cost share road or a reciprocal right-of- way agreement not subject to subpart 2812 of this chapter. In these cases, BLM will determine the rent based on the proportion of use.

(c) The BLM State Director may waive or reduce your rent payment if the BLM State Director determines that paying the full rent will cause you undue hardship and it is in the public interest to waive or reduce your rent. In your request for a waiver or rental reduction you must include a suggested alternative rental payment plan or timeframe within which you anticipate resuming full rental payments. BLM may also require you to submit specific financial and technical data or other information that corrects or modifies the statement of financial capability required by Sec. 2804.12(a)(5) of this part.

Sec. 2806.16 When must I make estimated rent payments to BLM?

To expedite the processing of your grant application, BLM may estimate rent payments and collect that amount before it issues the grant. The amount may change once BLM determines the actual rent of the right-of-way. BLM will credit any rental overpayment, and you are liable for any underpayment. This section does not apply to rent payments made under a rent schedule in this part.

Linear Rights-of-Way

Sec. 2806.20 What is the rent for a linear right-of-way?

(a) Except as noted in paragraph (c) of this section, BLM will use the Per Acre Rent Schedule found at paragraph (b) of this section to calculate rent for linear rights-of-way. The Per Acre Rent Schedule is updated annually in accordance with Sec. 2806.21 of this subpart.

(b) The Per Acre Rent Schedule for calendar year 2005 is as follows:

2005 Per Acre Rent Schedule

Per acre rent for Per acre rent for oil electric transmission and gas and other and distributionlines, energy related telephone lines, non- pipeline, and all related pipelines, and County zone number and per acre zone price

roads, ditches, and other linear rights-of- canals. To be adjusted way. To be adjusted annually for changes in annually for changes in the IPD-GDP. See Sec. the IPD-GDP. See Sec. 2806.21 for update 2806.21 for update information

information

Zone 1 $50....................................................

$3.89

$3.40 Zone 2 $100...................................................

7.76

6.79 Zone 3 $200...................................................

15.58

13.61

[[Page 21071]]

Zone 4 $300...................................................

23.31

20.43 Zone 5 $400...................................................

31.14

27.23 Zone 6 $500...................................................

38.89

34.03 Zone 7 $600...................................................

46.66

40.86 Zone 8 $1,000.................................................

77.78

68.05

(c) BLM may use an alternate means to compute your rent if the rent determined by comparable commercial practices or an appraisal would be 10 or more times the rent from the schedule.

(d) Once you are on a rent schedule, BLM will not remove you from it unless:

(1) The BLM State Director decides to remove you from the schedule under paragraph (c) of this section; or

(2) You file an application to amend your grant.

(e) You may obtain the current linear right-of-way rent schedule from any BLM state or field office or by writing: Director, BLM, 1849 C St., NW., Mail Stop 1000 LS, Washington, DC 20240. BLM also posts the most current rent schedule on the BLM Homepage on the Internet at http://www.blm.gov.

Sec. 2806.21 When and how does the linear rent schedule change?

BLM will revise Sec. 2806.20(b) to update the rent schedule each calendar year based on the previous year's change in the IPD-GDP, as measured second quarter to second quarter.

Sec. 2806.22 How will BLM calculate my rent for linear rights-of-way the schedule covers?

(a) BLM calculates your rent by multiplying the rent per acre for the appropriate category of use and county zone price from the current schedule by the number of acres in the right-of-way area that fall in those categories and multiplying the result by the number of years in the rental period.

(b) If BLM has not previously used the rent schedule to calculate your rent, we may do so after giving you reasonable written notice.

Sec. 2806.23 How must I make rental payments for a linear grant?

(a) For linear grants, except those issued in perpetuity, you must make either nonrefundable annual payments or a nonrefundable payment for more than 1 year, as follows:

(1) One-time payments. You may pay in advance the required rent amount for the entire term of the grant.

(2) If you choose not to make a one-time payment, you must pay according to one of the following methods, as applicable:

(i) Payments by individuals. If your annual rent is $100 or less, you must pay at 10-year intervals not to exceed the term of the grant. If your annual rent is greater than $100, you may pay annually or at multi-year intervals that you may choose.

(ii) Payments by all others. You must pay rent at 10-year intervals not to exceed the term of the grant.

(b) BLM considers the first partial calendar year in the rent payment period to be the first year of the rental payment term. BLM prorates the first year rental amount based on the number of months left in the calendar year after the effective date of the grant.

(c) Perpetual grants. For linear grants issued in perpetuity, you must make a one-time rental payment before BLM will issue the grant, except individuals may choose to make rental payments as provided in paragraph (a)(2)(i) of this section. BLM determines the one-time payment as follows:

(1) BLM will calculate rent for grants issued in perpetuity by multiplying the annual rent by 100; or

(2) You may request from BLM a rent determination based on the prevailing price established by general practice in the vicinity of the right-of-way. You must:

(i) Prepare a report, at your expense, that explains how you estimated the rent;

(ii) Complete it to Federal appraisal standards; and

(iii) Submit it for consideration and approval by the BLM State Director with jurisdiction over the lands in the grant. If the BLM State Director does not approve the rent estimated in your report, you may appeal the decision under Sec. 2801.10 of this part.

Communication Site Rights-of-Way

Sec. 2806.30 What are the rents for communication site rights-of-way?

(a) Rent schedule. (1) BLM uses the rent schedule for communication uses found in paragraph (b) of this section to calculate the rent for communication site rights-of-way. The schedule is based on nine population strata (the population served), as depicted in the most recent version of the Ranally Metro Area Population Ranking, and the type of communication use or uses for which BLM normally grants communication site rights-of-way. These uses are listed as part of the definition of ``communication use rent schedule,'' set out at Sec. 2801.5(b) of this part. You may obtain a copy of the current schedule from any BLM state or field office or by writing: Director, BLM, 1849 C St., NW., Mail Stop 1000 LS, Washington, DC 20240. BLM also posts the current communication use rent schedule on the BLM Home Page on the Internet at http://www.blm.gov.

(2) BLM will revise paragraph (b) of this section annually to update the schedule based on two sources: the U.S. Department of Labor Consumer Price Index for All Urban Consumers, U.S. City Average (CPI- U), as of July of each year (difference in CPI-U from July of one year to July of the following year), and the RMA population rankings.

(3) BLM will limit the annual adjustment based on the Consumer Price Index to no more than 5 percent. At least every 10 years BLM will review the rent schedule to ensure that the schedule reflects fair market value.

(b) The annual rent schedule for communication uses for calendar year 2005 is as follows:

[[Page 21072]]

Communication Use Rent Schedule Annual Fees [Calendar year 2005]

Private Television Am/FM radio Cable Broadcast CMRS/ Cellular mobile

Other Population

broadcast broadcast 1 television translator/ facility telephone radio Microwave communication LPTV/LPFM manager

service

uses

5,000,000 plus................... $55,861.13 $42,206.21

(2)

(2) $14,896.30 $14,896.30 $12,413.59 $12,413.59

$93.10 2,500,000 to 4,999,999........... 37,240.76 26,068.54

(2)

(2) 12,413.59 12,413.59 7,448.15 9,930.88

93.10 1,000,000 to 2,499,999........... 22,344.46 17,379.01

(2)

(2) 9,930.88 9,930.88 7,448.15 8,689.51

93.10 500,000 to 999,999............... 17,379.01 12,413.59

(2)

(2) 6,206.79 7,448.15 4,965.43 6,827.47

93.10 300,000 to 499,999............... 14,896.30 9,930.88

(2)

(2) 4,965.43 6,206.79 3,103.39 3,103.39

93.10 100,000 to 299,999............... 7,448.15 4,965.43 2,979.25 2,979.25 3,724.08 4,965.43 2,482.72 2,482.72

93.10 50,000 to 99,999................. 3,724.08 2,482.72 1,489.63 1,489.63 1,489.63 3,724.08 1,241.36 1,862.03

93.10 25,000 to 49,999................. 1,862.03 1,489.63 1,241.36 620.68 1,241.36 3,103.39 744.81 1,862.03

93.10 Less Than 25,000................. 1,489.63 1,117.22 744.81 124.14 744.81 3,103.39 434.47 1,862.03

93.10

1 Rent for AM Radio is 70% of the FM Scheduled Rent. 2 Fee to be determined by appraisal or other methods.

[[Page 21073]]

(c) Uses not covered by the schedule. The communication use rent schedule does not apply to:

(1) Communication site uses, facilities, and devices located entirely within the exterior boundaries of an oil and gas lease, and directly supporting the operations of the oil and gas lease (see parts 3160 through 3190 of this chapter);

(2) Communication facilities and uses ancillary to and authorized under a linear grant, such as a railroad grant or an oil and gas pipeline grant;

(3) Communication uses not listed on the schedule, such as telephone lines, fiber optic cables, and new technologies;

(4) Grants for which BLM determines the rent by competitive bidding; or

(5) Communication facilities and uses for which the BLM State Director concurs that:

(i) The expected annual rent, as BLM estimates from market data, exceeds the rent from the rent schedule by five times; or

(ii) The communication site serves a population of one million or more and the expected annual rent for the communication use or uses is more than $10,000 above the rent from the rent schedule.

Sec. 2806.31 How will BLM calculate rent for a right-of-way for communication uses in the schedule?

(a) Basic rule. BLM calculates rents for:

(1) Single-use facilities by applying the rent from the communication use rent schedule (see Sec. 2806.30 of this subpart) for the type of use and the population strata served; and

(2) Multiple-use facilities, whose authorizations provide for subleasing, by setting the rent of the highest value use in the facility or facilities as the base rent (taken from the rent schedule) and adding to it 25 percent of the rent from the rent schedule for all tenant uses in the facility or facilities, if a tenant use is not used as the base rent (rent = base rent + 25 percent of all rent due to additional tenant uses in the facility or facilities) (see also Sec. Sec. 2806.32 and 2806.34 of this subpart).

(b) Exclusions. When calculating rent, BLM will exclude customer uses, except as provided for at Sec. Sec. 2806.34(b)(4) and 2806.42 of this subpart. BLM will also exclude those uses exempted from rent by Sec. 2806.14 of this subpart, and any uses whose rent has been waived or reduced to zero as described in Sec. 2806.15 of this subpart.

(c) Annual statement. By October 15 of each year, you, as a grant or lease holder, must submit to BLM a certified statement listing any tenants and customers in your facility or facilities and the category of use for each tenant or customer as of September 30 of the same year. BLM may require you to submit any additional information needed to calculate your rent. BLM will determine the rent based on the certified statement provided. We require only facility owners or facility managers to hold a grant or lease (unless you are an occupant in a federally-owned facility as described in Sec. 2806.42 of this subpart), and will charge you rent for your grant or lease based on the total number of communication uses within the right-of-way and the type of uses and population strata the facility or site serves.

Sec. 2806.32 How does BLM determine the population strata served?

(a) BLM determines the population strata served as follows:

(1) If the site or facility is within a designated RMA, BLM will use the population strata of the RMA;

(2) If the site or facility is within a designated RMA, and it serves two or more RMAs, BLM will use the population strata of the RMA having the greatest population;

(3) If the site or facility is outside an RMA, and it serves one or more RMAs, BLM will use the population strata of the RMA served having the greatest population;

(4) If the site or facility is outside an RMA and the site does not serve an RMA, BLM will use the population strata of the community it serves having the greatest population, as identified in the current edition of the Rand McNally Road Atlas;

(5) If the site or facility is outside an RMA, and it serves a community of less than 25,000, BLM will use the lowest population strata shown on the rent schedule.

(b)(1) BLM considers all facilities (and all uses within the same facility) located at one site to serve the same RMA or community. However, BLM may make case-by-case exceptions in determining the population served at a particular site by uses not located within the same facility and not authorized under the same grant or lease. BLM has the sole responsibility to make this determination. For example, when a site has a mix of high-power and low-power uses that are authorized by separate grants or leases, and only the high-power uses are capable of serving an RMA or community with the greatest population, BLM may separately determine the population strata served by the low-power uses (if not collocated in the same facility with the high-power uses), and calculate their rent as described in Sec. 2806.30 of this subpart.

(2) For purposes of rent calculation, all uses within the same facility and/or authorized under the same grant or lease must serve the same population strata.

(3) For purposes of rent calculation, BLM will not modify the population rankings published in the Rand McNally Commercial Atlas and Marketing Guide or the population of the community served.

Sec. 2806.33 How will BLM calculate the rent for a grant or lease authorizing a single use communication facility?

BLM calculates the rent for a grant or lease authorizing a single- use communication facility from the communication use rent schedule (see Sec. 2806.30 of this subpart), based on your authorized single use and the population strata it serves (see Sec. 2806.32 of this subpart).

Sec. 2806.34 How will BLM calculate the rent for a grant or lease authorizing a multiple-use communication facility?

(a) Basic rule. BLM first determines the population strata the communication facility serves according to Sec. 2806.32 of this subpart and then calculates the rent assessed to facility owners and facility managers for a grant or lease for a communication facility that authorizes subleasing with tenants, customers, or both, as follows:

(1) Using the communication use rent schedule. BLM will determine the rent of the highest value use in the facility or facilities as the base rent, and add to it 25 percent of the rent from the rent schedule (see Sec. 2806.30 of this subpart) for each tenant use in the facility or facilities;

(2) If the highest value use is not the use of the facility owner or facility manager, BLM will consider the owner's or manager's use like any tenant or customer use in calculating the rent (see Sec. 2806.35(b) for facility owners and Sec. 2806.39(a) for facility managers);

(3) If a tenant use is the highest value use, BLM will exclude the rent for that tenant's use when calculating the additional 25 percent amount under paragraph (a)(1) of this section for tenant uses;

(4) If a holder has multiple uses authorized under the same grant or lease, such as a TV and a FM radio station, BLM will calculate the rent as in paragraph (a)(1) of this section. In this case, the TV rent would be the highest value use and BLM would charge the FM portion according to the rent schedule as if it were a tenant use.

