Cars on roads with four lanes yield to cars on roads with six, and so on. Cars on a private road or in an alley, a private driveway, or parking lot must yield to cars that are already on the road. Cars that are driving along a frontage or service road must yield to cars that are exiting from a multi-lane highway or that are leaving the service road to enter a multi-lane highway. If you approach an intersection intending to turn left, yield to any vehicle that is coming straight through the intersection from the other direction.
We covered the seven basic principles earlier — and they are all very important things you should know and use every time you drive — but now we come to the one idea that is probably the most useful on a daily basis. In other words, you can give the right of way, but you cannot just take it.
Try this, and sooner or later someone is going to crash into you. There are many arrogant, impatient, self-important drivers on the road.
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The technical term for them is jerks. Better to yield to the occasional jerk than get into a crash that keeps you from getting there at all. Best Online Defensive Driving Course. Best Classrooom Defensive Driving Course. Comedy Guys Defensive Driving classroom instruction provides more scheduled defensive driving classes taught by professional entertainers than any other safety school in Texas.
Failure to yield Right-of-Way… Total Crashes. Posted in Driving and Safety and tagged right-of-way. Need Help? Technical Support. 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 land withdrawals , subpart segregation and opening of lands , and part planning, programming, and budgeting. We also eliminated the discussion in proposed 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 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. 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 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. When BLM completes, updates, or amends a land use plan we undertake an environmental 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 commenter said Start Printed Page that such a requirement could render an oil and gas project uneconomic.
We did not amend this section as suggested by the commenter. 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 , 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. 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 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 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 of FLPMA also needs to be briefly described.
Proposed and final section 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 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 , BLM designates corridors. 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. This subpart describes the qualifications necessary for applicants to receive right-of-way grants. It discusses:.
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 Start Printed Page 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 One commenter asked if BLM is authorized to issue grants to foreign entities and if so, what the qualifications are.
The part regulations are similarly silent. Regarding MLA requirements, however, 30 U. The part regulations reflect these considerations. For example, final section As in previous section Thus state law must be examined to determine the eligibility of a right-of-way applicant. Due to reorganization, we moved the substance of this proposed section to paragraph b of final section Please see that section for a discussion of this matter.
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. 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. Here, it refers to property passing by will or intestate succession.
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If the distributee of a grant is not qualified to hold a grant under section 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. This subpart contains information and policies concerning how to apply for right-of-way grants under FLPMA. D Exemptions from paying filing fees and criteria for establishing reasonable costs; and. E How BLM processes applications, including a customer service standard.
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. We received no substantive comments on this section and except for editorial changes, it remains as proposed. 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. This section explains the information you must include in your application. It requires you to file your application on Standard Form 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. 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 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 Start Printed Page 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 We did this because the form itself requires you to submit this information and therefore these words are redundant. As a result of these changes, final paragraph a 2 now includes all phases of a proposed project. 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 b 2 B of FLPMA and previous section 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 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. 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 Chapter V-B.
H, Appendix 7. 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 BLM will consider environmental documentation offered by or agreed to by an applicant in determining the appropriate cost recovery category under section 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. The comment implies that BLM could require information not relevant to evaluating an application.
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 Several commenters objected to the requirement to give BLM a plan of development and stated that it is overly burdensome, expensive, and unnecessary.
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 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 We received no substantive comments on this section. 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. 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 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 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 BLM has not increased processing fees since publication of its final rule in July A 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 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 states that BLM conducted field studies in and which measured the costs of processing right-of-way applications and monitoring grants. Between November 12, , and July 25, , BLM field offices kept and reported actual time and cost on some right-of-way projects in non-major categories see 51 FR July 25, In , 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 The preamble to the rule proposing MLA cost recovery fees in 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 , Oct.
In , 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 at approximately the same rate as the IPD-GDP. 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.
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. 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. Category 5 in the final rule is for Master Agreements only. The proposed regulations did not contain a specifically numbered category for Master Agreements, and in this final rule BLM gave these agreements their own category number.
Category 6 in the final rule Category IV in the proposed rule is for processing applications where the estimated work hours are greater than For Processing Categories 1 through 4, labor costs are by far the largest percentage of processing costs. Costs associated with environmental analysis and other application processing steps for these categories are predominantly labor costs.
