Rights-of-Way, Principles and Procedures; Rights-of-Way Under the Federal Land Policy and Management Act and the Mineral Leasing Act, 20970-21091 [05-7501]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Land Management
• Land Management Bureau

[Federal Register Volume 70, Number 77 (Friday, April 22, 2005)]
[Rules and Regulations]
[Pages 20970-21091]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-7501]



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Part II





Department of the Interior





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Bureau of Land Management



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43 CFR Part 2800, et al.



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

Federal Register / Vol. 70, No. 77 / Friday, April 22, 2005 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

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

[WO 350 05 1430 PN]
RIN 1004-AC74


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

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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

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

FOR FURTHER INFORMATION CONTACT: Bil Weigand at (208) 373-3862, or Ian 
Senio at (202) 452-5049, or write to Director (630), Bureau of Land 
Management, Eastern States Office, 7450 Boston Boulevard, Springfield, 
Virginia 22153, Attention: RIN 1004-AC 74.
    Persons who use a telecommunications device for the deaf may 
contact these persons through the Federal Information Relay Service at 
1-800-877-8339 24 hours a day, seven days a week.

SUPPLEMENTARY INFORMATION:

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

I. Background

    BLM published the proposed rule in the Federal Register on June 15, 
1999 (see 64 FR 32106) for a 120-day comment period ending on October 
13, 1999. As a result of public requests for extensions of the comment 
period, on October 13, 1999, we extended the public comment period for 
30 days ending on November 12, 1999. We received 63 comment letters on 
the proposed rule. We address public comments in the section-by-section 
discussion of this preamble.
    In these regulations we use the terms ``previous regulations'' and 
``final regulations.'' ``Previous regulations'' refers to the 
regulations in effect prior to June 21, 2005. ``Final regulations'' 
means the regulations in this final rule. This final rule will replace 
the regulations in parts 2800 and 2880 of the October 2004 edition of 
Title 43 of the Code of Federal Regulations.

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

    Each year, thousands of individuals and companies apply to BLM to 
obtain a right-of-way grant on public lands. A right-of-way grant is an 
authorization to use a specific piece of public land for a certain 
project, such as roads, pipelines, transmission lines, and 
communication sites. The grant authorizes a specific use of the land 
for a specific period of time. The term ``grant'' is defined in the 
definitions sections in both parts of this rule. The definition of 
``grant'' in part 2800 applies to grants authorized by Title V of 
FLPMA, 43 U.S.C. 1761, and the definition in part 2880 applies to 
grants authorized by the MLA at 30 U.S.C. 185. Generally, BLM issues a 
right-of-way grant for a term commensurate with the life of the 
project. Typically, BLM issues grants with 30-year terms, and most can 
be renewed. This final rule covers FLPMA grants for rights-of-way that 
cross public lands and MLA grants for rights-of-way that cross Federal 
lands. We cover general provisions for right-of-way grants in subparts 
2801 and 2881 of this final rule.
    BLM places a high priority on working with applicants on proposed 
rights-of-way to provide for the protection of resource values and to 
process applications timely. Careful advance planning with BLM 
personnel is strongly encouraged. If we know about your plans early, we 
can work with you to tailor your project to avoid many problems and 
costly delays later in the process.
    If you are not familiar with our right-of-way application process 
or local BLM jurisdictions, the best place to start is by contacting a 
BLM State Office listed in our regulations at 43 CFR 1821.10. Please 
note that each state office oversees a number of field offices. 
Depending on your project, you may be working primarily with personnel 
at a BLM field office.
    As a general rule, you need a right-of-way grant whenever you plan 
to build a right-of-way facility on public lands. Some examples of land 
uses which require a right-of-way grant include: transmission lines, 
communication sites, roads, highways, trails, telephone lines, canals, 
flumes, pipelines, and reservoirs.
    You do not need a right-of-way grant for ``casual use'' activities. 
Examples of casual use include driving vehicles over existing roads, 
sampling, surveying, marking routes, collecting data to prepare an 
application for a right-of-way, and performing certain activities that 
ordinarily result in no, or negligible, disturbance of the public lands 
or resources. ``Casual use'' is defined in sections 2801.5 and 2881.5 
and is addressed in sections 2804.29 and 2884.25 of this final rule. We 
encourage you to contact BLM and discuss your planned activity before 
assuming your use is casual. BLM can then make a judgment based on your 
particular activity.