(b) Special applications. The following provisions apply when

[[Page 21074]]

calculating rents for communication uses exempted from rent under Sec. 2806.14 of this subpart or communication uses whose rent has been waived or reduced to zero under Sec. 2806.15 of this subpart:

(1) BLM will exclude exempted uses or uses whose rent has been waived or reduced to zero (see Sec. Sec. 2806.14 and 2806.15 of this subpart) of either a facility owner or a facility manager in calculating rents. BLM will exclude similar uses (see Sec. Sec. 2806.14 and 2806.15 of this subpart) of a customer or tenant if they choose to hold their own grant or lease (see Sec. 2806.36 of this subpart) or are occupants in a Federal facility (see Sec. 2806.42(a) of this subpart);

(2) BLM will charge rent to a facility owner whose own use is either exempted from rent or whose rent has been waived or reduced to zero (see Sec. Sec. 2806.14 and 2806.15 of this subpart), but who has tenants in the facility, in an amount equal to the rent of the highest value tenant use plus 25 percent of the rent from the rent schedule for each of the remaining tenant uses subject to rent;

(3) BLM will not charge rent to a facility owner, facility manager, or tenant (when holding a grant or lease) when all of the following occur:

(i) BLM exempts from rent, waives, or reduces to zero the rent for the holder's use (see Sec. Sec. 2806.14 and 2806.15 of this subpart);

(ii) Rent from all other uses in the facility is exempted, waived, or reduced to zero, or BLM considers such uses as customer uses; and

(iii) The holder is not operating the facility for commercial purposes (see Sec. 2801.5(b) of this part) with respect to such other uses in the facility; and

(4) If a holder, whose own use is exempted from rent or whose rent has been waived or reduced to zero, is conducting a commercial activity with customers or tenants whose uses are also exempted from rent or whose rent has been waived or reduced to zero (see Sec. Sec. 2806.14 and 2806.15 of this subpart), BLM will charge rent, notwithstanding section 2806.31(b), based on the highest value use within the facility. This paragraph does not apply to facilities exempt from rent under Sec. 2806.14(d) of this subpart except when the facility also includes non-eligible facilities.

Sec. 2806.35 How will BLM calculate rent for private mobile radio service (PMRS), internal microwave, and ``other'' category uses?

If an entity engaged in a PMRS, internal microwave, or ``other'' use is:

(a) Using space in a facility owned by either a facility owner or facility manager, BLM will consider the entity to be a customer and not include these uses in the rent calculation for the facility; or

(b) The facility owner, BLM will follow the provisions in Sec. 2806.31 of this subpart to calculate rent for a lease involving these uses. However, we include the rent from the rent schedule for a PMRS, internal microwave, or other use in the rental calculation only if the value of that use is equal to or greater than the value of any other use in the facility. BLM excludes these uses in the 25 percent calculation (see Sec. 2806.31(a) of this subpart) when their value does not exceed the highest value in the facility.

Sec. 2806.36 If I am a tenant or customer in a facility, must I have my own grant or lease and if so, how will this affect my rent?

(a) You may have your own authorization, but BLM does not require a separate grant or lease for tenants and customers using a facility authorized by a BLM grant or lease that contains a subleasing provision. BLM charges the facility owner or facility manager rent based on the highest value use within the facility (including any tenant or customer use authorized by a separate grant or lease) and 25 percent of the rent from the rent schedule for each of the other uses subject to rent (including any tenant or customer use a separate grant or lease authorizes and the facility owner's use if it is not the highest value use).

(b) If you own a building, equipment shelter, or tower on public lands for communication purposes, you must have an authorization under this part, even if you are also a tenant or customer in someone else's facility.

(c) BLM will charge tenants and customers who hold their own grant or lease in a facility, as grant or lease holders, the full annual rent for their use based on the BLM communication use rent schedule. BLM will also include such tenant or customer use in calculating the rent the facility owner or facility manager must pay.

Sec. 2806.37 How will BLM calculate rent for a grant or lease involving an entity with a single use (holder or tenant) having equipment or occupying space in multiple BLM-authorized facilities to support that single use?

BLM will include the single use in calculating rent for each grant or lease authorizing that use. For example, a television station locates its antenna on a tower authorized by grant or lease ``A'' and locates its related broadcast equipment in a building authorized by grant or lease ``B.'' The statement listing tenants and customers for each facility (see Sec. 2806.31(c) of this subpart) must include the television use because each facility is benefitting economically from having the television broadcast equipment located there, even though the combined equipment is supporting only one single end use.

Sec. 2806.38 Can I combine multiple grants or leases for facilities located on one site into a single grant or lease?

If you hold authorizations for two or more facilities on the same site, you can combine all those uses under one grant or lease, with BLM's approval. The highest value use in all the combined facilities determines the base rent. BLM then charges for each remaining use in the combined facilities at 25 percent of the rent from the rent schedule. These uses include those uses we previously calculated as base rents when BLM authorized each of the facilities on an individual basis.

Sec. 2806.39 How will BLM calculate rent for a lease for a facility manager's use?

(a) BLM will follow the provisions in Sec. 2806.31 of this subpart to calculate rent for a lease involving a facility manager's use. However, we include the rent from the rent schedule for a facility manager's use in the rental calculation only if the value of that use is equal to or greater than the value of any other use in the facility. BLM excludes the facility manager's use in the 25 percent calculation (see Sec. 2806.31(a) of this subpart) when its value does not exceed the highest value in the facility.

(b) If you are a facility owner and you terminate your use within the facility, but want to retain the lease for other purposes, BLM will continue to charge you for your authorized use until BLM amends the lease to change your use to facility manager or to some other communication use.

Sec. 2806.40 How will BLM calculate rent for a grant or lease for ancillary communication uses associated with communication uses on the rent schedule?

If the ancillary communication equipment is used solely in direct support of the primary use (see the definition of communication use rent schedule in Sec. 2801.5 of this part), BLM will calculate and charge rent only for the primary use.

Sec. 2806.41 How will BLM calculate rent for communication facilities ancillary to a linear grant or other use authorization?

When a communication facility is ancillary to, and authorized by BLM under, a grant for a linear use, or some other type of use authorization (e.g., a mineral lease or sundry notice), BLM will determine the rent using the linear

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rent schedule (see Sec. 2806.20 of this subpart) or rent scheme associated with the other authorization, and not the communication use rent schedule.

Sec. 2806.42 How will BLM calculate rent for a grant or lease authorizing a communication use within a federally-owned communication facility?

(a) If you are an occupant of a federally-owned communication facility, you must have your own grant or lease and pay rent in accordance with these regulations.

(b) If a Federal agency holds a grant or lease and agrees to operate the facility as a facility owner under Sec. 2806.31 of this subpart, occupants do not need a separate BLM grant or lease and BLM will calculate and charge rent to the Federal facility owner under Sec. Sec. 2806.30 through 2806.44 of this subpart.

Sec. 2806.43 How does BLM calculate rent for passive reflectors and local exchange networks?

(a) BLM calculates rent for passive reflectors and local exchange networks by using the same rent schedules for passive reflectors and local exchange networks as the Forest Service uses for the region in which the facilities are located. You may obtain the pertinent schedules from the Forest Service or from any BLM state or field office in the region in question. For passive reflectors and local exchange networks not covered by a Forest Service regional schedule, BLM uses the provisions in Sec. 2806.50 of this subpart to determine rent. See Forest Service regulations at 36 CFR chapter II.

(b) For the purposes of this subpart, the term:

(1) Passive reflector includes various types of nonpowered reflector devices used to bend or ricochet electronic signals between active relay stations or between an active relay station and a terminal. A passive reflector commonly serves a microwave communication system. The reflector requires point-to-point line-of-sight with the connecting relay stations, but does not require electric power; and

(2) Local exchange network means radio service which provides basic telephone service, primarily to rural communities.

Sec. 2806.44 How will BLM calculate rent for a facility owner's or facility manager's grant or lease which authorizes communication uses subject to the communication use rent schedule and communication uses whose rent BLM determines by other means?

(a) BLM establishes the rent for each of the uses in the facility that are not covered by the communication use rent schedule using Sec. 2806.50 of this subpart.

(b) BLM establishes the rent for each of the uses in the facility that are covered by the rent schedule using Sec. Sec. 2806.30 and 2806.31 of this subpart.

(c) BLM determines the facility owner or facility manager's rent by identifying the highest rent in the facility of those established under paragraphs (a) and (b) of this section, and adding to it 25 percent of the rent of all other uses subject to rent.

Other Rights-of-Way

Sec. 2806.50 How will BLM determine the rent for a grant when neither the linear rent schedule at Sec. 2806.20 nor the communication use rent schedule at Sec. 2806.30 applies?

When neither the linear nor the communication use rent schedule is appropriate, BLM determines your rent through a process based on comparable commercial practices, appraisals, competitive bid, or other reasonable methods. BLM will notify you in writing of the rent determination. If you disagree with the rent determination, you may appeal BLM's final determination under Sec. 2801.10 of this part.

Subpart 2807--Grant Administration and Operation

Sec. 2807.10 When can I start activities under my grant?

When you can start depends on the terms of your grant. You can start activities when you receive the grant you and BLM signed, unless the grant includes a requirement for BLM to provide a written Notice to Proceed. If your grant contains a Notice to Proceed requirement, you may not initiate construction, operation, maintenance, or termination until BLM issues you a Notice to Proceed.

Sec. 2807.11 When must I contact BLM during operations?

You must contact BLM:

(a) At the times specified in your grant;

(b) When your use requires a substantial deviation from the grant. You must obtain BLM's approval before you begin any activity that is a substantial deviation;

(c) When there is a change affecting your application or grant, including, but not limited to, changes in:

(1) Mailing address;

(2) Partners;

(3) Financial conditions; or

(4) Business or corporate status;

(d) When you submit a certification of construction, if the terms of your grant require it. A certification of construction is a document you submit to BLM after you have finished constructing a facility, but before you begin operating it, verifying that you have constructed and tested the facility to ensure that it complies with the terms of the grant and with applicable Federal and state laws and regulations; or

(e) When BLM requests it. You must update information or confirm that information you submitted before is accurate.

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

(a) If you hold a grant, you are liable to the United States and to third parties for any damage or injury they incur in connection with your use and occupancy of the right-of-way.

(b) You are strictly liable for any activity or facility associated with your right-of-way area which BLM determines presents a foreseeable hazard or risk of damage or injury to the United States. BLM will specify in the grant any activity or facility posing such hazard or risk, and the financial limitations on damages commensurate with such hazard or risk.

(1) BLM will not impose strict liability for damage or injury resulting primarily from an act of war, an act of God, or the negligence of the United States, except as otherwise provided by law.

(2) As used in this section, strict liability extends to costs incurred by the Federal government to control or abate conditions, such as fire or oil spills, which threaten life, property, or the environment, even if the threat occurs to areas that are not under Federal jurisdiction. This liability is separate and apart from liability under other provisions of law.

(3) You are strictly liable to the United States for damage or injury up to $2 million for any one incident. BLM will update this amount annually to adjust for changes in the Consumer Price Index for All Urban Consumers, U.S. City Average (CPI-U) as of July of each year (difference in CPI-U from July of one year to July of the following year), rounded to the nearest $1,000. This financial limitation does not apply to the release or discharge of hazardous substances on or near the grant, or where liability is otherwise not subject to this financial limitation under applicable law.

(4) BLM will determine your liability for any amount in excess of the $2 million strict liability limitation (as adjusted) through the ordinary rules of negligence.

(5) The rules of subrogation apply in cases where a third party caused the damage or injury.

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(c) If you cannot satisfy claims for injury or damage, all owners of any interests in, and all affiliates or subsidiaries of any holder of, a grant, except for corporate stockholders, are jointly and severally liable to the United States.

(d) If BLM issues a grant to more than one person, each is jointly and severally liable.

(e) By accepting the grant, you agree to fully indemnify or hold the United States harmless for liability, damage, or claims arising in connection with your use and occupancy of the right-of-way area.

(f) We address liability of state, tribal, and local governments in Sec. 2807.13 of this subpart.

(g) The provisions of this section do not limit or exclude other remedies.

Sec. 2807.13 As grant holders, what liabilities do state, tribal, and local governments have?

(a) If you are a state, tribal, or local government or its agency or instrumentality, you are liable to the fullest extent law allows at the time that BLM issues your grant. If you do not have the legal power to assume full liability, you must repair damages or make restitution to the fullest extent of your powers.

(b) BLM may require you to provide a bond, insurance, or other acceptable security to:

(1) Protect the liability exposure of the United States to claims by third parties arising out of your use and occupancy of the right-of- way;

(2) Cover any losses, damages, or injury to human health, the environment, and property incurred in connection with your use and occupancy of the right-of-way; and

(3) Cover any damages or injuries resulting from the release or discharge of hazardous materials incurred in connection with your use and occupancy of the right-of-way.

