Vol. 79 Tuesday, 

No. 189 September 30, 2014 

Part V 

Department of the Interior 

Bureau of Land Management 

43 CFR Parts 2800 and 2880 

Competitive Processes, Terms, and Conditions for Leasing Public Lands 

for Solar and Wind Energy Development and Technical Changes and 

Corrections; Proposed Rule 


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59022 Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Bureau of Land Management 

43 CFR Parts 2800 and 2880 

[LLWO301000.L13400000] 

RIN 1004–AE24 

Competitive Processes, Terms, and 

Conditions for Leasing Public Lands 

for Solar and Wind Energy 

Development and Technical Changes 

and Corrections 

AGENCY: Bureau of Land Management, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: The Bureau of Land 

Management (BLM) proposes to amend 

existing regulations to facilitate 

responsible solar and wind energy 

development and to receive fair market 

value for such development. The 

proposed rule would promote the use of 

preferred areas for solar and wind 

energy development and establish 

competitive processes, terms, and 

conditions (including rental and 

bonding requirements) for solar and 

wind energy development rights-of-way 

both inside and outside these preferred 

areas. In the proposed rule, preferred 

areas for solar and wind energy 

development would be called 

‘‘designated leasing areas.’’ The 

proposed rule would also make 

technical changes, corrections, and 

clarifications to existing rights-of-way 

regulations. Some of these changes 

would affect all rights-of-way and some 

provisions would affect particular types 

of actions, such as transmission lines 

with a capacity of 100 Kilovolts (kV) or 

more, or pipelines 10 inches or more in 

diameter. 

DATES: Please submit comments on or 

before December 1, 2014. 

ADDRESSES: You may submit comments 

by any of the following methods: 

Mail: Director (630) Bureau of Land 

Management, U.S. Department of the 

Interior, 1849 C St. NW., Room 2134LM, 

Washington, DC 20240, Attention: 

1004–AE24. 

Personal or messenger delivery: U.S. 

Department of the Interior, Bureau of 

Land Management, 20 M Street SE., 

Room 2134LM, Attention: Regulatory 

Affairs, Washington, DC 20003. 

Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions at this Web site. 

You may submit comments on the 

proposed collection of information by 

fax or electronic mail as follows: 

Fax: Office of Management and 

Budget, Office of Information and 

Regulatory Affairs, Desk Officer for the 

Department of the Interior, 202–395– 

5806. 

Electronic mail: oira_submission@

omb.eop.gov. 

Please indicate ‘‘Attention: OMB 

Control Number 1004–XXXX,’’ 

regardless of the method used. If you 

submit comments on the proposed 

collection of information please provide 

the BLM with a copy of your comments 

at one of the addresses shown above. 

FOR FURTHER INFORMATION CONTACT: Ray 

Brady, Bureau of Land Management, at 

202–912–7312, for information relating 

to the BLM’s solar and wind renewable 

energy programs, or the substance of the 

proposed rule. For information 

pertaining to the changes made for any 

transmission line with a capacity of 100 

kV or more, or any pipeline 10 inches 

or more in diameter you may contact 

Lucas Lucero at 202–912–7342. For 

information on procedural matters or 

the rulemaking process you may contact 

Jean Sonneman at 202–912–7405. 

Persons who use a telecommunications 

device for the deaf (TDD) may call the 

Federal Information Relay Service 

(FIRS) at 1–800–877–8339, to contact 

the above individuals. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

The BLM initiated this rulemaking in 

2011 by publishing an Advance Notice 

of Proposed Rulemaking (ANPR) 

seeking public comment on a potential 

regulatory framework for competitive 

solar and wind energy rights-of-way. 

The regulations in this proposed rule 

would provide for such a framework, 

update rental fees, establish new 

Megawatt (MW) Capacity fees for wind 

and solar energy projects, and codify 

existing solar and wind energy policies 

in 43 CFR 2800. The proposed 

regulations also would affect other 

rights-of-way, including transmission 

lines with a capacity of 100 kV or more, 

and pipelines 10 inches or more in 

diameter. 

Statutory and Regulatory Authority 

Facilities for the generation, 

transmission, and distribution of 

electric energy are authorized under 

Title V of the Federal Land Policy and 

Management Act (FLPMA) (43 U.S.C. 

1761–1771) and 43 CFR part 2800. 

Section 501(b)(1) includes provisions 

authorizing the consideration of 

competition in the issuance of a rightof-way. Section 504(g) requires annual 

rental payments of fair market value for 

a right-of-way, but does not provide for 

royalty payments on electricity 

generation. 