Steps In Applying for a Right-of-Way

    (A) Contact the BLM office having management responsibility for the 
land where you need the right-of-way.
    (B) Arrange a preapplication meeting with the field office manager 
or appropriate staff. During this meeting, participants will jointly 
review the application requirements and Standard Form (SF) 299, 
Application for Transportation and Utility Systems and Facilities on 
Federal Lands, to determine what information BLM needs. If you contact 
us ahead of time to set up the meeting, we can often arrange to hold 
the meeting at the site of your proposed use.
    (C) When you have all the information, bring or mail the 
application, along with the nonrefundable application processing fee, 
to the appropriate BLM office.
    This final rule covers the application process for FLPMA right-of-
way grants in subparts 2803 and 2804, and the application process for 
MLA grants in subparts 2883 and 2884.

Preapplication Meeting

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

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you and BLM. The meeting provides the opportunity for you to fully 
discuss and describe your proposal in detail and provides an 
opportunity for BLM to fully explain processing requirements. The 
preapplication meeting may also cover fees, safety, work schedules, and 
other items. This meeting has the potential to save both you and BLM 
time and expense. For example, in FLPMA, Congress directed that 
``rights-of-way in common'' (common use of a right-of-way area by 
multiple grant holders) be required, to the extent practical, in order 
to minimize adverse environmental impacts and the proliferation of 
separate rights-of-way. This is accomplished through a system of 
designated right-of-way corridors and co-locating communication uses on 
existing towers and within multi-occupancy buildings when feasible. 
During the preapplication meeting, BLM staff may examine the proposed 
right-of-way use to see if it would fit in an existing corridor or in 
an existing communication facility. Sections 2804.10 and 2884.10 of 
this final rule address preapplication meetings.
    Application forms are available at every BLM office and on the 
Internet at www.blm.gov/nhp/what/lands/realty/forms/299/. 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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II. Final Rule as Adopted and Response to Comment

Part 2800--Rights-of-Way Under FLPMA

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

Subpart 2801--General Information

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

    (A) An explanation of the objective of BLM's right-of-way program;
    (B) Acronyms and definitions used in the regulations; and
    (C) Information about which grants the regulations affect and which 
they do not.

General Comments

    Several commenters said that there is no up-to-date data to support 
the need for increases in existing right-of-way fees or the creation of 
new ones, and that BLM should prepare a baseline report and annual 
reports thereafter to document the needed increases. They also said 
that there have been significant technology increases, as well as staff 
reorganizations, that have improved efficiencies that should reduce 
costs. For a discussion of the justification for increasing cost 
recovery fees, please see the proposed rule at 64 FR 32107 through 
32111.
    In 1995, BLM program experts analyzed a cross section of right-of-
way cases. This analysis showed that the cost of processing right-of-
way cases, including labor costs, had increased since 1986 at 
approximately the same rate as the Implicit Price Deflator-Gross 
Domestic Product (IPD-GDP). Therefore, the final rule adjusts costs 
upward based on the IPD-GDP and allows for automatic adjustments based 
on this indicator. Technological improvements and staff reorganizations 
that have taken place recently may have yielded improved right-of-way 
processes in many BLM offices. Since the processing categories in this 
final rule are based on the time (hours) required to process an 
application, this final rule takes into account increases in 
efficiencies. We note, however, that the number of processing hours may 
be increased by the increasingly complex resource issues BLM encounters 
when processing grant applications which add to the amount of 
coordination required to process applications. Increased public 
involvement in the National Environmental Policy Act (NEPA) process 
adds extra levels of analysis and review. Comments relating to BLM 
creating new fees are misdirected since BLM is not proposing any new 
fees in this rule (see previous subparts 2808 and 2883 and previous 
sections 2803.1-2 and 2883.1-2).
    We suggest that commenters who requested reports justifying the fee 
increases refer to the preamble discussion in the proposed rule (64 FR 
32107 and 32108). A 1995 audit of BLM's cost recovery efforts by the 
Office of Inspector General (OIG) for the Department of the Interior 
found BLM was not recovering all the costs of processing applications 
and recommended that BLM revise its regulations to recover all 
applicable costs. The audit estimated that BLM incurred about $640,000 
in additional expense in excess of the fees collected in 1993. (This 
shortfall comes to $213 per application, or $800,000 and $336 
respectively when adjusted for the change in IPD-GDP.) BLM is following 
the OIG's suggestions by increasing the costs for processing and 
monitoring right-of-way applications and providing for future 
adjustments to the costs based on economic indicators to reflect the 
costs of inflation. BLM also prepares yearly reports, some to meet 
requirements imposed by Congress in the Mineral Leasing Act, that 
discuss the relative numbers and types of cases that we process each 
year. BLM publishes this data annually in a statistical report that you 
can find on the Internet at https://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