The costs of supplies, printing, fuel, and lodging are relatively small. For Processing Category 5 and 6 applications, the extent of the required environmental analysis is usually an important factor in determining processing costs, particularly if the application requires an EIS. Processing costs for Category 5 and 6 applications are, however, worked out in advance between BLM and the applicant either through a Master Agreement or a detailed accounting of work hours spent on processing an application.
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In the final rule we eliminated this term and instead based the categories on the number of Federal work hours needed to process the document or request. We made this change for Categories 1 through 4 because the non-labor costs are relatively insignificant compared to labor costs, and for Categories 5 and 6 because the non-labor costs are considered as part of a Master Agreement or are otherwise negotiated.
As used in the proposed rule, field examinations conducted during the processing of applications included the time and travel costs for BLM personnel. Because, as explained, labor costs constitute nearly all costs associated with field examinations, we decided to measure costs by work hours. These factors are:. Actual costs do not include management overhead, which means costs of BLM State Directors and Washington office staff, except when a member of this group works on a specific right-of-way application or grant.
Actual cost includes both direct and indirect costs and other costs such as money spent on special studies, environmental impact statements and other analysis, and monitoring activities. We estimated actual cost figures for each category using data from the studies described previously. Where an appraisal is necessary to calculate rent for a right-of-way, such costs may be included in actual costs;. The preamble to the proposed rule at 51 FR July 25, sets forth a number of ways to estimate monetary value, such as computing residual return or the residual profit of the project.
Monetary value can be an enhancing factor when that value is greater than BLM's processing costs. In considering and applying this factor since , we have noted that the monetary value of the right or privilege sought has been much greater than the processing cost;. This factor refers to BLM's ability to process an application with a minimum of waste by carefully managing agency expenses and time. An explanation of this factor is set forth at 51 FR July 25, Among the considerations there is the establishment of a cost recovery process that does not cost more to operate than would be collected under the process.
Charging fixed fees based on the number of Federal work hours necessary to process an application benefits applicants by informing them in advance what the fee will be, and eliminates the enormous time and expense that would be required to track the processing of each document on a case-by-case basis.
The use of current average costs to set a fee schedule is a commonly accepted practice in both the private and public sectors see 50 FR Jan. Our application processing and grant administration procedures, which are based on standard steps in internal BLM Manuals and Handbooks, are reasonably efficient;. Under this factor, we examine whether any of the costs for such things as studies and data collection have value to the Federal Government or the general public apart from processing the application. Courts have held that processing which an agency is required to perform in connection with a specific request for example, before approving a permit or grant provides a special benefit to an applicant, even if it also provides some benefit to the public.
In our preamble to proposed rules at 51 FR July 25, , we stated that for non-major projects, there is little opportunity for public benefits or public services because of the local nature of such projects. We find, in practice, that any small benefit to the public provided by the processing of fixed-fee right-of-way applications is speculative and outweighed by the monetary value to the applicant of the right or privilege sought.
Major categories 5 and 6 present more opportunities for public benefits;. Data collection that we need to monitor an activity is not a public service. As mentioned above, for non-major projects such as those falling in categories 1 through 4, there is little opportunity for public service in such projects. If a project provides a small public service, it will usually be outweighed by the monetary value to the applicant of the right or privilege; and. This factor allows BLM State Directors to reduce actual processing costs based on a wide range of special circumstances, including unique instances of public benefits or services.
As noted above, MLA fees are based on actual costs. This ensures that each category is cost-weighted the same. For example, the mean hour for Category 1 is 4. In this final rule Category 4 which in the proposed rule was Processing Category III was used as the basis for determining the mean per hour rate for all categories. Multiplying the mean hour for each category by the mean per hour rate gives the fee for each category. The following brief analysis verifies the appropriateness of the above fees:. A few commenters said that we should amend the final regulations to make it clear that the applicant and BLM must agree on what are reasonable costs and that the applicant must have the ability to monitor BLM to make sure it is following the agreement.