Rights-of-way for oil and gas pipelines 

are authorized under Section 28 of the 

Mineral Leasing Act (30 U.S.C. 185) and 

43 CFR Part 2880. The BLM processes 

applications for these categories of 

rights-of-way in accordance with 43 

CFR 2884.11. 

Policies 

Title V of FLPMA authorizes the BLM 

to issue right-of-way grants, leases, and 

easements. The majority of BLM-issued 

rights-of-way are grants. The BLM 

intends to differentiate the solar and 

wind energy development rights-of-way 

issued inside a designated leasing area 

under new subpart 2809 as leases, 

which would be a type of grant with 

specific requirements. 

The BLM released a Draft Solar 

Energy Programmatic Environmental 

Impact Statement (EIS) on December 17, 

2010, and released a Supplemental 

Solar EIS on October 28, 2011. The 

Supplemental EIS included discussions 

of a process to identify and offer public 

lands in Solar Energy Zones (SEZs) 

through a competitive leasing process. 

The Supplemental EIS indicated that 

the BLM would pursue a rulemaking 

process to implement a competitive 

leasing program within SEZs. The BLM 

released the Final Solar EIS on July 27, 

2012, and the Secretary signed the 

Record of Decision on October 12, 2012, 

which carried forward the proposal to 

establish a competitive leasing program 

within the SEZs. 

The designation of SEZs, as an 

outcome of the Solar Energy 

Programmatic EIS, provides the 

foundation for initiating a Bureaumotion competitive process for offering 

lands for solar energy development 

within the SEZs. Similar efforts could 

be initiated by the BLM for designated 

wind development areas that may be 

identified in the future. The public 

comment period on the ANPR ended in 

February 2012 and this proposed rule 

has been prepared for competitive solar 

and wind energy leases in designated 

renewable energy leasing areas. 

Competitive Leasing Process 

The proposed rule outlines the 

competitive leasing process for solar 

and wind energy leases in designated 

leasing areas, including the definition of 

designated leasing areas, the nomination 

process, reviews of nominations, 

competitive bidding procedures, and the 

administration of solar or wind energy 

leases issued through the competitive 

leasing process. The proposed rule also 

includes provisions to provide 

incentives for leases within designated 

leasing areas. The proposed rule 

establishes a new $15 per-acre 


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application filing fee for right-of-way 

applications outside of designated 

leasing areas to discourage speculative 

applications and encourage 

development in the preferred designated 

leasing areas. 

The proposed rule would provide for 

variable offsets when the competitive 

bidding process is used in a designated 

leasing area. A bidder would have an 

opportunity to pre-qualify for the offset 

by meeting the factors set forth in the 

Notice of Competitive Offer. Prequalified bidders would be eligible for 

offsets limited to no more than 20 

percent of the high bid. Factors for a 

bidder to pre-qualify may vary from one 

competitive lease offer to another, but 

could include offsets for bidders with an 

approved Power Purchase Agreement 

(PPA) or Interconnect Agreement, 

among other factors. The proposed rule 

also includes revised language to 

facilitate the competitive ROW 

application process outside of 

designated leasing areas under the 

provisions of the existing right-of-way 

regulations at 43 CFR 2804.23. This 

provision would allow the use of a 

competitive process to select a preferred 

applicant for the processing of a ROW 

application outside of designated 

leasing areas. 

Incentives 

The proposed rule includes some 

financial incentives for leases within 

designated leasing areas. Incentives for 

designated leasing areas would include 

a limited nomination fee of $5 per acre 

for wind and solar competitive parcels, 

variable offsets for pre-qualified bidders, 

10-year phase-in of the MW capacity fee 

as opposed to a 3-year phase-in for 

authorizations outside of a designated 

leasing area, issuance of 30-year fixedterm leases, and standard bonding 

requirements to include $10,000 per 

acre for solar energy development and 

$20,000 per wind energy turbine. 

Rents and Fees 

The proposed rule would update the 

annual rent schedules for both solar and 

wind energy authorizations. The acreage 

rent would be based on the acreage of 

the authorization, using a 10 percent 

encumbrance value for wind energy 

authorizations and a 100 percent 

encumbrance value for solar energy 

authorizations. This compares to a 50 

percent encumbrance value that is used 

for determining rent for a linear right-ofway on the public lands. The acreage 

rent for both linear rights-of-way and 

solar and wind energy rights-of-way 

would vary by individual counties and 

are based on land values determined by 

data published by the National 

Agricultural Statistics Service. 