[[Page 20974]]

requires (unless otherwise prohibited) that a charge, which recovers 
the bureau's costs, be imposed for services which provide special 
benefits or privileges above and beyond those which accrue to the 
public at large.
    A particularly relevant court ruling is Mississippi Power & Light 
Co. v. United States Nuclear Regulatory Commission, 601 F.2d 223 (5th 
Cir. 1979), cert. denied, 444 U.S. 102 (1980). The court upheld a 
Nuclear Regulatory Commission (NRC) licensing fee schedule. The court 
rejected the petitioners' argument that the work of the NRC benefitted 
the general public solely and that the conferral of a license or permit 
does not bestow upon the petitioners any special benefit whatsoever. 
The court concluded: ``A license from the NRC is an absolute 
prerequisite to operating a nuclear facility, and as such, is a benefit 
`not shared by other members of society.' '' Likewise, a right-of-way 
grant is a benefit not shared by other members of society. Therefore, 
BLM charges applicants for processing their applications for grants 
because they are seeking a benefit not shared by other members of 
society.
    The commenters' contention that BLM should not charge right-of-way 
processing fees to the oil and gas industry because the industry 
already pays bonuses, rentals, and royalties misses the point about 
processing fees. Congress intends for agencies to be reimbursed for 
processing costs when the agency action benefits an identifiable party. 
BLM's processing of right-of-way applications benefits the applicant, 
who will use the right-of-way to aid its operation. Bonuses, rentals, 
and royalties are related to the use of the resource and are unrelated 
to agency processing costs. Congress has provided for agencies to 
collect both for the use of the resource and for the processing of 
applications and other documents.
    Some of these commenters further suggested that any regulations 
pertaining to rights-of-way should be combined with existing oil and 
gas regulations, onshore orders, and notices to lessees and that a 
separate rulemaking is duplicative. We have decided not to combine this 
rule with other oil and gas rules. We believe that since both the FLPMA 
and MLA right-of-way programs are administered under BLM's lands and 
realty program and because of the many similarities between the various 
lands and realty regulations, both as a matter of policy and a matter 
of process, BLM's right-of-way regulations should not be located in the 
same part in 43 Code of Federal Regulations as BLM's oil and gas 
regulations.
    One commenter suggested that BLM should consider the benefits the 
public receives from industry upgrading access roads and performing 
special studies that benefit the public. Previous regulations allowed 
BLM to reduce cost recovery fees to reflect both public benefits from 
studies connected with processing an application and special services 
to the public or a program of the Secretary provided by a project (see 
previous sections 2808.5(b)(5) and (6). Like previous regulations, the 
final rule contains provisions for FLPMA right-of-way applicants to pay 
cost recovery fees that reflect the public service or public benefit 
derived from a right-of-way grant or its processing (see final sections 
2804.20 and 2804.21).
    Several commenters said that the proposed automatic fee adjustments 
appear to be a disincentive for future BLM process improvements. We 
disagree with the commenters. The automatic fee adjustment provisions 
in this final rule will not act as a disincentive to continuing our 
process improvement efforts. Even after this rule becomes final, BLM 
will continue to examine ways to improve processes. The automatic fee 
adjustments are intended to increase fees based on an economic 
indicator that reflects yearly increases in the cost of doing business. 
We have included automatic fee adjustments because the cost to BLM of 
going through rulemaking each time fees needed to be adjusted would be 
prohibitive and inefficient. If during periodic review of the fee 
structure we determine that the fees or fee structure need to be 
revised, apart from applying the IPD-GDP, we will propose new 
rulemaking.
    Some commenters said that the fee increases were not legal since 
they were really special use taxes that must be ``approved by Congress 
and signed by the President.'' BLM does not agree with the commenter. 
Clearly, both FLPMA and MLA give BLM authority to collect the 
reasonable or actual costs of processing right-of-way applications (see 
43 U.S.C. 1764(g) and 30 U.S.C. 185(l)). Neither statute imposes a 
limitation on fee increases. Moreover, the Supreme Court has made clear 
that agencies may charge for special benefits to identifiable 
recipients, which is what BLM is doing in this rule. See National Cable 
Television Association v. U.S., 415 U.S. 336, 341 (1973), and Federal 
Power Commission v. New England Power, 415 U.S. 345, 349 (1973).
    One commenter agreed with the proposal to automatically adjust fees 
to keep pace with inflation. This provision remains in the final rule.
    Some commenters thought that the IPD-GDP was not the appropriate 
indicator for automatic increases in fees. They thought that the 
Consumer Price Index would be a better economic indicator to use since, 
due to streamlining, labor costs have decreased since 1987. We 
disagree. As we stated in the proposed rule's preamble (see 64 FR 
32109), we believe that the IPD-GDP is the correct economic indicator 
on which to base these fee adjustments since the IPD-GDP more closely 
reflects the relationship of labor to other costs than do other 
economic indicators and most of BLM's processing and monitoring costs 
are related to labor costs.
    One commenter stated that BLM was attempting to recover costs in 
excess of the shortfalls in cost recovery identified by the OIG in 
1995, and that the new fees would be indexed annually to guarantee 
additional income. Further, commenters said that BLM was only allowed 
to recover reasonable or actual costs. We agree that BLM can only 
charge reasonable or actual costs for processing right-of-way 
applications. Final section 2804.14 of the FLPMA regulations requires 
that you pay the United States the reasonable costs of processing your 
application, and final section 2884.12 of the MLA regulations requires 
that you pay the United States the actual costs of processing your 
application.
    We believe the commenter who stated that BLM was attempting to 
recover more that its shortfall misunderstood the explanation in the 
proposed rule. In 1995, the OIG sampled 75 of the approximately 3,000 
right-of-way cases BLM processed in fiscal year 1993 and determined 
that there was a shortfall in collected processing fees of $16,000 for 
those 75 cases. The total estimated shortfall for the 3,000 cases 
processed was thus at least $640,000 for that one year. The proposed 
rule stated that the maximum fees that possibly could be generated by 
the proposed regulations over and above fees already being collected, 
was approximately $2.7 million annually (see 64 FR 32123). We 
calculated that figure to show that even under the most extreme 
circumstances this rule would not be considered economically 
``significant'' under Executive Order 12866 (which defines 
``significant'' as having an annual economic impact of $100 million or 
more). The $2.7 million figure does not represent anticipated revenue, 
but indicates the outside limit of the economic impact of the proposed 
rule, over and above the fees already being