We received similar comments on the MLA right-of-way regulations. Sections b and g of FLPMA require that right-of-way cost recovery fees represent reasonable costs. BLM's process to identify reasonable cost recovery fees has been in place since see previous subpart This final rule continues to identify reasonable costs using cost recovery categories for a right-of-way grant under FLPMA. Under the previous rule, and this final rule, BLM determines in a processing fee schedule the cost recovery fees for Categories 1 through 4.
We will determine cost recovery fees in the new Category 5 Master Agreement through a negotiated agreement between the applicant and BLM, as the comment suggests. All parties have generally accepted the process of identifying set fees in Categories 1 through 4 and their corresponding categories in the previous regulation as reflecting average reasonable costs for processing applications in those categories. The same applies for the MLA right-of-way regulations at section Although BLM determines whether an application falls into Category 6, the decision typically reflects an agreement between an applicant and BLM based on communication and cooperation.
The previous regulations contained no provision for applicants to monitor BLM in its determination of cost recovery fees, whether by decision or agreement, and such a provision is unnecessary in this final rule. BLM's internal management reviews and periodic Inspector General and Government Accounting Office audits ensure that BLM is following proper procedures based on law, our regulations, and internal guidance. The final rule contains provisions for appeals in the case of disagreement with a BLM cost recovery decision section Several commenters said that BLM should make cost adjustments based on the reasonable or actual processing costs from the previous year rather than basing it on the IPD-GDP or any other economic index.
Previous section The preamble to the proposed rule explained BLM's determination that periodic adjustment of the fees was reasonable, and included consideration of various ways to accomplish it. We evaluated the question of annual indexing while preparing the final rule and have used the IDP-GDP since August to make annual adjustment to right-of-way rent schedules under previous section Following consideration of various alternatives, and consultation with the Department of Commerce, BLM determined that applying this known and generally accepted economic indicator is the most efficient method of ensuring that processing category fees adjust with changes in economic conditions.
Conducting annual reviews and analyses of the prior year processing costs would be a time and labor intensive effort, which, considering the widely accepted use of economic indicators to make these kind of adjustments, we have determined is unnecessary. BLM continues to believe that the IPD-GDP is the appropriate method for annual indexing of processing fees because it reflects a heavily labor-based activity see 64 FR and and we retained it in the final rule. One commenter said that BLM should make it clear that we may enter into a Master Agreement at the applicant's option, but that BLM has approval authority over the final agreement.
The commenter said the proposed rule suggests that entering into a Master Agreement could be done entirely at the option of the applicant. We made the rule clearer by defining a Master Agreement as a written agreement Start Printed Page negotiated between BLM and an applicant to document cost recovery and other aspects of how application s are to be processed.
Master Agreements are, under the right conditions, available to applicants, but it requires agreement between BLM and the applicant, and is not at the sole option of either party. Several commenters said that in determining the processing costs, BLM should consider reducing fees in cases where the applicant does a considerable amount of work that benefits the public, such as archaeological collection and mitigation. We agree with the commenter that BLM may consider beneficial work performed by an applicant, such as archaeological collection above and beyond what is required, in determining whether fees might be reduced.
BLM can consider such factors under final section We do not agree that BLM should consider reducing fees due to mitigation the applicant undertakes. Mitigation addresses the consequences of the project; it is not equivalent to, for example, a public service provided by a project. Several commenters suggested that the final rule should require automatic yearly processing fee adjustments for inflation and that BLM should review the categories every ten years.
Many commenters supported adding a minimal impact cost recovery category. However, this final rule establishes a new cost recovery Category 1 for any right-of-way action requiring more than one hour, but less than or equal to eight hours to process. One industry group thought we should include a minimum impact category in the processing fee regulations to take into consideration activities such as emergency access for repair of facilities damaged by a storm or other disaster.
We did not revise the rule in response to this comment, because activities necessary to ensure safe and reliable right-of-way use are normally provided for by the grant, and would be considered within the scope of the authorized use. If maintenance or emergency activities are not within the scope of an existing grant, the proposed use would require a separate application.
Under section We encourage applicants to include provisions for emergency use or maintenance in the original grant so as to avoid having to apply for the use separately. One commenter said that there is no reason to charge a fee for less than eight hours of work. Section g of FLPMA requires that the United States be reimbursed for reasonable costs associated with processing right-of-way applications. FLPMA does not provide for fee reduction or elimination based on the number of hours an application takes to process.