A MW capacity fee would be used to 

capture the increased value of a solar or 

wind energy project on the public lands 

above the rural land value captured by 

the acreage rent. The MW capacity fee 

captures the value of the electrical 

generation from a project based on a 

formula that includes the MW size of 

the approved project, a capacity factor 

or efficiency factor based on average 

potential electric generation that varies 

by solar and wind technologies, average 

wholesale prices of electricity, and a 

Federal rate of return based on a 20-year 

Treasury bond. The capacity factor used 

for calculating the MW capacity fee 

would be 20 percent for solar 

photovoltaic (PV), 25 percent for 

concentrated solar power (CSP), 30 

percent for CSP with storage, and 35 

percent for wind. 

The MW capacity fee would increase 

from the current fee of $4,155 per MW 

to $6,209 per MW for wind energy 

authorizations and adjust to $3,548 per 

MW for PV solar, $4,435 per MW for 

CSP solar and $5,322 per MW for CSP 

solar with storage. The MW capacity fee 

would provide for a 3-year phase-in 

outside of designated leasing areas (25 

percent, 50 percent and 100 percent) 

and provide for a 10-year phase-in 

within designated leasing areas (50 

percent the first 10 years and 100 

percent for subsequent years). The MW 

capacity fees are based upon and 

supported by an appraisal consultation 

report performed by the Department’s 

Office of Valuation Services. 

The proposed rule would expand cost 

recovery, in response to BLM field office 

recommendations, to the preapplication process that has been 

implemented for solar and wind energy 

projects. In addition, the proposed rule 

would provide for cost reimbursement 

measures to coincide with a Secretarial 

Order for delegation of FLPMA cost 

recovery authority to other agencies and 

offices of the Department of the Interior. 

43 CFR Part 2880 

The BLM is proposing revisions to 

several subparts of part 2880. These 

revisions are necessary to ensure 

consistency of policies, processes, and 

procedures, where possible, between 

rights-of-way applied for and 

administered under part 2800 and those 

applied for and those rights-of-way 

administered under part 2880. In 

addition, the BLM is proposing preapplication requirements and fees for 

any transmission line with a capacity of 

100 kV or more, or any pipeline 10 

inches or more in diameter (see section 

2884.10), similar to those being 

proposed for all solar energy and wind 

energy projects. Authorizations for solar 

or wind energy, for any transmission 

line with a capacity of 100 kV or more, 

or any pipeline 10 inches or more in 

diameter, are all generally large-scale 

operations that require additional steps 

to help protect the public land. 

I. Public Comment Procedures 

II. Background 

III. Advance Notice of Proposed Rulemaking 

for the Competitive Solar and Wind 

Energy Development Regulations 

IV. General Discussion and Section-bySection Analysis 

V. Procedural Matters 

I. Public Comment Procedures 

You may submit comments on this 

proposed rule by mail, personal or 

messenger delivery, or electronic mail. 

Mail: Director (630) Bureau of Land 

Management, U.S. Department of the 

Interior, 1849 C St. NW., Room 2134LM, 

Washington, DC 20240, Attention: 

Regulatory Affairs, 1004–AE24. 

Personal or messenger delivery: U.S. 

Department of the Interior, Bureau of 

Land Management, 20 M Street SE., 

Room 2134LM, Attention: Regulatory 

Affairs, Washington, DC 20003. 

Electronic mail: You may access and 

comment on the proposed rule at the 

Federal eRulemaking Portal by 

following the instructions at that site 

(see ADDRESSES). 

Written comments on the proposed 

rule should be specific, should be 

confined to issues pertinent to the 

proposed rule, and should explain the 

reason for any recommended change. 

When possible, comments should 

reference the specific section or 

paragraph of the proposed rule that the 

comment is addressing. 

The BLM need not consider or 

include in the Administrative Record 

for the final rule, comments that it 

receives after the close of the comment 

period (see DATES) or comments 

delivered to an address other than those 

listed above (see ADDRESSES). 

Comments, including names and 

street addresses, will be available for 

public review at the U.S. Department of 

the Interior, Bureau of Land 

Management, 20 M Street SE., Room 

2134LM, Washington, DC 20003 during 

regular hours (7:45 a.m. to 4:15 p.m.), 

Monday through Friday, except 

holidays. They will also be available at 

the Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions at this Web site. 

You may submit comments on the 

proposed collection of information by 

fax or electronic mail as follows: 

Fax: Office of Management and 

Budget, Office of Information and 


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59024 Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Proposed Rules 

Regulatory Affairs, Desk Officer for the 

Department of the Interior, 202–395– 

5806. 

Electronic mail: oira_submission@

omb.eop.gov. Please indicate 

‘‘Attention: OMB Control Number 1004– 

XXXX,’’ regardless of the method used. 