[[Page 20975]]

collected, if every right-of-way application, including those that were 
exempted or reduced under previous regulations, were placed at the 
highest fee category available. Therefore, the difference between 
$640,000 and $2.7 million does not represent costs in excess of what 
BLM needs to process grant applications. BLM anticipates that this rule 
will, on an annual basis, generate additional revenue from processing 
fees approximately equivalent to the $640,000 shortfall identified by 
the OIG, corrected for inflation by application of the IPD-GDP.
    One commenter said that BLM and the U.S. Forest Service (FS) should 
adopt the same rules, procedures, and regulations to reduce application 
costs and review times. We agree. BLM and the FS are working together 
on parallel regulations to establish procedures that are consistent to 
the extent possible for the collection of right-of-way processing and 
monitoring fees (see 64 FR 66341 for the FS proposed rule).
    A few commenters said that the difference between FLPMA and MLA 
rights-of-way should be pointed out in the final rule since it is 
confusing to the public and BLM. The basic processing steps, fee 
determination process, and conditions for approval involved in both 
types of applications are nearly identical. However, there are some 
differences between the two types of applications and the two parts of 
the rule, most of which result from distinctions in the statutory 
authority for the two types of grants. The major differences between 
the part 2800 and part 2880 regulations are explained in the table and 
general discussion above.
    A few commenters said that instead of the cost recovery fee in the 
proposed rule, BLM should use a ``minimal impact flat fee'' similar to 
that proposed by the FS for flowlines, roads and electric lines being 
installed in a developing field. The FS proposed a ``minimum impact 
category'' in their rule that would cover one-time authorizations for 
the use of forest system lands for events such as recreation events, 
weddings, or bike races or uses where more than 75 people participate 
(see 64 FR 66341, 66344, and 66350). The BLM requested comments on the 
need for such a category. Both agencies decided not to establish a 
``minimal impact category'' in their final rules. Instead, in this 
final rule BLM establishes a new processing and monitoring category for 
all ROW actions where we spend more than one hour but less than eight 
hours processing the application or monitoring the grant. The FS also 
plans to issue a similar final rule.