As explained earlier, we determined that for actions taking less than one hour to process, the minimal costs involved to process an application does not justify charging a fee. For all other actions, unless you are exempt, as provided in final section We did not amend the rule as a result of this comment. A similar rationale applies to actual costs under the Mineral Leasing Act.
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Section b of FLPMA identifies criteria for determining reasonable costs, as did proposed section BLM considered these factors when developing the schedules for this rule and previous rules. As explained earlier, the fixed category fees originate from field studies conducted in and , and supplemented with additional studies in and For those fees, BLM would give the applicant an estimate of the proposed fee after estimating the actual cost of processing the application and considering the other FLPMA factors.
If the fee is set at less than our actual costs because of one of the FLPMA factors, processing could not proceed until funding for the shortfall became available through the BLM budget, contributions by the applicant, or other means. One commenter said that the premise that BLM should determine category fees by the number of hours spent in processing the application is false, but that there is not enough data to evaluate alternatives.
BLM has determined that using the number of hours spent in processing an application is an appropriate measure to identify cost recovery categories. We base this determination on previous studies and sampling efforts completed in , , and , and a review of known economic indicators. BLM also believes that it is reasonable to equate application processing costs to hours of staff time required.
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We agree with the commenter that the number of field examinations should not be the determining factor for processing categories and have deleted that requirement from the final rule. In the final rule, field examinations are considered only to the extent that they add to the number of hours necessary to process and monitor a right-of-way use or grant. Several commenters asked that we provide a schedule of costs in the regulations so that the public will know what the costs are before starting a project. There is no provision in section g of FLPMA or in this or previous regulations that permits BLM to collect fees from a right-of-way applicant for purposes of conducting any work beyond that necessary to process an application.
In Nevada Power Co. Watt, F. Several commenters asked if BLM does routine Category I in the proposed rule, Category 2 in the final rule applications in blocks and stages in which BLM handles several applications at a time, will companies be charged the full amount for each right-of-way. Where efficiencies can be gained by handling the processing of similar or related applications in combination, BLM will do so.
If we process several applications in a combined effort, BLM will identify that portion of the effort, in hours, attributable to each application and determine the appropriate cost recovery categories based on those hours. Such efficiencies will most likely occur in Categories 1 through 4, and in the context of a Master Agreement Category 5. Several commenters asked that BLM provide clear-cut examples of specific types of activities that fall into each category. Because hours are the measure BLM uses to determine the processing costs category, and since there may be several proposed right-of-way uses in a given category, there is no such thing as a typical application.
Therefore, we have not provided specific examples for each category in the final rule. However, we expect that most assignment and renewal applications will require fewer than eight hours to process and will, therefore, fall into Category 1. Beyond that, the hours BLM requires to process the application, including those for assignments and renewals, and not the type of proposed use itself, determines the cost recovery category.
Many commenters said that fees for processing assignments are too high. They also said that if the amount of time necessary to process the application is less than the category designation, the fee should be lower. We changed the final rule to lower processing fees for any right-of-way action requiring eight hours or less to process, as suggested in these comments.
The new Processing Category 1 will apply to all applications requiring eight or fewer hours to process. Several commenters stated that the oil and gas industry pays its own way through bonuses and royalties and therefore should not pay any fees for rights-of-way to develop and produce mineral resources. They stated that BLM should reduce or eliminate fees for the oil and gas industry since:. A The revenue stream to the public good resulting from mineral extraction is significant and roadways constructed for oil and gas operations are used by the public and other governmental agencies;.
B BLM's operating budget is less than the revenues received from the oil and gas industry;. C Oil and gas rights-of-way are the infrastructure roads and pipelines that allows the treasury to realize the revenues being developed;. D BLM should recognize the tangible and valuable benefits that right-of-way grants provide, such as archaeological and threatened and endangered species surveys, road upgrades, and maintenance that benefits recreational users; and. E There must be a distinction between those entities that simply use the land and those that pay bonuses and develop minerals and pay royalties.