(c) Based on your record of compliance and changes in risk and conditions, BLM may require you to increase or decrease the amount of your bond, insurance, or security.

(d) The provisions of this section do not limit or exclude other remedies.

Sec. 2807.14 How will BLM notify me if someone else wants a grant for land subject to my grant or near or adjacent to it?

BLM will notify you in writing when it receives a grant application for land subject to your grant or near or adjacent to it. BLM will consider your written recommendations as to how the proposed use affects the integrity of, or your ability to operate, your facilities. The notice will contain a time period within which you must respond. The notice may also notify you of additional opportunities to comment.

Sec. 2807.15 How is grant administration affected if the land my grant encumbers is transferred to another Federal agency or out of Federal ownership?

(a) If there is a proposal to transfer the land your grant encumbers to another Federal agency, BLM may, after reasonable notice to you, transfer administration of your grant for the lands BLM formerly administered to another Federal agency, unless doing so would diminish your rights. If BLM determines your rights would be diminished by such a transfer, BLM can still transfer the land, but retain administration of your grant under existing terms and conditions.

(b) If there is a proposal to transfer the land your grant encumbers out of Federal ownership, BLM may, after reasonable notice to you and in conformance with existing policies and procedures:

(1) Transfer the land subject to your grant. In this case, administration of your grant for the lands BLM formerly administered is transferred to the new owner of the land;

(2) Transfer the land, but BLM retains administration of your grant; or

(3) Reserve to the United States the land your grant encumbers, and BLM retains administration of your grant.

(c) BLM or, if BLM no longer administers the land, the new land owner may negotiate new grant terms and conditions with you. This may include increasing the term of your grant, should you request it, to a perpetual grant under Sec. 2806.23(c) of this part or providing for an easement.

Sec. 2807.16 Under what conditions may BLM order an immediate temporary suspension of my activities?

(a) If BLM determines that you have violated one or more of the terms, conditions, or stipulations of your grant, we can order an immediate temporary suspension of activities within the right-of-way area to protect public health or safety or the environment. BLM can require you to stop your activities before holding an administrative proceeding on the matter.

(b) BLM may issue the immediate temporary suspension order orally or in writing to you, your contractor or subcontractor, or to any representative, agent, or employee representing you or conducting the activity. When you receive the order, you must stop the activity immediately. BLM will, as soon as practical, confirm an oral order by sending or hand delivering to you or your agent at your address a written suspension order explaining the reasons for it.

(c) You may file a written request for permission to resume activities at any time after BLM issues the order. In the request, give the facts supporting your request and the reasons you believe that BLM should lift the order. BLM must grant or deny your request within 5 business days after receiving it. If BLM does not respond within 5 business days, BLM has denied your request. You may appeal the denial under Sec. 2801.10 of this part.

(d) The immediate temporary suspension order is effective until you receive BLM's written notice to proceed with your activities.

Sec. 2807.17 Under what conditions may BLM suspend or terminate my grant?

(a) BLM may suspend or terminate your grant if you do not comply with applicable laws and regulations or any terms, conditions, or stipulations of the grant (such as rent payments), or if you abandon the right-of-way.

(b) A grant also terminates when:

(1) The grant contains a term or condition that has been met that requires the grant to terminate;

(2) BLM consents in writing to your request to terminate the grant; or

(3) It is required by law to terminate.

(c) Your failure to use your right-of-way for its authorized purpose for any continuous 5-year period creates a presumption of abandonment. BLM will notify you in writing of this presumption. You may rebut the presumption of abandonment by proving that you used the right-of-way or that your failure to use the right-of-way was due to circumstances beyond your control, such as acts of God, war, or casualties not attributable to you.

(d) You may appeal a decision under this section under Sec. 2801.10 of this part.

Sec. 2807.18 How will I know that BLM intends to suspend or terminate my grant?

(a) Before BLM suspends or terminates your grant under Sec. 2807.17(a) of this subpart, it will send you a written notice stating that it intends to suspend or terminate your grant and giving the grounds for such action. The notice will give you a reasonable opportunity to correct any noncompliance or start or resume use of the right-of-way, as appropriate.

(b) To suspend or terminate a grant issued as an easement, BLM must give you written notice and refer the matter to the Office of Hearings and Appeals for a hearing before an ALJ under 5 U.S.C. 554. No hearing is required if the grant provided by its terms for

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termination on the occurrence of a fixed or agreed upon condition, event, or time. If the ALJ determines that grounds for suspension or termination exist and such action is justified, BLM will suspend or terminate the grant.

Sec. 2807.19 When my grant terminates, what happens to any facilities on it?

(a) After your grant terminates, you must remove any facilities within the right-of-way within a reasonable time, as determined by BLM, unless BLM instructs you otherwise in writing, or termination is due to non-payment of rent (see Sec. 2806.13(c) of this part).

(b) After removing the facilities, you must remediate and restore the right-of-way area to a condition satisfactory to BLM, including the removal and clean up of any hazardous materials.

(c) If you do not remove all facilities within a reasonable period as determined by BLM, BLM may declare them to be the property of the United States. However, you are still liable for the costs of removing them and for remediating and restoring the right-of-way area.

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

(a) You must amend your application or seek an amendment of your grant when there is a proposed substantial deviation in location or use.

(b) The requirements to amend an application or grant are the same as those for a new application, including paying processing and monitoring fees and rent according to Sec. Sec. 2804.14, 2805.16, and 2806.10 of this part.

(c) Any activity not authorized by your grant may subject you to prosecution under applicable law and to trespass charges under subpart 2808 of this part.

(d) If your grant was issued prior to October 21, 1976, and there is a proposed substantial deviation in the location or use or terms and conditions of your right-of-way grant, you must apply for a new grant consistent with the remainder of this section. BLM may respond to your request in one of the following ways:

(1) If BLM approves your application, BLM will terminate your old grant and you will receive a new grant under 43 U.S.C. 1761 et seq. and the regulations in this part. BLM may include the same terms and conditions in the new grant as were in the original grant as to annual rent, duration, and nature of interest if BLM determines, based on current land use plans and other management decisions, that it is in the public interest to do so; or

(2) Alternatively, BLM may keep the old grant in effect and issue a new grant for the new use or location, or terms and conditions.

(e) You must apply for a new grant to allow realignment of your railroad and appurtenant communication facilities. BLM must issue a decision within 6 months after it receives your complete application. BLM may include the same terms and conditions in the new grant as were in the original grant as to annual rent, duration, and nature of interest if:

(1) These terms are in the public interest;

(2) The lands are of approximately equal value; and

(3) The lands involved are not within an incorporated community.

Sec. 2807.21 May I assign my grant?

(a) With BLM's approval, you may assign, in whole or in part, any right or interest in a grant.

(b) In order to assign a grant, the proposed assignee must file an application and satisfy the same procedures and standards as for a new grant, including paying processing fees (see subpart 2804 of this part).

(c) The assignment application must also include:

(1) Documentation that the assignor agrees to the assignment; and

(2) A signed statement that the proposed assignee agrees to comply with and be bound by the terms and conditions of the grant that is being assigned and all applicable laws and regulations.

(d) BLM will not recognize an assignment until it approves it in writing. BLM will approve the assignment if doing so is in the public interest. BLM may modify the grant or add bonding and other requirements, including additional terms and conditions, to the grant when approving the assignment. BLM may decrease rents if the new holder qualifies for an exemption (see Sec. 2806.14 of this part), or waiver or reduction (see Sec. 2806.15 of this part) and the previous holder did not. Similarly, BLM may increase rents if the previous holder qualified for an exemption or waiver or reduction and the new holder does not. If BLM approves the assignment, the benefits and liabilities of the grant apply to the new grant holder.

(e) The processing time and conditions described at Sec. 2804.25(c) of this part apply to assignment applications.

Sec. 2807.22 How do I renew my grant?

(a) If your grant specifies that it is renewable, and you choose to renew it, you must apply to BLM to renew the grant at least 120 calendar days before your grant expires. BLM will renew the grant if you are complying with the terms, conditions, and stipulations of the grant and applicable laws and regulations.

(b) If your grant does not address whether it is renewable, you may apply to BLM to renew the grant. You must send BLM your application at least 120 calendar days before your grant expires. In your application you must show that you are complying with the terms, conditions, and stipulations of the grant and applicable laws and regulations. BLM has the discretion to renew the grant if doing so is in the public interest.

(c) Submit your application under paragraph (a) or (b) of this section and include the same information necessary for a new application (see subpart 2804 of this part). You must reimburse BLM in advance for the administrative costs of processing the renewal in accordance with Sec. 2804.14 of this part.

(d) BLM will review your application and determine the applicable terms and conditions of any renewed grant.

(e) BLM will not renew grants issued before October 21, 1976. If you hold such a grant and would like to continue to use the right-of- way beyond your grant's expiration date, you must apply to BLM for a new FLPMA grant (see subpart 2804 of this part). You must send BLM your application at least 120 calendar days before your grant expires.

(f) If BLM denies your application, you may appeal the decision under Sec. 2801.10 of this part.

Subpart 2808--Trespass

Sec. 2808.10 What is trespass?

(a) Trespass is using, occupying, or developing the public lands or their resources without a required authorization or in a way that is beyond the scope and terms and conditions of your authorization. Trespass is a prohibited act.

(b) Trespass includes acts or omissions causing unnecessary or undue degradation to the public lands or their resources. In determining whether such degradation is occurring, BLM may consider the effects of the activity on resources and land uses outside the area of the activity.

(c) There are two kinds of trespass, willful and non-willful.

(1) Willful trespass is voluntary or conscious trespass and includes trespass committed with criminal or malicious intent. It includes a consistent pattern of actions taken with knowledge, even if those actions are taken in the belief that the conduct is reasonable or legal.

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(2) Non-willful trespass is trespass committed by mistake or inadvertence.

Sec. 2808.11 What will BLM do if it determines that I am in trespass?

(a) BLM will notify you in writing of the trespass and explain your liability. Your liability includes:

(1) Reimbursing the United States for all costs incurred in investigating and terminating the trespass;

(2) Paying the rental for the lands, as provided for in subpart 2806 of this part, for the current and past years of trespass, or, where applicable, the cumulative value of the current use fee, amortization fee, and maintenance fee for unauthorized use of any BLM- administered road; and

(3) Rehabilitating and restoring any damaged lands or resources. If you do not rehabilitate and restore the lands and resources within the time set by BLM in the notice, you will be liable for the costs the United States incurs in rehabilitating and restoring the lands and resources.

(b) In addition to amounts you owe under paragraph (a) of this section, BLM may assess penalties as follows:

(1) For willful or repeated non-willful trespass, the penalty is two times the rent. For roads, the penalty is two times the charges for road use, amortization, and maintenance which have accrued since the trespass began.

(2) For non-willful trespass not resolved within 30 calendar days after receiving the written notice under paragraph (a) of this section, the penalty is an amount equal to the rent. To resolve the trespass you must meet one of the conditions identified in 43 CFR 9239.7-1. For roads, the penalty is an amount equal to the charges for road use, amortization, and maintenance which have accrued since the trespass began.

(c) The penalty will not be less than the fee for a Processing Category 2 application (see Sec. 2804.14 of this part) for non-willful trespass or less than three times this amount for willful or repeated non-willful trespass. You must pay whichever is the higher of:

(1) The amount computed in paragraph (b) of this section; or

(2) The minimum penalty amount in paragraph (c) of this section.

(d) In addition to civil penalties under paragraph (b) of this section, you may be tried before a United States magistrate judge and fined no more than $1,000 or imprisoned for no more than 12 months, or both, for a knowing and willful trespass, as provided at 43 CFR 9262.1 and 43 U.S.C. 1733(a).

(e) Until you comply with the requirements of 43 CFR 9239.7-1, BLM will not process any of your applications for any activities on BLM lands.

(f) You may appeal a trespass decision under Sec. 2801.10 of this part.

(g) Nothing in this section limits your liability under any other Federal or state law.

Sec. 2808.12 May I receive a grant if I am or have been in trespass?

Until you satisfy your liability for a trespass, BLM will not process any applications you have pending for any activity on BLM- administered lands. A history of trespass will not necessarily disqualify you from receiving a grant. In order to correct a trespass, you must apply under the procedures described at subpart 2804 of this part. BLM will process your application as if it were a new use. Prior unauthorized use does not create a preference for receiving a grant.

Subpart 2809--Grants for Federal Agencies

Sec. 2809.10 Do the regulations in this part apply to Federal agencies?

The regulations in this part apply to Federal agencies to the extent possible, except that:

(a) BLM may suspend or terminate a Federal agency's grant only if:

(1) The terms and conditions of the Federal agency's grant allow it; or

(2) The agency head holding the grant consents to it; and

(b) Federal agencies are generally not required to pay rent for a grant (see Sec. 2806.14 of this part).

PART 2810--TRAMROADS AND LOGGING ROADS

0 2. Revise the authority citation for part 2810 to read as follows:

Authority: 43 U.S.C. 1181e, 1732, 1733, and 1740.

0 3. Revise Sec. 2812.1-3 to read as follows:

Sec. 2812.1-3 Unauthorized use, occupancy, or development.