R.S. 2477

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

Temporary Use Permits

    Several commenters supported the continued use of temporary use 
permits (TUPs). Some commenters from the oil and gas industry said that 
we should not eliminate TUPs for FLPMA rights-of-way since the industry 
needs them for testing and emergency situations. Other commenters said 
that BLM only needs to be able to authorize the additional use of 
public land outside a permanent right-of-way, no matter what you call 
the authorization. We agree with the basic point of the last comment 
and have so provided in this rule. Moreover, BLM believes there is 
little difference between approving the use of public land using short 
term right-of-way grants and approving the use of Federal land with 
TUPs. Both authorizations require:
    (A) The same application procedure;
    (B) Compliance with NEPA and land use plans;
    (C) Preparation of a decision; and
    (D) Execution of an authorizing document.
    BLM can authorize all associated uses with a FLPMA grant, whether 
they are short or long term, and therefore TUPs are not needed. This is 
consistent with the proposed rule (see 64 FR 32118).
    One commenter said that BLM should authorize in a right-of-way 
grant access roads, temporary landing sites, and lay down areas rather 
than in a special use permit since these activities are an integral 
part of the construction operations. We agree and the final rule is 
consistent with this comment. The same commenter said that short-term 
incidental activities, such as those short term construction activities 
that would temporarily require additional width for a right-of-way, or 
a temporary access road should be permitted for a term and with 
stipulations, as a right-of-way, not as a special use, because they are 
tied to a longer term use. We agree with the commenter. Under this 
final rule, we will issue right-of-way grants under FLPMA with an 
appropriate term and stipulations for all authorized uses associated 
with a right-of-way, including short term construction and access 
needs.

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

    This section is new to the final rule and explains it is BLM's 
objective to grant rights-of-way to qualified individuals and business 
or government entities, and to direct and control the use of rights-of-
way on public lands in a manner that:
    (A) Protects the natural resources;
    (B) Prevents unnecessary or undue degradation to public lands;
    (C) Promotes the use of rights-of-way in common; and
    (D) Coordinates, to the fullest extent possible, all BLM actions 
under the regulations with state and local governments, interested 
individuals, and appropriate quasi-public entities.
    We inadvertently left the objectives section out of the proposed 
rule, but this final section is consistent with previous section 
2800.0-2. We added a similar provision to the part 2880 regulations 
discussed later in this preamble.

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

    This section contains the acronyms and defines the terms that are 
used in these regulations. Paragraph (a) is new to the final rule and 
contains acronyms that are frequently used in the final rule. We also 
amended the definitions section in the final rule by adding several 
terms, by deleting unnecessary terms, and by amending the definitions 
of the terms we proposed.
    Two terms not defined in the proposed or final regulations are 
``suspension'' and ``termination.'' We discuss those terms here because 
the public and BLM staff often inappropriately use the terms 
interchangeably. The two terms have very different meanings. 
Suspensions involve immediately curtailing activities and privileges 
authorized under a grant for a specified period of time. Suspensions 
may be ordered to protect public health, safety, or the environment. 
Terminations, on the other hand, involve ending the term of a grant 
because the grant has expired or is required by law to terminate, the 
holder requests and BLM consents to the termination, or the holder has 
not complied with laws, regulations, or any

[[Page 20976]]

terms and conditions of the grant, including abandonment.
    Many comments related to redefining terms used in the proposed rule 
or adding new terms to make the rule easier to understand.
    In the final rule we added a definition of ``actual costs'' to mean 
the financial measure of resources BLM expends in processing and 
monitoring right-of-way grants including direct and indirect costs, 
exclusive of management overhead. We added this definition because 
``actual costs'' is one of the criteria spelled out in FLPMA that BLM 
uses to assess whether costs are reasonable. The term is defined 
similarly to previous section 2800.0-5(o).
    One commenter asked that the final regulation define 
``administrative costs of processing,'' as the phrase was vague and 
subject to interpretation. In the final rule we do not use the phrase 
``administrative cost of processing'' and therefore there is no need to 
define the term.
    The Forest Service recommended revising the definition of ``base 
rent'' to read, in part, as follows:

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

    In the final rule we moved the definition of ``base rent'' from 
proposed section 2806.5 to this section. We also modified the final 
definition to make it easier to understand that when a communication 
site facility manager's or facility owner's scheduled rent is equal to 
the rent for the highest use from the communication use rent schedule, 
the facility manager or facility owner's use determines the base rent. 
When the value of any other use in the communication site facility 
exceeds that of the facility manager or facility owner's use, that 
other use determines the base rent. Although we did not copy the FS 
proposed language exactly, we followed the suggested meaning of the FS 
comment in the final definition.
    In the final rule we amended the definition of ``casual use'' to 
mean ``activities ordinarily resulting in no or negligible disturbance 
of the public lands, resources, or improvements.'' We also replaced the 
example proposed with ``Surveying, marking routes, and collecting data 
to use to prepare grant applications.'' We believe the final rule's 
definition of ``casual use'' is a more accurate and useful description 
because it recognizes that casual use may cause no disturbance and 
because it gives examples that are more useful than that provided in 
the proposed rule.
    In the final rule we moved the definition of ``commercial purpose 
or activity'' from proposed section 2806.5 to this section and modified 
it to make it easier to understand. In the final rule, we use the term 
to describe the situation where a holder attempts to produce a profit 
by allowing the use of its facilities by an additional user. Under 
these circumstances BLM may assess an appropriate rent for such 
commercial activities. The holder's use may not otherwise be subject to 
rent charges under BLM's rental provisions.
    In the final rule we moved the definition of ``communication use 
rent schedule'' from proposed section 2806.5 to this section and 
modified it to make it easier to determine where a use will fit into 
the schedule. The final rule also clearly states that the type of use 
identified on an FCC license does not supersede either the definition 
found in this subpart or the procedures for calculating rent in subpart 
2806. The definitions in this rule are different from those in FCC's 
rules because our reason for defining them is so we can determine the 
correct rent for the use of a right-of-way, whereas the FCC regulations 
define them for entirely different reasons, such as licensing 
requirements. Therefore, our definitions continue to focus on 
determining the type of use. However, there may be circumstances where 
BLM cannot accurately determine the type of communication use and 
therefore cannot determine the proper category in the rent schedule for 
the use. Should this occur, BLM may consult with the FCC to help us 
determine the use, based on our definitions, and therefore determine 
where the use would fit into the communication use rent schedule.
    Several commenters said BLM should change its definition of 
``commercial mobile radio service'' (CMRS) (contained in 
``communication use rent schedule) because it differs significantly 
from the regulatory classifications established by Congress and the 
FCC. They said BLM's definition of CMRS did not identify cellular, 
personal communication service, or enhanced specialized mobile radio 
services as specific types of commercial mobile radio services, but 
instead focused on communication services to individual customers and 
ancillary communication equipment for operating, maintaining, or 
monitoring use. One of the commenters suggested that we use the FCC's 
definition of CMRS. Another commenter said that the definition 
contravened section 6002(b) of the Omnibus Budget Reconciliation Act of 
1993, which mandated that similar mobile services be subject to 
consistent regulatory definition and urged BLM to adopt FCC definitions 
in its final rule. We disagree with the commenters. BLM and the FCC 
have different definitions for the terms because we use the terms for 
different purposes. The FCC issues licenses for different 
classifications of primary uses. BLM defines different types of 
communication uses for rental calculation purposes only.
    In the final rule we moved all communication site related 
definitions from proposed section 2806.5 to this section. For example, 
we moved the definition of ``customer'' from proposed section 2806.5 to 
this section. We also modified the definition to make it clear that:

    (A) BLM includes private or internal communication uses located 
in a holder's facility as customer uses; and
    (B) Customer uses are not included in the amount of rent owed by 
a facility owner, facility manager, or tenant unless the facility 
owner or facility manager is operating the facility for a commercial 
purpose. This more accurately describes how we charge for customer 
uses than the proposal and is consistent with existing policy and 
practice.