Please see the discussion in the General Comments section at the beginning of this preamble for a discussion of why we disagree with the commenters. We note that any benefits to the public provided by BLM's processing or any public service provided by the applicant through tangible improvements are factored into the fees BLM charges. See final section Many commenters said that BLM should not increase fees. Commenters said that the public should not suffer a percent increase because BLM did not make proper administrative decisions in the past.
BLM does not agree with these comments. First, we note that the fees are charged to right-of-way applicants, not the public. Second, any increase reflects an adjustment in the proposed rule, based on the increase in the IPD-GDP since the studies and comments. BLM has not increased these fees since As stated in the proposed rule, the IPD-GDP is a reasonable measure to adjust fees that are heavily dependent on labor costs.
This final rule contains a periodic review requirement to reevaluate these fees. A few commenters said the rule should make clear that fee increases will not be applied retroactively. The processing fees in section Applications pending on the effective date of this final rule will be charged processing fees under subpart of the previous rule. However, the holder of a new grant authorized after the effective date of these regulations will be subject to the new monitoring fees.
We do not agree with the comment. If BLM agrees to allow an applicant to supply NEPA or other documentation, that may reduce the time BLM requires to process the application depending on factors such as completeness and technical adequacy , which may reduce the fee BLM charges. This could also hold true for set fees Categories 1 through 4 if the number of BLM processing hours is reduced enough that the application falls into a lower processing fee category.
We note, however, that regardless of whether BLM or the applicant supplies the documentation, the applicant is responsible for the costs. A few commenters said BLM needed to make clear what the fees are targeted toward recovering. We believe the rule does that. Section g of FLPMA and these regulations provide for the reimbursement of all reasonable administrative and other costs BLM incurs to process a right-of-way application and to inspect and monitor the construction, operation, and termination of a facility authorized by a grant.
In this final rule, the range of tasks that BLM performs during application processing is measured by the hours necessary to perform them. Another comment stated that BLM should recognize that fees could be reduced if economic indices go down. As provided in final section The annual adjustment in fees will follow any annual second quarter to second quarter change of this index, either up or down.
Under final section Two non-profit cooperatives opposed the fee increases because they stated that they would have to pass the costs along to their customers and that, instead of increasing the fees, BLM should streamline its operations to become more efficient and cost effective. Although non-profit applicants are not exempt from paying processing fees, final section One of the factors BLM may consider is whether the studies undertaken in connection with processing the application of a non-profit have a public benefit.
If during the periodic review of processing fees and categories BLM determines that revising the fees and fee structure is warranted, we will make an adjustment as set forth in section This is a new section to the final rule that explains that BLM reevaluates processing and monitoring fees for each category, and the categories themselves, within five years after they go into effect and at year intervals after that. This section also lists some examples of the types of factors BLM considers when reevaluating these fees. Several comments suggested a periodic review and evaluation of the processing and monitoring fees and categories, and this section is in response to those concerns.
Previous rules established fixed processing and monitoring fees with no provision for reviewing them. BLM added this provision in this final rule to ensure that the fees and categories are systematically reviewed. Any adjustment that BLM makes to the fees or fee structure as a result of a review under this section, apart from applying the IPD-GDP, would require a separate rulemaking.
This section explains that under certain conditions, state and local governments or their agencies are exempt from paying processing and monitoring fees. It also explains that if a grant application is associated with a cost-share road or a reciprocal right-of-way agreement, the applicant is exempt from processing and monitoring fees.
A reciprocal right-of-way is the grant to the United States of an access right or easement across private lands as a condition of receiving a right-of-way authorization from the United States. A cost share road authorization is created where the United States and a private party participate, through agreement, to share costs of road construction and maintenance. Several commenters said that BLM should not exempt Federal Power Marketing Agencies and other non-profit energy providers from processing fees and rent payments because that would give them an unfair competitive advantage in an open power market.
Other commenters said that Federal Power Marketing Agencies and other non-profit energy providers should be exempt from processing fees. The previous rule at section The only substantive change we made from previous regulations is that Federal agency applicants are no longer automatically exempt. Any applicant, including a Federal Power Marketing Agency, that does not meet the new exemption requirements must pay reasonable processing costs. Final sections Several commenters said that the rule should not eliminate the Federal agency exemption for processing fees. Other commenters said we should establish a threshold over which we would begin charging an agency processing fees.