Any use, occupancy, or development of the Revested Oregon and California Railroad and Reconveyed Coos Bay Wagon Road Grant Lands (O&C) lands (as is defined in 43 CFR 2812.0-5(e)), for tramroads without an authorization pursuant to this subpart, or which is beyond the scope and specific limitations of such an authorization, or that cause unnecessary or undue degradation, is prohibited and shall constitute a trespass as defined in Sec. 2808.10 of this chapter. Anyone determined by the authorized officer to be in violation of this section shall be notified of such trespass in writing and shall be liable to the United States for all costs and payments determined in the same manner as set forth in subpart 2808 of this chapter.

0 4. Revise part 2880 to read as follows:

PART 2880--RIGHTS-OF-WAY UNDER THE MINERAL LEASING ACT

Subpart 2881--General Information Sec. 2881.2 What is the objective of BLM's right-of-way program? 2881.5 What acronyms and terms are used in the regulations in this part? 2881.7 Scope. 2881.9 Severability. 2881.10 How do I appeal a BLM decision issued under the regulations in this part? 2881.11 When do I need a grant from BLM for an oil and gas pipeline? 2881.12 When do I need a TUP for an oil and gas pipeline? Subpart 2882--Lands Available for MLA Grants and TUPs 2882.10 What lands are available for grants or TUPs? Subpart 2883--Qualifications for Holding MLA Grants and TUPs 2883.10 Who may hold a grant or TUP? 2883.11 Who may not hold a grant or TUP? 2883.12 How do I prove I am qualified to hold a grant or TUP? 2883.13 What happens if BLM issues me a grant or TUP and later determines that I am not qualified to hold it? 2883.14 What happens to my application, grant, or TUP if I die? Subpart 2884--Applying For MLA Grants or TUPs 2884.10 What should I do before I file my application? 2884.11 What information must I submit in my application? 2884.12 What is the processing fee for a grant or TUP application? 2884.13 Who is exempt from paying processing and monitoring fees? 2884.14 When does BLM reevaluate the processing and monitoring fees? 2884.15 What is a Master Agreement (Processing Category 5) and what information must I provide to BLM when I request one? 2884.16 What provisions do Master Agreements contain and what are their limitations? 2884.17 How will BLM process my Processing Category 6 application? 2884.18 What if there are two or more competing applications for the same pipeline? 2884.19 Where do I file my application for a grant or TUP? 2884.20 What are the public notification requirements for my application? 2884.21 How will BLM process my application? 2884.22 Can BLM ask me for additional information? 2884.23 Under what circumstances may BLM deny my application?

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2884.24 What fees do I owe if BLM denies my application or if I withdraw my application? 2884.25 What activities may I conduct on BLM lands covered by my application for a grant or TUP while BLM is processing my application? 2884.26 When will BLM issue the grant or TUP when the lands are managed by two or more Federal agencies? 2884.27 What additional requirement is necessary for grants or TUPs for pipelines 24 or more inches in diameter? Subpart 2885--Terms and Conditions of MLA Grants and TUPs 2885.10 When is a grant or TUP effective? 2885.11 What terms and conditions must I comply with? 2885.12 What rights does a grant or TUP convey? 2885.13 What rights does the United States retain? 2885.14 What happens if I need a right-of-way wider than 50 feet plus the ground occupied by the pipeline and related facilities? 2885.15 How will BLM charge me rent? 2885.16 When do I pay rent? 2885.17 What happens if I pay the rent late? 2885.18 When must I make estimated rent payments to BLM? 2885.19 What is the rent for a linear right-of-way? 2885.20 How will BLM calculate my rent for linear rights-of-way the schedule covers? 2885.21 How must I make rent payments for my grant or TUP? 2885.22 How will BLM calculate rent for communication uses ancillary to a linear grant, TUP, or other use authorization? 2885.23 If I hold a grant or TUP, what monitoring fees must I pay? 2885.24 When do I pay monitoring fees? Subpart 2886--Operations on MLA Grants and TUPs 2886.10 When can I start activities under my grant or TUP? 2886.11 Who regulates activities within my right-of-way or TUP area? 2886.12 When must I contact BLM during operations? 2886.13 If I hold a grant or TUP, for what am I liable? 2886.14 As grant or TUP holders, what liabilities do state, tribal, and local governments have? 2886.15 How is grant or TUP administration affected if the BLM land my grant or TUP encumbers is transferred to another Federal agency or out of Federal ownership? 2886.16 Under what conditions may BLM order an immediate temporary suspension of my activities? 2886.17 Under what conditions may BLM suspend or terminate my grant or TUP? 2886.18 How will I know that BLM intends to suspend or terminate my grant or TUP? 2886.19 When my grant or TUP terminates, what happens to any facilities on it? Subpart 2887--Amending, Assigning, or Renewing MLA Grants and TUPs 2887.10 When must I amend my application, seek an amendment of my grant or TUP, or obtain a new grant or TUP? 2887.11 May I assign my grant or TUP? 2887.12 How do I renew my grant? Subpart 2888--Trespass 2888.10 What is trespass? 2888.11 May I receive a grant if I am or have been in trespass?

Authority: 30 U.S.C. 185 and 189.

Subpart 2881--General Information

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

It is BLM's objective to grant rights-of-way under the regulations in this part to any qualified individual, business, or government entity and to direct and control the use of rights-of-way on public lands in a manner that:

(a) Protects the natural resources associated with Federal lands and adjacent lands, whether private or administered by a government entity;

(b) Prevents unnecessary or undue degradation to public lands;

(c) Promotes the use of rights-of-way in common considering engineering and technological compatibility, national security, and land use plans; and

(d) Coordinates, to the fullest extent possible, all BLM actions under the regulations in this part with state and local governments, interested individuals, and appropriate quasi-public entities.

Sec. 2881.5 What acronyms and terms are used in the regulations in this part?

(a) Acronyms. Unless an acronym is listed in this section, the acronyms listed in part 2800 of this chapter apply to this part. As used in this part:

MLA means the Mineral Leasing Act of 1920, as amended (30 U.S.C. 185).

TAPS means the Trans-Alaska Oil Pipeline System.

TUP means a temporary use permit.

(b) Terms. Unless a term is defined in this part, the defined terms in part 2800 of this chapter apply to this part. As used in this part, the term:

Act means section 28 of the Mineral Leasing Act of 1920, as amended (30 U.S.C. 185).

Actual costs means the financial measure of resources the Federal government expends or uses in processing a right-of-way application or in monitoring the construction, operation, and termination of a facility authorized by a grant or permit. Actual costs include both direct and indirect costs, exclusive of management overhead costs.

Casual use means activities ordinarily resulting in no or negligible disturbance of the public lands, resources, or improvements. Examples of casual use include: Surveying, marking routes, and collecting data to prepare applications for grants or TUPs.

Facility means an improvement or structure, whether existing or planned, that is, or would be, owned and controlled by the grant or TUP holder within the right-of-way or TUP area.

Federal lands means all lands owned by the United States, except lands:

(1) In the National Park System;

(2) Held in trust for an Indian or Indian tribe; or

(3) On the Outer Continental Shelf.

Grant means any authorization or instrument BLM issues under section 28 of the Mineral Leasing Act, 30 U.S.C. 185, authorizing a nonpossessory, nonexclusive right to use Federal lands to construct, operate, maintain, or terminate a pipeline. The term includes those authorizations and instruments BLM and its predecessors issued for like purposes before November 16, 1973, under then existing statutory authority. It does not include authorizations issued under FLPMA (43 U.S.C. 1761 et seq.).

Monitoring means those actions, subject to Sec. 2886.11 of this part, that the Federal government performs to ensure compliance with the terms, conditions, and stipulations of a grant or TUP.

(1) For Monitoring Categories 1 through 4, the actions include inspecting construction, operation, maintenance, and termination of permanent or temporary facilities and protection and rehabilitation activities until the holder completes rehabilitation of the right-of- way or TUP area and BLM approves it;

(2) For Monitoring Category 5 (Master Agreements), those actions agreed to in the Master Agreement; and

(3) For Monitoring Category 6, those actions agreed to between BLM and the applicant before BLM issues the grant or TUP.

Oil or gas means oil, natural gas, synthetic liquid or gaseous fuels, or any refined product produced from them.

Pipeline means a line crossing Federal lands for transportation of oil or gas. The term includes feeder lines, trunk lines, and related facilities, but does not include a lessee's or lease operator's production facilities located on its oil and gas lease.

Pipeline system means all facilities, whether or not located on Federal lands, used by a grant holder in connection with the construction, operation, maintenance, or termination of a pipeline.

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Production facilities means a lessee's or lease operator's pipes and equipment used on its oil and gas lease to aid in extracting, processing, and storing oil or gas. The term includes:

(1) Storage tanks and processing equipment;

(2) Gathering lines upstream from such tanks and equipment, or in the case of gas, upstream from the point of delivery; and

(3) Pipes and equipment, such as water and gas injection lines, used in the production process for purposes other than carrying oil and gas downstream from the wellhead.

Related facilities means those structures, devices, improvements, and sites, located on Federal lands, which may or may not be connected or contiguous to the pipeline, the substantially continuous use of which is necessary for the operation or maintenance of a pipeline, such as:

(1) Supporting structures;

(2) Airstrips;

(3) Roads;

(4) Campsites;

(5) Pump stations, including associated heliports, structures, yards, and fences;

(6) Valves and other control devices;

(7) Surge and storage tanks;

(8) Bridges;

(9) Monitoring and communication devices and structures housing them;

(10) Terminals, including structures, yards, docks, fences, and storage tank facilities;

(11) Retaining walls, berms, dikes, ditches, cuts and fills; and

(12) Structures and areas for storing supplies and equipment.

Right-of-way means the Federal lands BLM authorizes a holder to use or occupy under a grant.

Substantial deviation means a change in the authorized location or use which requires:

(1) Construction or use outside the boundaries of the right-of-way or TUP area; or

(2) Any change from, or modification of, the authorized use. Examples of substantial deviation include: Adding equipment, overhead or underground lines, pipelines, structures, or other facilities not included in the original grant or TUP.

Temporary use permit or TUP means a document BLM issues under 30 U.S.C. 185 that is a revocable, nonpossessory privilege to use specified Federal lands in the vicinity of and in connection with a right-of-way, to construct, operate, maintain, or terminate a pipeline or to protect the environment or public safety. A TUP does not convey any interest in land.

Third party means any person or entity other than BLM, the applicant, or the holder of a right-of-way authorization.

Sec. 2881.7 Scope.

(a) What do these regulations apply to? The regulations in this part apply to:

(1) Issuing grants and TUPs for pipelines to transport oil or gas, and administering, amending, assigning, renewing, and terminating them;

(2) All grants and permits BLM and its predecessors previously issued under section 28 of the Act; and

(3) Pipeline systems, or parts thereof, within a Federal oil and gas lease owned by:

(i) A party who is not the lessee or lease operator; or

(ii) The lessee or lease operator which are downstream from a custody transfer metering device.

(b) What don't these regulations apply to? The regulations in this part do not apply to:

(1) Production facilities on an oil and gas lease which operate for the benefit of the lease. The lease authorizes these production facilities;

(2) Pipelines crossing Federal lands under the jurisdiction of a single Federal department or agency other than BLM, including bureaus and agencies within the Department of the Interior;

(3) Authorizations BLM issues to Federal agencies for oil or gas transportation under Sec. 2801.6 of this chapter; or

(4) Authorizations BLM issues under Title V of the Federal Land Policy and Management Act of 1976 (see part 2800 of this chapter).

(c) Notwithstanding the definition of ``grant'' in section 2881.5 of this subpart, the regulations in this part apply, consistent with 43 U.S.C. 1652(c), to any authorization issued by the Secretary of the Interior or his or her delegate under 43 U.S.C. 1652(b) for the Trans- Alaska Oil Pipeline System.

Sec. 2881.9 Severability.

If a court holds any provisions of the regulations in this part or their applicability to any person or circumstances invalid, the remainder of these rules and their applicability to other people or circumstances will not be affected.

Sec. 2881.10 How do I appeal a BLM decision issued under the regulations in this part?

(a) You may appeal a BLM decision issued under the regulations in this part in accordance with part 4 of this title.

(b) All BLM decisions under this part remain in effect pending appeal unless the Secretary of the Interior rules otherwise, or as noted in this part. You may petition for a stay of a BLM decision under this part with the Office of Hearings and Appeals, Department of the Interior. Unless otherwise noted in this part, BLM will take no action on your application while your appeal is pending.

Sec. 2881.11 When do I need a grant from BLM for an oil and gas pipeline?

You must have a BLM grant under 30 U.S.C. 185 for an oil or gas pipeline or related facility to cross Federal lands under:

(a) BLM's jurisdiction; or

(b) The jurisdiction of two or more Federal agencies.

Sec. 2881.12 When do I need a TUP for an oil and gas pipeline?

You must obtain a TUP from BLM when you require temporary use of more land than your grant authorizes in order to construct, operate, maintain, or terminate your pipeline, or to protect the environment or public safety.

Subpart 2882--Lands Available for MLA Grants and TUPs

Sec. 2882.10 What lands are available for grants or TUPs?

(a) For lands BLM exclusively manages, we use the same criteria to determine whether lands are available for grants or TUPs as we do to determine whether lands are available for FLPMA grants (see subpart 2802 of this chapter).

(b) BLM may require common use of a right-of-way and may restrict new grants to existing right-of-way corridors where safety and other considerations allow. Generally, BLM land use plans designate right-of- way corridors.

(c) Where a proposed oil or gas right-of-way involves lands managed by two or more Federal agencies, see Sec. 2884.26 of this part.