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

[[Page 20977]]

    In the final rule we moved the definition of ``facility manager'' 
from proposed section 2806.5 to this section. The final definition 
makes clear that a communication site facility manager does not own or 
operate its own equipment, but leases space to tenants and customers in 
a communication facility. We also moved the ``facility owner'' 
definition from proposed section 2806.5 to this section and reworded it 
to be clear that a ``facility owner'' owns and operates its own 
communication equipment in a facility and may or may not lease space to 
other users in the communication facility. Both definitions are 
consistent with current policy and practice.
    Several commenters said that the definition of ``field 
examination'' should make it clear that the BLM staff person making a 
field trip should look at as many rights-of-way and Applications for 
Permits to Drill as possible in one trip to make the trip as efficient 
as possible. We agree. Combining several field examinations or other 
inspections into one field trip is BLM's routine practice. However, we 
deleted the proposed definition of ``field examination'' from the final 
rule because we no longer use the term and it is not part of the 
criteria for determining a cost recovery category in this final rule. 
For further information, please see the preamble discussion of final 
section 2804.14.
    Several commenters asked what ``reasonable costs'' are and said 
that BLM should be responsible for paying for NEPA and other studies 
since it is our responsibility under the law. We use the phrase 
``reasonable costs'' in sections 2804.14, 2804.20, and 2805.16. The 
final rule defines this phrase in section 2801.5, and final section 
2804.20 lists the factors from FLPMA that BLM will use in its 
determination of the reasonable costs for Processing Category 6 or 
Monitoring Category 6.
    We reworded the definition of ``grant'' to state that a grant is 
any authorization or instrument (e.g., easements, leases, licenses, or 
permits) issued under Title V of FLPMA, and that ``grant'' includes 
those authorizations and instruments BLM and its predecessors issued 
for like purposes prior to the passage of FLPMA under now expired 
authorities. Therefore, the term ``grant'' includes communications use 
leases. We use the term ``lease'' for communication site purposes 
because of the nature of the rights we authorize to the holder of the 
authorization. Communication use leases allow holders to sublease space 
to tenants and customers without first obtaining BLM approval. A 
typical BLM right-of-way grant does not allow holders to sublease.
    We received many comments related to the definition of ``hazardous 
material.'' Many commenters said that the Environmental Protection 
Agency (EPA) has an established definition of ``hazardous substance'' 
and that EPA regulates hazardous substances and BLM therefore need not. 
Some commenters said the definition was overly broad, inconsistent with 
other regulatory authorities and should be deleted. Several commenters 
said that the definitions ``hazardous material,'' ``discharge,'' and 
``release'' should all be deleted from the rule and that the rule is 
expanding BLM's jurisdiction beyond what is required by law. Some 
commenters said the rule changes statutory requirements and regulations 
on hazardous materials. The commenters said the rule should not weaken 
or dilute the Resource Conservation and Recovery Act (RCRA) or the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) or eliminate the exemptions provided the oil and gas industry 
in those statutes. We have not changed these definitions as a result of 
these comments. The final rule includes these definitions to make clear 
the regulations addressing use and management of hazardous materials on 
Federal and public lands. As noted in the proposed rule's preamble (see 
64 FR 32118), right-of-way holders use, store, and transport various 
hazardous materials on and across public lands. BLM seeks to ensure 
that those using BLM lands are responsible for damage to health, 
property, and the environment incurred while using and occupying a 
right-of-way and that they understand which materials we consider to be 
hazardous.
    The terms ``discharge'' and ``release'' take their meanings from 
the Clean Water Act (33 U.S.C. 1321(a)(2)) and CERCLA (42 U.S.C. 
9601(22)), respectively. The terms broadly address the range of 
circumstances under which, during the use of a right-of-way, a chemical 
substance may enter the environment.
    The term ``hazardous material'' is also intentionally broad and 
includes, among others:
    (A) Hazardous substances as defined by CERCLA (see 42 U.S.C. 
9601(14);
    (B) Regulated substances managed in tanks as defined by the 
Resource Conservation and Recovery Act (RCRA) (see 42 U.S.C. 6991 et 
seq.);
    (C) Oil, as defined by the Oil Pollution Act (see 33 U.S.C. 
2701(23)), and the Clean Water Act (see 33 U.S.C. 1321(a)); and
    (D) Other substances defined and regulated as ``hazardous'' under 
applicable Federal, state, tribal, or local law.
    We defined ``hazardous material'' by cross-referencing other laws 
to ensure that all pollutants, contaminants, and hazardous substances, 
including oil and petroleum products, fall within the definition. 
Although some commenters stated that BLM should specify hazardous 
substances of concern, and should not incorporate into its rule 
definitions taken from other laws, such an approach would be 
impracticable in light of the large number and types of hazardous 
substances that can cause harm to health, property, or the environment. 
In addition, numerous laws, including CERCLA, define ``hazardous 
substance'' by incorporating definitions found in other laws. (See 
section 101(14) of CERCLA, 42 U.S.C. 9601(14), and section 1001(23) of 
the Oil Pollution Act, 33 U.S.C. 2701(23).) Because numerous 
jurisdictions have adopted definitions of hazardous substances that, in 
many respects, differ from those in CERCLA, RCRA, the Oil Pollution 
Act, and the Clean Water Act, BLM included within its definition a 
catch-all for substances defined as hazardous under Federal, state, 
tribal, or local law. Rather than cause confusion and inconsistency, as 
claimed by some commenters, BLM believes the definition fosters 
consistency in the meaning and application of key terms and provides 
clear guidance to users of their obligations and liability under these 
regulations.
    BLM disagrees that, by incorporating definitions of environmental 
terms taken from other laws, we are attempting to expand our authority 
into areas administered by EPA and state regulatory authorities under 
environmental laws. BLM is not seeking to supplant EPA and state 
authorities to regulate environmental laws on Federal and public lands. 
To the extent that EPA and the state have such authority, nothing in 
this rule affects it. These definitions apply only to BLM's right-of-
way regulations, which seek to ensure that if someone using and 
occupying a right-of-way issued under these regulations causes harm to 
health, property, or the environment, the cost of remedying such harm 
falls on the grant holder, rather than on the public.
    Several commenters stated that BLM should delete the term 
``hazardous material'' and replace it with ``hazardous substance'' as 
defined in CERCLA, because using the term ``hazardous material'' could 
weaken or dilute the exemption granted to the oil and gas industry in 
CERCLA and RCRA. The commenters misunderstand the purpose of the rule. 
Nothing in the rule