Another commenter said that the rules should exempt Federal agencies from having to pay rent, but not from paying processing fees. Although previous section To recognize this common practice, and to provide consistency and efficiency in fund transactions, we eliminated the automatic Federal agency processing costs exemption in this final rule. Several commenters said that BLM does not have the authority to remove the exemption for Federal agencies or those agencies whose facilities are eligible for financing under the Rural Electrification Act REA.
It does allow us to require a right-of-way applicant to reimburse the United States for reasonable processing costs. Although the previous rule provided for an automatic exemption to Federal agencies, that rule may be changed by subsequent rulemaking. Section g gives BLM discretion to require, by promulgation of regulations, right-of-way applicants, including Federal agencies, to pay reasonable processing costs. Regarding facilities eligible for REA financing, section g of FLPMA exempts from rent rights-of-way for electric or telephone facilities eligible for financing under the REA, but specifically reinforces the authority for requiring reimbursement of reasonable processing costs from such applicants.
The final proviso of section g addresses this point. One commenter said that BLM needs to have the flexibility to determine when to waive processing and monitoring payments for Federal agencies. One commenter said that a weak argument could be made that the Western Power Administration is exempt from paying processing fees because it is in the business of supplying electrical power to rural electric associations. As explained earlier, section g of FLPMA addresses facilities eligible for REA financing and exempts from rent rights-of-way containing these facilities.
It does not exempt such holders from reimbursement of reasonable application processing costs. Therefore, the Western Power Administration is not exempt from payment of reasonable processing costs. One commenter was concerned that under these regulations, a non-commercial private individual would pay agency costs for processing a grant, but a commercial user may not. The commenter may be referring to the fact that an applicant for a right-of-way involving a cost-share road or reciprocal right-of-way agreement is exempt from paying processing and monitoring fees under section This section further provides that BLM need not secure reimbursement in any situation where there is in existence a cooperative cost-share right-of-way program.
This section explains that a Master Agreement is a negotiated agreement between you and BLM covering processing and monitoring fees for multiple applications and grants within a defined geographic area. This section also explains how to apply for a Master Agreement. In the final rule we split proposed section This revised section provides a clearer description of what a Master Agreement is.
We made this change to make clear that a Master Agreement is not strictly limited to negotiation of processing and monitoring fees. A Master Agreement may contain negotiated agreements between BLM and an applicant concerning other aspects of application processing and monitoring as indicated in final section Revised section We amended paragraph a in the final section Final paragraph b 3 is also different from the proposal in that the final rule requires you to submit a timetable along with the preliminary cost estimate.
The customer service standard in final section We also made other changes to this section. We simplified proposed paragraph b 4 and moved it to final section Proposed paragraph b 5 now appears as section One commenter said that the rule should require BLM and the applicant to meet to determine the scope of the data needed to process the application to limit the amount of additional information that BLM may request under this section.
The same commenter asked who in BLM has the authority to sign the agreement. Since this final rule defines a Master Agreement as an agreement negotiated between BLM and an applicant, communications are by implication necessary to reach such agreement. Therefore, a regulatory requirement to compel a meeting is unnecessary. Signature levels for right-of-way grants are identified in the BLM delegation of authority Manual at section For most rights-of-way, the delegated authority is at the field manager level, and therefore, we will usually authorize Master Agreements at that level.
Master Agreements would not apply to those major rights-of-way not delegated below the BLM State Director signature level, as these are usually single or related one-time actions which are handled in Processing Category 6.
The Right of Way — Volume 06
Two commenters said that BLM must commit to making the private party an integral party in agreeing on the level of work necessary to adequately monitor and administer plans for lands affected by Master Agreements. Several commenters asked that the final rule provide for an appeals process for Master Agreements to resolve disagreements over Master Agreements.
Inherent in the concept of a Master Agreement is a cooperative relationship between BLM and an applicant. BLM is committed to working with any applicant wishing to pursue a Master Agreement. Under the proposed rule and final section More specifically, an applicant's signature on a Master Agreement constitutes agreement with all of its provisions, including the negotiated application processing costs.
A signed Master Agreement documents BLM's decision on the processing category and the applicant's agreement with it.