Subpart 2883--Qualifications for Holding MLA Grants and TUPs

Sec. 2883.10 Who may hold a grant or TUP?

To hold a grant or TUP under these regulations, you must be:

(a)(1) A United States citizen, an association of such citizens, or a corporation, partnership, association, or similar business entity organized under the laws of the United States, or of any state therein; or

(2) A state or local government; and

(b) Financially and technically able to construct, operate, maintain, and terminate the proposed facilities.

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Sec. 2883.11 Who may not hold a grant or TUP?

Aliens may not acquire or hold any direct or indirect interest in grants or TUPs, except that they may own or control stock in corporations holding grants or TUPs if the laws of their country do not deny similar or like privileges to citizens of the United States.

Sec. 2883.12 How do I prove I am qualified to hold a grant or TUP?

(a) If you are a private individual, BLM requires no proof of citizenship with your application;

(b) If you are a partnership, corporation, association, or other business entity, submit the following information, as applicable, in your application:

(1) Copies of the formal documents creating the business entity, such as articles of incorporation, and including the corporate bylaws;

(2) Evidence that the party signing the application has the authority to bind the applicant;

(3) The name, address, and citizenship of each participant (e.g., partner, associate, or other) in the business entity;

(4) The name, address, and citizenship of each shareholder owning 3 percent or more of each class of shares, and the number and percentage of any class of voting shares of the business entity which such shareholder is authorized to vote;

(5) The name and address of each affiliate of the business entity;

(6) The number of shares and the percentage of any class of voting stock owned by the business entity, directly or indirectly, in any affiliate controlled by the business entity; and

(7) The number of shares and the percentage of any class of voting stock owned by an affiliate, directly or indirectly, in the business entity controlled by the affiliate.

(c) If you have already supplied this information to BLM and the information remains accurate, you only need to reference the existing or previous BLM serial number under which it is filed.

Sec. 2883.13 What happens if BLM issues me a grant or TUP and later determines that I am not qualified to hold it?

If BLM issues you a grant or TUP, and later determines that you are not qualified to hold it, BLM will terminate your grant or TUP under 30 U.S.C. 185(o). You may appeal this decision under Sec. 2881.10 of this part.

Sec. 2883.14 What happens to my application, grant, or TUP if I die?

(a) If an applicant or grant or TUP holder dies, any inheritable interest in the application, grant, or TUP will be distributed under state law.

(b) If the distributee of a grant or TUP is not qualified to hold a grant or TUP under Sec. 2883.10 of this subpart, BLM will recognize the distributee as grant or TUP holder and allow the distributee to hold its interest in the grant or TUP for up to two years. During that period, the distributee must either become qualified or divest itself of the interest.

Subpart 2884--Applying for MLA Grants or TUPs

Sec. 2884.10 What should I do before I file my application?

(a) When you determine that a proposed oil and gas pipeline system would cross Federal lands under BLM jurisdiction, or under the jurisdiction of two or more Federal agencies, you should notify BLM.

(b) Before filing an application with BLM, we encourage you to make an appointment for a preapplication meeting with the appropriate personnel in the BLM field office nearest the lands you seek to use. During the preapplication meeting BLM can:

(1) Identify potential routing and other constraints;

(2) Determine whether or not the lands are located within a designated or existing right-of-way corridor;

(3) Tentatively schedule the processing of your proposed application;

(4) Provide you information about qualifications for holding grants and TUPs, and inform you of your financial obligations, such as processing and monitoring costs and rents; and

(5) Identify any work which will require obtaining one or more TUPs.

(c) BLM may share this information with Federal, state, tribal, and local government agencies to ensure that these agencies are aware of any authorizations you may need from them.

(d) BLM will keep confidential any information in your application that you mark as ``confidential'' or ``proprietary'' to the extent allowed by law.

Sec. 2884.11 What information must I submit in my application?

(a) File your application on Form SF-299 or as part of an Application for Permit to Drill or Reenter (BLM Form 3160-3) or Sundry Notice and Report on Wells (BLM Form 3160-5), available from any BLM office. Provide a complete description of the project, including:

(1) The exact diameters of the pipes and locations of the pipelines;

(2) Proposed construction and reclamation techniques; and

(3) The estimated life of the facility.

(b) File with BLM copies of any applications you file with other Federal agencies, such as the Federal Energy Regulatory Commission (see 18 CFR chapter I), for licenses, certificates, or other authorities involving the right-of-way.

(c) BLM may ask you to submit additional information beyond that required in the form to assist us in processing your application. This information may include:

(1) A list of any Federal and state approvals required for the proposal;

(2) A description of alternative route(s) and mode(s) you considered when developing the proposal;

(3) Copies of, or reference to, all similar applications or grants you have submitted, currently hold, or have held in the past;

(4) A statement of the need and economic feasibility of the proposed project;

(5) The estimated schedule for constructing, operating, maintaining, and terminating the project (a Plan of Development);

(6) A map of the project, showing its proposed location and showing existing facilities adjacent to the proposal;

(7) A statement certifying that you are of legal age and authorized to do business in the state(s) where the right-of-way would be located, and that you have submitted correct information to the best of your knowledge;

(8) A statement of the environmental, social, and economic effects of the proposal;

(9) A statement of your financial and technical capability to construct, operate, maintain, and terminate the project;

(10) Proof that you are a United States citizen; and

(11) Any other information BLM considers necessary to process your application.

(d) Before BLM reviews your application for a grant, grant amendment, or grant renewal, you must submit the following information and material to ensure that the facilities will be constructed, operated, and maintained as common carriers under 30 U.S.C. 185(r):

(1) Conditions for, and agreements among, owners or operators to add pumping facilities and looping, or otherwise to increase the pipeline or terminal's throughput capacity in response to actual or anticipated increases in demand;

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(2) Conditions for adding or abandoning intake, offtake, or storage points or facilities; and

(3) Minimum shipment or purchase tenders.

(e) If conditions or information affecting your application change, promptly notify BLM and submit to BLM in writing the necessary changes to your application. BLM may deny your application if you fail to do so.

Sec. 2884.12 What is the processing fee for a grant or TUP application?

(a) You must pay a fee with the application to cover the costs to the Federal Government of processing your application before the Federal Government incurs them. The fees for Processing Categories 1 through 4 (see paragraph (b) of this section) are one-time fees and are not refundable. The fees are categorized based on an estimate of the amount of time that the Federal Government will expend to process your application and issue a decision granting or denying the application.

(b) There is no processing fee if work is estimated to take one hour or less. Processing fees are based on categories. These categories and fees for 2005 are:

2005 Processing Fee Schedule

Processing fee per application as of June 21, Federal work hours 2005. To be adjusted annually for changes in the Processing category

involved

IPD-GDP. See paragraph (c) of this section for update information

(1) Applications for new grants or Estimated Federal work $97. TUPs, assignments, renewals, and hours are >1 8 24 36 50. amendments to existing grants or TUPs.

(c) BLM will revise paragraph (b) of this section to update the processing fees for Categories 1 through 4 in the schedule each calendar year, based on the previous year's change in the IPD-GDP, as measured second quarter to second quarter. BLM will round these changes to the nearest dollar. BLM will update Category 5 processing fees as specified in the Master Agreement. You also may obtain a copy of the current schedule from any BLM state or field office or by writing: Director, BLM, 1849 C St., NW., Mail Stop 1000LS, Washington, DC 20240. BLM also posts the current schedule on the BLM Homepage on the Internet at http://www.blm.gov.

(d) After an initial review of your application, BLM will notify you of the processing category into which your application fits. You must then submit the appropriate payment for that category before BLM begins processing your application. Your signature on a cost recovery Master Agreement constitutes your agreement with the processing category decision. If you disagree with the category that BLM has determined for your application, you may appeal the decision under Sec. 2881.10 of this part. If you paid the processing fee and you appeal a Processing Category 1 through 4 or a Processing Category 6 determination to IBLA, BLM will process your application while the appeal is pending. If IBLA finds in your favor, you will receive a refund or adjustment of your processing fee.

(e) In processing your application, BLM may determine at any time that the application requires preparing an EIS. If this occurs, BLM will send you a decision changing your processing category to Processing Category 6. You may appeal the decision under Sec. 2881.10 of this part.

(f) If you hold an authorization relating to TAPS, BLM will send you a written statement seeking reimbursement of actual costs within 60 calendar days after the close of each quarter. Quarters end on the last day of March, June, September, and December. In processing applications and administering authorizations relating to TAPS, the Department of the Interior will avoid unnecessary employment of personnel and needless expenditure of funds.

Sec. 2884.13 Who is exempt from paying processing and monitoring fees?

You are exempt from paying processing and monitoring fees if you are a state or local government or an agency of such a government and BLM issues the grant for governmental purposes benefitting the general public. If your principal source of revenue results from charges you levy on customers for services similar to those of a profit-making corporation or business, you are not exempt.

Sec. 2884.14 When does BLM reevaluate the processing and monitoring fees?

BLM reevaluates the processing and monitoring fees (see Sec. 2885.23 of this part) for each category and the categories themselves within 5 years after they go into effect and at 10-year intervals after that. When reevaluating processing and monitoring fees, BLM considers all factors that affect the fees, including, but not limited to, any changes in:

(a) Technology;

(b) The procedures for processing applications and monitoring grants;

(c) Statutes and regulations relating to the right-of-way program; or

(d) The IPD-GDP.

Sec. 2884.15 What is a Master Agreement (Processing Category 5) and what information must I provide to BLM when I request one?

(a) A Master Agreement (Processing Category 5) is a written agreement covering processing and monitoring fees (see Sec. 2885.23 of this part) negotiated between BLM and you that involves multiple BLM grant or TUP approvals for projects within a defined geographic area.

(b) Your request for a Master Agreement must:

(1) Describe the geographic area covered by the Agreement and the scope of the activity you plan;

(2) Include a preliminary work plan. This plan must state what work you

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must do and what work BLM must do to process your application. Both parties must periodically update the work plan, as specified in the Agreement, and mutually agree to the changes;

(3) Contain a preliminary cost estimate and a timetable for processing the application and completing the project;

(4) State whether you want the Agreement to apply to future applications in the same geographic area that are not part of the same project(s); and

(5) Contain any other relevant information that BLM needs to process the application.

Sec. 2884.16 What provisions do Master Agreements contain and what are their limitations?

(a) A Master Agreement:

(1) Specifies that you must comply with all applicable laws and regulations;

(2) Describes the work you will do and the work BLM will do to process the application;

(3) Describes the method of periodic billing, payment, and auditing;

(4) Describes the processes, studies, or evaluations you will pay for;

(5) Explains how BLM will monitor the grant and how BLM will recover monitoring costs;

(6) Contains provisions allowing for periodic review and updating, if required;

(7) Contains specific conditions for terminating the Agreement; and

(8) Contains any other provisions BLM considers necessary.

(b) BLM will not enter into any Agreement that is not in the public interest.

Sec. 2884.17 How will BLM process my Processing Category 6 application?

(a) For Processing Category 6 applications, you and BLM must enter into a written agreement that describes how BLM will process your application. The final agreement consists of a work plan and a financial plan.

(b) In processing your application, BLM will:

(1) Determine the issues subject to analysis under NEPA;

(2) Prepare a preliminary work plan;

(3) Develop a preliminary financial plan, which estimates the actual costs of processing your application and monitoring your project;

(4) Discuss with you:

(i) The preliminary plans and data;

(ii) The availability of funds and personnel;

(iii) Your options for the timing of processing and monitoring fee payments; and

(iv) Financial information you must submit; and

(5) Complete final scoping and develop final work and financial plans which reflect any work you have agreed to do. BLM will also present you with the final estimate of the costs you must reimburse the United States, including the cost for monitoring the project.

(c) BLM retains the option to prepare any environmental documents related to your application. If BLM allows you to prepare any environmental documents and conduct any studies that BLM needs to process your application, you must do the work following BLM standards. For this purpose, you and BLM may enter into a written agreement. BLM will make the final determinations and conclusions arising from such work.

(d) BLM will periodically, as stated in the agreement, estimate processing costs for a specific work period and notify you of the amount due. You must pay the amount due before BLM will continue working on your application. If your payment exceeds the costs that the United States incurred for the work, BLM will either adjust the next billing to reflect the excess, or refund you the excess under 43 U.S.C. 1734. You may not deduct any amount from a payment without BLM's prior written approval.

Sec. 2884.18 What if there are two or more competing applications for the same pipeline?

(a) If there are two or more competing applications for the same pipeline and your application is in:

(1) Processing Categories 1 through 4. You must reimburse BLM for processing costs as if the other application or applications had not been filed.

(2) Processing Category 6. You are responsible for processing costs identified in your application. If BLM cannot readily separate costs, such as costs associated with preparing environmental analyses, you and any competing applicants must pay an equal share or a proportion agreed to in writing among all applicants and BLM. If you agree to share costs that are common to your application and that of a competing applicant, and the competitor does not pay the agreed upon amount, you are liable for the entire amount due. The applicants must pay the entire processing fee in advance. BLM will not process the application until we receive the advance payments.

(b) Who determines whether competition exists? BLM determines whether the applications are compatible in a single right-of-way or are competing applications to build the same pipeline.

(c) If BLM determines that competition exists, BLM will describe the procedures for a competitive bid through a bid announcement in a newspaper of general circulation in the area affected by the potential right-of-way and by a notice in the Federal Register.