[[Page 20978]]

affects the exclusion of petroleum from the definition of ``hazardous 
substance'' under section 101(14) of CERCLA (42 U.S.C. 9601(14)). BLM 
is not seeking through this rule to enforce CERCLA on Federal or public 
lands or to regulate users' management of waste under RCRA. Rather, BLM 
is issuing these regulations to ensure that, as a manager of public 
lands, it places the risk of harm on the grant holder and not on the 
public. In this context, the definitions are used in these regulations 
only as a way to identify which materials we consider to be hazardous 
and which, therefore, may impact Federal or public lands.
    One commenter said that the final rule should define ``holder'' as 
it is defined in the law, to exclude Federal agencies. The commenter is 
correct that FLPMA does not include Federal agencies in its definition 
of holders. However, section 507 of FLPMA clearly provides for rights-
of-way for the use of any department or agency of the United States. 
Title V of FLPMA also applies to any Federal agency that would apply to 
construct an oil or gas pipeline on public lands. Therefore, we believe 
it necessary to include Federal agencies in the definition of holders.
    In the final rule we added a definition of ``management overhead 
costs'' to mean the costs associated with the BLM directorate, 
including all BLM State Directors and the entire Washington Office 
staff, except where a State Director or Washington Office staff member 
is required to perform work on a specific right-of-way case. We added 
the definition because we use the phrase in the definition of actual 
costs and in final section 2804.20.
    In the final rule we also added a definition of ``monetary value of 
the rights and privileges you seek'' to mean the objective value of 
what the right-of-way grant is worth in financial terms to the 
applicant. We added this definition because ``monetary value'' is one 
of the criteria spelled out in FLPMA that BLM uses to assess whether 
costs are reasonable and we use the term in final section 2804.20. The 
meaning of the term is the same as the definition in previous section 
2800.0-5(p).
    Several commenters said the final rule should define ``monitoring'' 
in terms of requirements and time frames and that monitoring should not 
be considered an annual or recurring cost. Another commenter asked if 
the determination of compliance was part of the ``administrative costs 
of (renewal) compliance,'' or part of day-to-day monitoring activities. 
The second comment appears to be asking if compliance inspections prior 
to renewal of a grant are part of day-to-day monitoring or part of the 
cost of processing a renewal. In the final rule we added a definition 
of monitoring, which includes those actions BLM performs to ensure 
compliance with the terms, conditions, and stipulations of the grant.
    Monitoring occurs primarily during the construction and 
rehabilitation phases of a project. During grant application 
processing, BLM will estimate the hours we will need to monitor the 
construction and rehabilitation of a Monitoring Category 1 through 4 
application, and we will collect the applicable fees when the applicant 
accepts the terms, conditions, and stipulations of a