Sec. 2884.19 Where do I file my application for a grant or TUP?

(a) If BLM has exclusive jurisdiction over the lands involved, file your application with the BLM Field Office having jurisdiction over the lands described in the application.

(b) If another Federal agency has exclusive jurisdiction over the land involved, file your application with that agency and refer to its regulations for its requirements.

(c) If there are no BLM-administered lands involved, but the lands are under the jurisdiction of two or more Federal agencies, you may file your application at the BLM office in the vicinity of the pipeline. BLM will notify you where to direct future communications about the pipeline.

(d) If two or more Federal agencies, including BLM, have jurisdiction over the lands in the application, file it at any BLM office having jurisdiction over a portion of the Federal lands. BLM will notify you where to direct future communications about the pipeline.

Sec. 2884.20 What are the public notification requirements for my application?

(a) When BLM receives your application, it will publish a notice in the Federal Register or a newspaper of general circulation in the vicinity of the lands involved. If BLM determines the pipeline(s) will have only minor environmental impacts, it is not required to publish this notice. The notice will, at a minimum, contain:

(1) A description of the pipeline system; and

(2) A statement of where the application and related documents are available for review.

(b) BLM will send copies of the published notice for review and comment to the:

(1) Governor of each state within which the pipeline system would be located;

(2) Head of each local or tribal government or jurisdiction within which the pipeline system would be located; and

(3) Heads of other Federal agencies whose jurisdiction includes lands within which the pipeline system would be located.

(c) If your application involves a pipeline that is 24 inches or more in

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diameter, BLM will also send notice of the application to the appropriate committees of Congress in accordance with 30 U.S.C. 185(w).

(d) BLM may hold public hearings or meetings on your application if we determine there is sufficient interest to warrant the time and expense of such hearings or meetings. BLM will publish a notice of any such hearings or meetings in advance in the Federal Register or in a newspaper of general circulation in the vicinity of the lands involved.

Sec. 2884.21 How will BLM process my application?

(a) BLM will notify you in writing when it receives your application and will identify your processing fee described at Sec. 2884.12 of this subpart.

(b) Customer service standard. BLM will process your completed application as follows:

Processing category

Processing time

Conditions

1-4.......................... 60 calendar days. If processing your application will take longer than 60 calendar days, BLM will notify you in writing of this fact prior to the 30th calendar day and inform you of when you can expect a final decision on your application. 5............................ As specified in BLM will process the Master

applications as Agreement.

specified in the Agreement. 6............................ Over 60 calendar BLM will notify you in days.

writing within the initial 60 day processing period of the estimated processing time.

(c) Before issuing a grant or TUP, BLM will:

(1) Complete a NEPA analysis for the application or approve a NEPA analysis previously completed for the application, as required by 40 CFR parts 1500 through 1508;

(2) Determine whether or not your proposed use complies with applicable Federal and state laws, regulations, and local ordinances;

(3) Consult, as necessary, with other governmental entities;

(4) Hold public meetings, if sufficient public interest exists to warrant their time and expense. BLM will publish a notice in the Federal Register, a newspaper of general circulation in the vicinity of the lands involved, or both, announcing in advance any public hearings or meetings; and

(5) Take any other action necessary to fully evaluate and decide whether to approve or deny your application.

Sec. 2884.22 Can BLM ask me for additional information?

(a) If we ask for additional information we will follow the procedures in Sec. 2804.25(b) of this chapter.

(b) BLM may also ask other Federal agencies for additional information, for terms and conditions or stipulations which the grant or TUP should contain, and for advice as to whether or not to issue the grant or TUP.

Sec. 2884.23 Under what circumstances may BLM deny my application?

(a) BLM may deny your application if:

(1) The proposed use is inconsistent with the purpose for which BLM or other Federal agencies manage the lands described in your application;

(2) The proposed use would not be in the public interest;

(3) You are not qualified to hold a grant or TUP;

(4) Issuing the grant or TUP would be inconsistent with the Act, other laws, or these or other regulations;

(5) You do not have or cannot demonstrate the technical or financial capability to construct the pipeline or operate facilities within the right-of-way or TUP area; or

(6) You do not adequately comply with a deficiency notice (see Sec. 2804.25(b) of this chapter) or with any BLM requests for additional information needed to process the application.

(b) If BLM denies your application, you may appeal the decision under Sec. 2881.10 of this part.

Sec. 2884.24 What fees do I owe if BLM denies my application or if I withdraw my application?

If BLM denies your application, or you withdraw it, you owe the processing fee set forth at Sec. 2884.12(b) of this subpart, unless you have a Processing Category 5 or 6 application. Then, the following conditions apply:

(a) If BLM denies your Processing Category 5 or 6 application, you are liable for all actual costs that the United States incurred in processing it. The money you have not paid is due within 30 calendar days after receiving a bill for the amount due; and

(b) You may withdraw your application in writing before BLM issues a grant or TUP. If you do so, you are liable for all actual processing costs the United States has incurred up to the time you withdraw the application and for the actual costs of terminating your application. Any money you have not paid is due within 30 calendar days after receiving a bill for the amount due.

Sec. 2884.25 What activities may I conduct on BLM lands covered by my application for a grant or TUP while BLM is processing my application?

(a) You may conduct casual use activities on BLM lands covered by the application, as may any other member of the public. BLM does not require a grant or TUP for casual use on BLM lands.

(b) For any activities on BLM lands that are not casual use, you must obtain prior BLM approval. To conduct activities on lands administered by other Federal agencies, you must obtain any prior approval those agencies require.

Sec. 2884.26 When will BLM issue a grant or TUP when the lands are managed by two or more Federal agencies?

If the application involves lands managed by two or more Federal agencies, BLM will not issue or renew the grant or TUP until the heads of the agencies administering the lands involved have concurred. Where concurrence is not reached, the Secretary of the Interior, after consultation with these agencies, may issue or renew the grant or TUP, but not through lands within a Federal reservation where doing so would be inconsistent with the purposes of the reservation.

Sec. 2884.27 What additional requirement is necessary for grants or TUPs for pipelines 24 or more inches in diameter?

If an application is for a grant or TUP for a pipeline 24 inches or more in diameter, BLM will not issue or renew the grant or TUP until after we notify the appropriate committees of Congress in accordance with 30 U.S.C. 185(w).

Subpart 2885--Terms and Conditions of MLA Grants and TUPs

Sec. 2885.10 When is a grant or TUP effective?

A grant or TUP is effective after both you and BLM sign it. You must accept its terms and conditions in writing and pay any necessary rent and monitoring fees as set out in Sec. Sec. 2885.19 and 2885.23

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of this subpart. Your written acceptance constitutes an agreement between you and the United States that your right to use the Federal lands, as specified in the grant or TUP, is subject to the terms and conditions of the grant or TUP and applicable laws and regulations.

Sec. 2885.11 What terms and conditions must I comply with?

(a) Duration. All grants with a term of one year or longer will terminate on December 31 of the final year of the grant. The term of a grant may not exceed 30 years. The term of a TUP may not exceed 3 years. BLM will consider the following factors in establishing a reasonable term:

(1) The cost of the pipeline and related facilities you plan to construct, operate, maintain, or terminate;

(2) The pipeline's or related facility's useful life;

(3) The public purpose served; and

(4) Any potentially conflicting land uses; and

(b) Terms and conditions of use. BLM may modify your proposed use or change the route or location of the facilities in your application. By accepting a grant or TUP, you agree to use the lands described in the grant or TUP for the purposes set forth in the grant or TUP. You also agree to comply with, and be bound by, the following terms and conditions. During construction, operation, maintenance, and termination of the project you must:

(1) To the extent practicable, comply with all existing and subsequently enacted, issued, or amended Federal laws and regulations, and state laws and regulations applicable to the authorized use;

(2) Rebuild and repair roads, fences, and established trails destroyed or damaged by constructing, operating, maintaining, or terminating the project;

(3) Build and maintain suitable crossings for existing roads and significant trails that intersect the project;

(4) Do everything reasonable to prevent and suppress fires on or in the immediate vicinity of the right-of-way or TUP area;

(5) Not discriminate against any employee or applicant for employment during any phase of the project because of race, creed, color, sex, or national origin. You must also require subcontractors to not discriminate;

(6) Pay the rent and monitoring fees described in Sec. Sec. 2885.19 and 2885.23 of this subpart;

(7) If BLM requires, obtain and/or certify that you have obtained a surety bond or other acceptable security to cover any losses, damages, or injury to human health, the environment, and property incurred in connection with your use and occupancy of the right-of-way or TUP area, including terminating the grant or TUP, and to secure all obligations imposed by the grant or TUP and applicable laws and regulations. Your bond must cover liability for damages or injuries resulting from releases or discharges of hazardous materials. BLM may require a bond, an increase or decrease in the value of an existing bond, or other acceptable security at any time during the term of the grant or TUP. This bond is in addition to any individual lease, statewide, or nationwide oil and gas bonds you may have;

(8) Assume full liability if third parties are injured or damages occur to property on or near the right-of-way or TUP area (see Sec. 2886.13 of this part);

(9) Comply with project-specific terms, conditions, and stipulations, including requirements to:

(i) Restore, revegetate, and curtail erosion or any other rehabilitation measure BLM determines is necessary;

(ii) Ensure that activities in connection with the grant or TUP comply with air and water quality standards or related facility siting standards contained in applicable Federal or state law or regulations;

(iii) Control or prevent damage to scenic, aesthetic, cultural, and environmental values, including fish and wildlife habitat, and to public and private property and public health and safety;

(iv) Protect the interests of individuals living in the general area who rely on the area for subsistence uses as that term is used in Title VIII of ANILCA (16 U.S.C. 3111 et seq.); and

(v) Ensure that you construct, operate, maintain, and terminate the facilities on the lands in the right-of-way or TUP area in a manner consistent with the grant or TUP;

(10) Immediately notify all Federal, state, tribal, and local agencies of any release or discharge of hazardous material reportable to such entity under applicable law. You must also notify BLM at the same time, and send BLM a copy of any written notification you prepared;

(11) Not dispose of or store hazardous material on your right-of- way or TUP area, except as provided by the terms, conditions, and stipulation of your grant or TUP;

(12) Certify that your compliance with all requirements of the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. 11001 et seq., when you receive, assign, renew, amend, or terminate your grant or TUP;

(13) Control and remove any release or discharge of hazardous material on or near the right-of-way or TUP area arising in connection with your use and occupancy of the right-of-way or TUP area, whether or not the release or discharge is authorized under the grant or TUP. You must also remediate and restore lands and resources affected by the release or discharge to BLM's satisfaction and to the satisfaction of any other Federal, state, tribal, or local agency having jurisdiction over the land, resource, or hazardous material;

(14) Comply with all liability and indemnification provisions and stipulations in the grant or TUP;

(15) As BLM directs, provide diagrams or maps showing the location of any constructed facility;

(16) Construct, operate, and maintain the pipeline as a common carrier. This means that the pipeline owners and operators must accept, convey, transport, or purchase without discrimination all oil or gas delivered to the pipeline without regard to where the oil and gas was produced (i.e., whether on Federal or non-federal lands). Where natural gas not subject to state regulatory or conservation laws governing its purchase by pipeline companies is offered for sale, each pipeline company must purchase, without discrimination, any such natural gas produced in the vicinity of the pipeline. Common carrier provisions of this paragraph do not apply to natural gas pipelines operated by a:

(i) Person subject to regulation under the Natural Gas Act (15 U.S.C. 717 et seq.); or

(ii) Public utility subject to regulation by state or municipal agencies with the authority to set rates and charges for the sale of natural gas to consumers within the state or municipality.

(17) Within 30 calendar days after BLM requests it, file rate schedules and tariffs for oil and gas, or derivative products, transported by the pipeline as a common carrier with the agency BLM prescribes, and provide BLM proof that you made the required filing;

(18) With certain exceptions (listed in the statute), not export domestically produced crude oil by pipeline without Presidential approval (see 30 U.S.C. 185(u) and (s) and 50 U.S.C. App. 2401);

(19) Not exceed the right-of-way width that is specified in the grant without BLM's prior written authorization. If you need a right- of-way wider than 50 feet plus the ground occupied by the pipeline and related facilities, see Sec. 2885.14 of this subpart;

(20) Not use the right-of-way or TUP area for any use other than that authorized by the grant or TUP. If you

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require other pipelines, looping lines, or other improvements not authorized by the grant or TUP, you must first secure BLM's written authorization;

(21) Not use or construct on the land in the right-of-way or TUP area until:

(i) BLM approves your detailed plan for construction, operation, and termination of the pipeline, including provisions for rehabilitation of the right-of-way or TUP area and environmental protection; and

(ii) You receive a Notice to Proceed for all or any part of the right-of-way or TUP area. In certain situations BLM may waive this requirement in writing; and

(22) Comply with all other stipulations that BLM may require.

Sec. 2885.12 What rights does a grant or TUP convey?

The grant or TUP conveys to you only those rights which it expressly contains. BLM issues it subject to the valid existing rights of others, including the United States. Rights which the grant or TUP conveys to you include the right to:

(a) Use the described lands to construct, operate, maintain, and terminate facilities within the right-of-way or TUP area for authorized purposes under the terms and conditions of the grant or TUP;

(b) Allow others to use the land as your agent in the exercise of the rights that the grant or TUP specifies;

(c) Do minor trimming, pruning, and removing of vegetation to maintain the right-of-way or TUP area or facility;

(d) Use common varieties of stone and soil which are necessarily removed during construction of the pipeline, without additional BLM authorization or payment, in constructing the pipeline within the authorized right-of-way or TUP area; and

(e) Assign the grant or TUP to another, provided that you obtain BLM's prior written approval.

Sec. 2885.13 What rights does the United States retain?

The United States retains and may exercise any rights the grant or TUP does not expressly convey to you. These include the United States' right to:

(a) Access the lands covered by the grant or TUP at any time and enter any facility you construct on the right-of-way or TUP area. BLM will give you reasonable notice before it enters any facility on the right-of-way or TUP area;

(b) Require common use of your right-of-way or TUP area, including subsurface and air space, and authorize use of the right-of-way or TUP area for compatible uses. You may not charge for the use of the lands made subject to such additional right-of-way grants;

(c) Retain ownership of the resources of the land covered by the grant or TUP, including timber and vegetative or mineral materials and any other living or non-living resources. You have no right to use these resources, except as noted in Sec. 2885.12 of this subpart;

(d) Determine whether or not your grant is renewable; and

(e) Change the terms and conditions of your grant or TUP as a result of changes in legislation, regulation, or as otherwise necessary to protect public health or safety or the environment.

Sec. 2885.14 What happens if I need a right-of-way wider than 50 feet plus the ground occupied by the pipeline and related facilities?

(a) You may apply to BLM at any time for a right-of-way wider than 50 feet plus the ground occupied by the pipeline and related facilities. In your application you must show that the wider right-of- way is necessary to:

(1) Properly operate and maintain the pipeline after you have constructed it;

(2) Protect the environment; or

(3) Provide for public safety.

(b) BLM will notify you in writing of its finding(s) and its decision on your application for a wider right-of-way. If the decision is adverse to you, you may appeal it under Sec. 2881.10 of this part.

Sec. 2885.15 How will BLM charge me rent?

(a) BLM will charge rent beginning on the first day of the month following the effective date of the grant or TUP through the last day of the month when the grant or TUP terminates. Example: If a grant or TUP becomes effective on January 10 and terminates on September 16, the rental period would be February 1 through September 30, or 8 months.

(b) There are no reductions or waivers of rent for grants or TUPs.

(c) BLM will set or adjust the annual billing periods to coincide with the calendar year by prorating the rent based on 12 months.

(d) If you disagree with the rent that BLM charges, you may appeal the decision under Sec. 2881.10 of this part.

Sec. 2885.16 When do I pay rent?

(a) You must pay rent for the initial rental period before BLM issues you a grant or TUP.

(b) You make all other rental payments according to the payment plan described in Sec. 2885.21 of this subpart.

(c) After the first rental payment, all rent is due on January 1 of the first year of each succeeding rental period for the term of your grant.

Sec. 2885.17 What happens if I pay the rent late?

(a) If BLM does not receive the rent payment within 15 calendar days after the rent was due under Sec. 2885.16 of this subpart, BLM will charge you a late payment fee of $25.00 or 10 percent of the rent you owe, whichever is greater, not to exceed $500 per authorization.

(b) If BLM does not receive your rent payment and late payment fee within 30 calendar days after rent was due, BLM may collect other administrative fees provided by statute.

(c) If BLM does not receive your rent, late payment fee, and any administrative fees within 90 calendar days after the rent was due, BLM may terminate your grant under Sec. 2886.17 of this part and you may not remove any facility or equipment without BLM's written permission. The rent due, late payment fees, and any administrative fees remain a debt that you owe to the United States.

(d) If you pay the rent, late payment fees, and any administrative fees after BLM has terminated the grant, BLM does not automatically reinstate the grant. You must file a new application with BLM. BLM will consider the history of your failure to timely pay rent in deciding whether to issue you a new grant.

(e) You may appeal any adverse decision BLM takes against your grant or TUP under Sec. 2881.10 of this part.

Sec. 2885.18 When must I make estimated rent payments to BLM?

To expedite the processing of your application for a grant or TUP, BLM may estimate rent payments and require you to pay that amount when it issues the grant or TUP. The rent amount may change once BLM determines the actual rent of the grant or TUP. BLM will credit you any rental overpayment, and you are liable for any underpayment. This section does not apply to rent payments made under the rent schedule in this part.

Sec. 2885.19 What is the rent for a linear right-of-way?

(a) Except as noted in paragraph (b) of this section, BLM will use the Per Acre Rent Schedule at Sec. 2806.20(b) of this chapter to calculate the rent. The Per Acre Rent Schedule is updated annually in accordance with Sec. 2806.21 of this chapter.

(b) BLM may determine your rent using the methods described in Sec. 2806.50 of this chapter, rather than by using the rent schedule cited in paragraph (a) of this section if the rent determined by comparable commercial practices or an appraisal would be 10 or more times the rent from the schedule.

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(c) Once you are on a rent schedule, BLM will not remove you from it, unless:

(1) The BLM State Director decides to remove you from the schedule under paragraph (b) of this section; or

(2) You file an application to amend your grant.

(d) You may obtain the current linear right-of-way rent schedule from any BLM state or field office or by writing: Director, BLM, 1849 C St., NW., Mail Stop 1000 LS, Washington, DC 20240. BLM also posts the current rent schedule on the BLM Homepage on the Internet at http://www.blm.gov .

Sec. 2885.20 How will BLM calculate my rent for linear rights-of-way the schedule covers?

(a) BLM calculates your rent by multiplying the rent per acre for the appropriate category of use and county zone price from the current schedule by the number of acres in the right-of-way or TUP area that fall in those categories and multiplying the result by the number of years in the rental period.

(b) If BLM has not previously used the rent schedule to calculate your rent, we may do so after giving you reasonable written notice.

Sec. 2885.21 How must I make rent payments for my grant or TUP?

(a) For TUPs you must make a one-time nonrefundable payment for the term of the TUP. For grants, you must make either nonrefundable annual payments or nonrefundable payments for more than 1 year, as follows:

(1) One-time payments. You may pay in advance the required rent amount for the entire term of the grant.

(2) If you choose not to make a one-time payment, you must pay according to one of the following methods, as applicable:

(i) Payments by individuals. If your annual rent is $100 or less, you must pay at 10-year intervals not to exceed the term of the grant. If your annual rent is greater than $100, you may pay annually or at multi-year intervals that you may choose.

(ii) Payments by all others. You must pay rent in advance at ten- year intervals not to exceed the term of the grant.

(b) BLM considers the first partial calendar year in the rent payment period to be the first year of the rental payment term. BLM prorates the first year rental amount based on the number of months left in the calendar year after the effective date of the grant.

Sec. 2885.22 How will BLM calculate rent for communication uses ancillary to a linear grant, TUP, or other use authorization?

When a communication use is ancillary to, and authorized by BLM under, a grant or TUP for a linear use, or some other type of authorization (e.g., a mineral lease or sundry notice), BLM will determine the rent using the linear rent schedule (see Sec. 2885.19 of this subpart) or rent scheme associated with the other authorization, and not the communication use rent schedule (see Sec. 2806.30 of this chapter).

Sec. 2885.23 If I hold a grant or TUP, what monitoring fees must I pay?

(a) Monitoring fees. Subject to Sec. 2886.11 of this part, you must pay a fee to BLM for any costs the Federal Government incurs in monitoring the construction, operation, maintenance, and termination of the pipeline and protection and rehabilitation of the affected Federal lands your grant or TUP covers. BLM categorizes the monitoring fees based on the estimated number of work hours necessary to monitor your grant or TUP. Category 1 through 4 monitoring fees are one-time fees and are not refundable. The work hours and fees for 2005 are as follows:

2005 Monitoring Fee Schedule

Monitoring fee as of June 21, 2005. To be Federal work hours adjusted annually for changes in the IPD-GDP. Monitoring category

involved

See paragraph (b) of this section for update information

(1) Applications for new grants and Estimated Federal work $97. TUPs, assignments, renewals, and hours are > 1 8 24 36 50.. amendments to existing grants and TUPs.

(b) Updating the schedule. BLM will revise paragraph (a) of this section annually to update Category 1 through 4 monitoring fees in the manner described at Sec. 2884.12(c) of this part. BLM will update Category 5 monitoring fees as specified in the Master Agreement. The monitoring cost schedule is available from any BLM state or field office or by writing: Director, Bureau of Land Management, 1849 C St., NW., Mail Stop 1000LS, Washington, DC 20240. BLM also posts the current schedule on the BLM Homepage on the Internet at http://www.blm.gov.

Sec. 2885.24 When do I pay monitoring fees?

(a) Monitoring Categories 1 through 4. Unless BLM otherwise directs, you must pay monitoring fees when you submit to BLM your written acceptance of the terms and conditions of the grant or TUP.

(b) Monitoring Category 5. You must pay the monitoring fees as specified in the Master Agreement. BLM will not issue your grant or TUP until it receives the required payment.

(c) Monitoring Category 6. BLM may periodically estimate the costs of monitoring your use of the grant or TUP. BLM will include this fee in the costs associated with processing fees described at Sec. 2884.12 of this part. If BLM has underestimated the monitoring costs, we will notify you of the shortfall. If your payments exceed the actual costs that Federal employees incurred for monitoring, BLM will either reimburse you the difference, or adjust the next billing to reflect the overpayment. Unless BLM gives you written authorization, you may not offset or deduct the overpayment from your payments.

(d) Monitoring Categories 1-4 and 6. If you disagree with the category BLM has determined for your application,

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you may appeal the decision under Sec. 2881.10 of this part.

Subpart 2886--Operations on MLA Grants and TUPs

Sec. 2886.10 When can I start activities under my grant or TUP?

(a) When you can start depends on the terms of your grant or TUP. You can start activities when you receive the grant or TUP you and BLM signed, unless the grant or TUP includes a requirement for BLM to provide a written Notice to Proceed. If your grant or TUP contains a Notice to Proceed requirement, you may not initiate construction, operation, maintenance, or termination until BLM issues you a Notice to Proceed.

(b) Before you begin operating your pipeline or related facility authorized by a grant or TUP, you must certify in writing to BLM that the pipeline system:

(1) Has been constructed and tested according to the terms of the grant or TUP; and

(2) Is in compliance with all required plans, specifications, and Federal and state laws and regulations.

Sec. 2886.11 Who regulates activities within my right-of-way or TUP area?

After BLM has issued the grant or TUP, the head of the agency having administrative jurisdiction over the Federal lands involved will regulate your grant or TUP activities in conformance with the Act, appropriate regulations, and the terms and conditions of the grant or TUP. BLM and the other agency head may reach another agreement under 30 U.S.C. 185(c).

Sec. 2886.12 When must I contact BLM during operations?

You must contact BLM:

(a) At the times specified in your grant or TUP;

(b) When your use requires a substantial deviation from the grant or TUP. You must obtain BLM's approval before you begin any activity that is a substantial deviation;

(c) When there is a change affecting your application, grant, or TUP including, but not limited to changes in:

(1) Mailing address;

(2) Partners;

(3) Financial conditions; or

(4) Business or corporate status; and

(d) When BLM requests it, such as to update information or confirm that information you submitted before is accurate.

Sec. 2886.13 If I hold a grant or TUP, for what am I liable?

(a) If you hold a grant or TUP, you are liable to the United States and to third parties for any damage or injury they incur in connection with your use and occupancy of the right-of-way or TUP area.

(b) You are strictly liable for any activity or facility associated with your right-of-way or TUP area which BLM determines presents a foreseeable hazard or risk of damage or injury to the United States. BLM will specify in the grant or TUP any activity or facility posing such hazard or risk, and the financial limitations on damages commensurate with such hazard or risk.

(1) BLM will not impose strict liability for damage or injury resulting primarily from an act of war or the negligence of the United States, except as otherwise provided by law.

(2) As used in this section, strict liability extends to costs incurred by the Federal government to control or abate conditions, such as fire or oil spills, which threaten life, property, or the environment, even if the threat occurs to areas that are not under Federal jurisdiction. This liability is separate and apart from liability under other provisions of law.

(3) You are strictly liable to the United States for damage or injury up to $2 million for any one incident. BLM will update this amount annually to adjust for changes in the Consumer Price Index for All Urban Consumers, U.S. City Average (CPI-U) as of July of each year (difference in CPI-U from July of one year to July of the following year), rounded to the nearest $1,000. This financial limitation does not apply to the release or discharge of hazardous substances on or near the grant or TUP area, or where liability is otherwise not subject to this financial limitation under applicable law.

(4) BLM will determine your liability for any amount in excess of the $2 million strict liability limitation (as adjusted) through the ordinary rules of negligence.

(5) The rules of subrogation apply in cases where a third party caused the damage or injury.

(c) If you cannot satisfy claims for injury or damage, all owners of any interests in, and all affiliates or subsidiaries of any holder of, a grant or TUP, except for corporate stockholders, are jointly and severally liable to the United States.

(d) If BLM issues a grant or TUP to more than one holder, each is jointly and severally liable.

(e) By accepting the grant or TUP, you agree to fully indemnify or hold the United States harmless for liability, damage, or claims arising in connection with your use and occupancy of the right-of-way or TUP area.

(f) We address liability of state, tribal, and local governments in Sec. 2886.14 of this subpart.

(g) The provisions of this section do not limit or exclude other remedies.

Sec. 2886.14 As grant or TUP holders, what liabilities do state, tribal, and local governments have?

(a) If you are a state, tribal, or local government or its agency or instrumentality, you are liable to the fullest extent law allows at the time that BLM issues your grant or TUP. If you do not have the legal power to assume full liability, you must repair damages or make restitution to the fullest extent of your powers.

(b) BLM may require you to provide a bond, insurance, or other acceptable security to:

(1) Protect the liability exposure of the United States to claims by third parties arising out of your use and occupancy of the right-of- way or TUP area;

(2) Cover any losses, damages, or injury to human health, the environment, and property incurred in connection with your use and occupancy of the right-of-way or TUP area; and

(3) Cover any damages or injuries resulting from the release or discharge of hazardous materials incurred in connection with your use and occupancy of the right-of-way or TUP area.

(c) Based on your record of compliance and changes in risk and conditions, BLM may require you to increase or decrease the amount of your bond, insurance, or security.

(d) The provisions of this section do not limit or exclude other remedies.

Sec. 2886.15 How is grant or TUP administration affected if the BLM land my grant or TUP encumbers is transferred to another Federal agency or out of Federal ownership?

(a) If there is a proposal to transfer the BLM land your grant or TUP encumbers to another Federal agency, BLM may, after reasonable notice to you, transfer administration of your grant or TUP, for the lands BLM formerly administered, to another Federal agency, unless doing so would diminish your rights. If BLM determines your rights would be diminished by such a transfer, BLM can still transfer the land, but retain administration of your grant or TUP under existing terms and conditions.

(b) If there is a proposal to transfer the BLM land your grant or TUP encumbers out of Federal ownership, BLM may, after reasonable notice to you and in conformance with existing policies and procedures:

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(1) Transfer the land subject to your grant or TUP. In this case, administration of your grant or TUP, for the lands BLM formerly administered, is transferred to the new owner of the land;

(2) Transfer the land, but BLM retains administration of your grant or TUP; or

(3) Reserve to the United States the land your grant or TUP encumbers, and BLM retains administration of your grant or TUP.

(c) BLM or, if BLM no longer administers the land, the new land owner may negotiate new grant or TUP terms and conditions with you.

Sec. 2886.16 Under what conditions may BLM order an immediate temporary suspension of my activities?

(a) Subject to Sec. 2886.11, BLM can order an immediate temporary suspension of grant or TUP activities within the right-of-way or TUP area to protect public health or safety or the environment. BLM can require you to stop your activities before holding an administrative proceeding on the matter and may order immediate remedial action.

(b) BLM may issue the immediate temporary suspension order orally or in writing to you, your contractor or subcontractor, or to any representative, agent, or employee representing you or conducting the activity. BLM may take this action whether or not any action is being or has been taken by other Federal or state agencies. When you receive the order, you must stop the activity immediately. BLM will, as soon as practical, confirm an oral order by sending or hand delivering to you or your agent at your address a written suspension order explaining the reasons for it.

(c) You may file a written request for permission to resume activities at any time after BLM issues the order. In the request, give the facts supporting your request and the reasons you believe that BLM should lift the order. BLM must grant or deny your request within 5 business days after receiving it. If BLM does not respond within 5 business days, BLM has denied your request. You may appeal the denial under Sec. 2881.10 of this part.

(d) The immediate temporary suspension order is effective until you receive BLM's written notice to proceed with your activities.

Sec. 2886.17 Under what conditions may BLM suspend or terminate my grant or TUP?

(a) Subject to Sec. 2886.11, BLM may suspend or terminate your grant if you do not comply with applicable laws and regulations or any terms, conditions, or stipulations of the grant, or if you abandon the right-of-way.

(b) Subject to Sec. 2886.11, BLM may suspend or terminate your TUP if you do not comply with applicable laws and regulations or any terms, conditions, or stipulations of the TUP, or if you abandon the TUP area.

(c) A grant or TUP also terminates when:

(1) The grant or TUP contains a term or condition that has been met that requires the grant or TUP to terminate;

(2) BLM consents in writing to your request to terminate the grant or TUP; or

(3) It is required by law to terminate.

(d) Your failure to use your right-of-way for its authorized purpose for any continuous 2-year period creates a presumption of abandonment. BLM will notify you in writing of this presumption. You may rebut the presumption of abandonment by proving that you used the right-of-way or that your failure to use the right-of-way was due to circumstances beyond your control, such as acts of God, war, or casualties not attributable to you.

(e) You may appeal a decision under this section under Sec. 2881.10 of this part.

Sec. 2886.18 How will I know that BLM intends to suspend or terminate my grant or TUP?

(a) Grants. When BLM determines that it will suspend or terminate your grant under Sec. 2886.17 of this subpart, it will send you a written notice of this determination. The determination will provide you a reasonable opportunity to correct the violation, start your use, or resume your use of the right-of-way, as appropriate. In the notice BLM will state the date by which you must correct the violation or start or resume use of the right-of-way.

(1) If you have not corrected the violation or started or resumed use of the right-of-way by the date specified in the notice, BLM will refer the matter to the Office of Hearings and Appeals. An ALJ in the Office of Hearings and Appeals will provide an appropriate administrative proceeding under 5 U.S.C. 554 and determine whether grounds for suspension or termination exist. No administrative proceeding is required where the grant by its terms provides that it terminates on the occurrence of a fixed or agreed upon condition, event, or time.

(2) BLM will suspend or terminate the grant if the ALJ determines that grounds exist for suspension or termination and the suspension or termination is justified.

(b) TUPs. When BLM determines that it will suspend or terminate your TUP, it will send you a written notice and provide you a reasonable opportunity to correct the violation or start or resume use of the TUP area. The notice will also provide you information on how to file a written request for reconsideration.

(1) You may file a written request with the BLM office that issued the notice, asking for reconsideration of the determination to suspend or terminate your TUP. BLM must receive this request within 10 business days after you receive the notice.

(2) BLM will provide you with a written decision within 20 business days after receiving your request for reconsideration. The decision will include a finding of fact made by the next higher level of authority than that who made the suspension or termination determination. The decision will also inform you whether BLM suspended or terminated your TUP or cancelled the notice made under paragraph (b) of this section.

(3) If the decision is adverse to you, you may appeal it under Sec. 2881.10 of this part.

Sec. 2886.19 When my grant or TUP terminates, what happens to any facilities on it?

(a) Subject to Sec. 2886.11, after your grant or TUP terminates, you must remove any facilities within the right-of-way or TUP area within a reasonable time, as determined by BLM, unless BLM instructs you otherwise in writing, or termination is due to non-payment of rent (see Sec. 2885.17(c) of this part).

(b) After removing the facilities, you must remediate and restore the right-of-way or TUP area to a condition satisfactory to BLM, including the removal and clean-up of any hazardous materials.

(c) If you do not remove all facilities within a reasonable period, as determined by BLM, BLM may declare them to be the property of the United States. However, you are still liable for the costs of removing them and for remediating and restoring the right-of-way or TUP area.

Subpart 2887--Amending, Assigning, or Renewing MLA Grants and TUPs

Sec. 2887.10 When must I amend my application, seek an amendment of my grant or TUP, or obtain a new grant or TUP?

(a) You must amend your application or seek an amendment of your grant or TUP when there is a proposed substantial deviation in location or use.

(b) The requirements to amend an application or a grant or TUP are the same as those for a new application, including paying processing and monitoring fees and rent according to

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Sec. Sec. 2884.12, 2885.23, 2885.19, and 2886.11 of this part.

(c) Any activity not authorized by your grant or TUP may subject you to prosecution under applicable law and to trespass charges under subpart 2888 of this part.

(d) Notwithstanding paragraph (a) of this section, if you hold a pipeline grant issued before November 16, 1973, and there is a proposed substantial deviation in location or use of the right-of-way, you must apply for a new grant.

(e) BLM may ratify or confirm a grant that was issued before November 16, 1973, if we can modify the grant to comply with the Act and these regulations. BLM and you must jointly agree to any modification of a grant made under this paragraph.

Sec. 2887.11 May I assign my grant or TUP?

(a) With BLM's approval, you may assign, in whole or in part, any right or interest in a grant or TUP.

(b) In order to assign a grant or TUP, the proposed assignee, subject to Sec. 2886.11 of this part, must file an application and satisfy the same procedures and standards as for a new grant or TUP, including paying processing fees (see Sec. 2884.12 of this part).

(c) The assignment application must also include:

(1) Documentation that the assignor agrees to the assignment; and

(2) A signed statement that the proposed assignee agrees to comply with and to be bound by the terms and conditions of the grant or TUP that is being assigned, and all applicable laws and regulations.

(d) BLM will not recognize an assignment until we approve it in writing. BLM will approve the assignment if doing so is in the public interest. BLM may modify the grant or TUP or add bonding and other requirements, including terms and conditions, to the grant or TUP when approving the assignment. If BLM approves the assignment, the benefits and liabilities of the grant or TUP apply to the new grant or TUP holder.

(e) The processing time and conditions described at Sec. 2884.21 of this part apply to assignment applications.

Sec. 2887.12 How do I renew my grant?

(a) You must apply to BLM to renew the grant at least 120 calendar days before your grant expires. BLM will renew the grant if the pipeline is being operated and maintained in accordance with the grant, these regulations, and the Act. If your grant has expired or terminated, you must apply for a new grant under subpart 2884 of this part.

(b) BLM may modify the terms and conditions of the grant at the time of renewal, and you must pay the processing fees (see Sec. 2884.12 of this part) in advance.

(c) The time and conditions for processing applications for rights- of-way, as described at Sec. 2884.21 of this part, apply to applications for renewals.

Subpart 2888--Trespass

Sec. 2888.10 What is trespass?

(a) Trespass is using, occupying, or developing the public lands or their resources without a required authorization or in a way that is beyond the scope and terms and conditions of your authorization. Trespass is a prohibited act.

(b) Trespass includes acts or omissions causing unnecessary or undue degradation to the public lands or their resources. In determining whether such degradation is occurring, BLM may consider the effects of the activity on resources and land uses outside the area of the activity.

(c) BLM will administer trespass actions for grants and TUPs as set forth in Sec. Sec. 2808.10(c), and 2808.11 of this chapter, except that the rental exemption provisions of part 2800 do not apply to grants issued under this part.

(d) Other Federal agencies will address trespass on non-BLM lands under their respective laws and regulations.

Sec. 2888.11 May I receive a grant if I am or have been in trespass?

Until you satisfy your liability for a trespass, BLM will not process any applications you have pending for any activity on BLM- administered lands. A history of trespass will not necessarily disqualify you from receiving a grant. In order to correct a trespass, you must apply under the procedures described at subpart 2884 of this part. BLM will process your application as if it were a new use. Prior unauthorized use does not create a preference for receiving a grant.

PART 2920--LEASES, PERMITS, AND EASEMENTS

0 5. The authority citation for part 2920 continues to read as follows:

Authority: 43 U.S.C. 1740.

0 6. Amend Sec. 2920.6 by revising the second sentence of paragraph (b) and the third sentence of paragraph (c) as follows:

Sec. 2920.6 Reimbursement of costs.

* * * * *

(b) * * * The reimbursement of costs shall be in accordance with the provisions of Sec. Sec. 2804.14 and 2805.16 of this chapter, except that any permit whose total rental is less than $250 shall be exempt from reimbursement of costs requirements.

(c) * * * This payment shall be determined in accordance with the provisions of Sec. Sec. 2804.14 and 2805.16 of this chapter. * * * * *

PART 9230--TRESPASS

0 7. Revise the authority citation for part 9230 to read as follows:

Authority: R.S. 2478 and 43 U.S.C. 1740.

0 8. Amend Sec. 9239.7-1 by revising the introductory paragraph to read as follows:

Sec. 9239.7-1 Public lands.

The filing of an application under part 2800, 2810, or 2880, of this chapter does not authorize the applicant to use or occupy the public lands for right-of-way purposes, except as provided by the definition of ``Casual use'' in Sec. 2801.5(b) and by Sec. Sec. 2804.29 and 2884.25 of this chapter, until written authorization has been issued by the authorized officer. Any unauthorized occupancy or use of public lands or improvements for right-of-way purposes constitutes a trespass against the United States for which the trespasser is liable for costs, damages, and penalties as provided in subpart 2808 and Sec. Sec. 2812.1-3 and 2888.10 of this chapter. No new permit, license, authorization, or grant of any kind shall be issued to a trespasser until: * * * * *

PART 9260--LAW ENFORCEMENT--CRIMINAL

0 9. Revise the authority citation for part 9260 to read as follows:

Authority: 16 U.S.C. 4601-6a, 16 U.S.C. 670h, 16 U.S.C. 1246(i), 16 U.S.C. 1336, 43 U.S.C. 315a, 43 U.S.C. 1733(a), 43 U.S.C. 1740, and Executive Order 11644, 37 FR 2877, 3 CFR, 1971-1975 Comp., p. 666.

0 10. Revise Sec. 9262.1 to read as follows:

9262.1 Penalties for unauthorized use, occupancy, or development of public lands.

Under section 303(a) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733(a)) any person who knowingly and willfully violates the provisions of Sec. Sec. 2808.10(a), 2812.1-3, 2888.10, or 2920.1-2(a) of this chapter, by using public lands without the requisite authorization, may be tried before a United States magistrate and fined no more than $1,000 or

[[Page 21091]]

imprisoned for no more than 12 months, or both.

[FR Doc. 05-7501 Filed 4-21-05; 8:45 am]

BILLING CODE 4310-84-P

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