If you submit comments on the 

proposed collection of information, 

please provide the BLM with a copy of 

your comments at one of the addresses 

shown above. 

Before including your address, 

telephone number, email address, or 

other personal identifying information 

in your comment, be advised that your 

entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask in your comment for 

the BLM to withhold your personal 

identifying information from public 

review, we cannot guarantee that we 

will be able to do so. 

II. Background 

Section 310 of the Federal Land 

Policy and Management Act (FLPMA) 

(43 U.S.C. 1740) authorizes the 

Secretary of the Interior (Secretary) to 

promulgate regulations with respect to 

public lands. FLPMA also provides 

comprehensive authority for the 

administration and protection of the 

public lands and their resources and 

directs that the public lands be managed 

‘‘on the basis of multiple use and 

sustained yield’’ (43 U.S.C. 1701(a)(7)). 

In this proposed rule, the BLM would 

amend its regulations to provide for two 

competitive processes for solar and 

wind energy rights-of-way on public 

lands. One of the processes would be for 

lands inside ‘‘designated leasing areas,’’ 

that is, areas that have been identified 

as preferred for solar or wind energy 

facility development. The other process 

would be for lands outside of such 

areas. The proposed rule, in an 

amendment of 43 CFR 2801.5, would 

define the term ‘‘designated leasing 

area’’ as a parcel of land with specific 

boundaries identified by the BLM landuse planning process as being a 

preferred location, conducted through a 

landscape-scale approach, for solar or 

wind energy where a competitive 

process must be undertaken. 

For lands outside designated leasing 

areas, the BLM would amend existing 

section 2804.23 to allow the BLM to 

provide for a competitive bid process 

specifically for solar or wind energy 

development. At present, section 

2804.23 authorizes a competitive 

process only when the BLM is resolving 

competing applications for the same 

facility or system. Under amended 

section 2804.23, the BLM could 

competitively offer lands by soliciting 

bids. The highest bidder would become 

the preferred applicant for a right-ofway if all requirements are met. The 

competitive process for solar and wind 

energy development on lands outside of 

designated leasing areas is outlined in 

new section 2804.30. 

The competitive process for lands 

inside designated leasing areas is 

outlined in new 43 CFR subpart 2809, 

which would provide for a nomination 

and competitive process, instead of an 

application process. This nomination 

and competitive process for lands inside 

designated leasing areas was the 

primary focus of the BLM’s Advance 

Notice of Proposed Rulemaking (ANPR) 

that was published on December 29, 

2011 (76 FR 81908). 

This proposed rule includes not only 

the process that was emphasized in the 

ANPR and a proposed competitive 

process for lands outside of designated 

leasing areas, but also a number of 

amendments to other provisions of the 

right-of-way regulations found at 43 

CFR part 2800 and 43 CFR part 2880. 

The BLM has determined that it is 

necessary to first articulate the general 

requirements for rights-of-way in order 

to distinguish the specific solar and 

wind requirements. 

For example, the proposed rule has 

mandatory bonding requirements for 

solar and wind energy, including a 

minimum bond amount. The BLM has 

determined that bonding is necessary 

for all solar and wind rights-of-way 

because of the intensity and duration of 

the impacts of such authorizations. For 

other right-of-way grant or lease 

authorizations, the BLM would require 

bonding at its discretion, under both the 

existing and proposed regulations. The 

proposed regulations, however, identify 

specific bonding requirements, should 

the BLM require a bond. 

Other proposed amendments pertain 

to right-of-way bonding, rents for rightsof-way, and changes in pre-application 

requirements for applications for any 

transmission line with a capacity of 100 

kV or more, or any pipeline 10 inches 

or more in diameter. Based on the 

BLM’s experience, pipelines and 

transmission lines of these sizes would 

be large-scale projects and generate 

more public interest. In addition, this 

rule proposes several technical 

corrections. 

FLPMA provides comprehensive 

authority for the administration and 

protection of the public lands and their 

resources and directs that the public 

lands be managed ‘‘on the basis of 

multiple use and sustained yield’’ (43 

U.S.C. 1701(a)(7)). As defined by 

FLPMA, the term ‘‘right-of-way’’ 

includes an easement, lease, permit, or 

license to occupy, use, or traverse 

public lands (43 U.S.C. 1702(f)). Title V 

of FLPMA (43 U.S.C. 1761–1771) 

authorizes the BLM to issue rights-ofway for electric generation systems on 

the public lands and this authority 

includes solar and wind energy 

generation systems. FLPMA also 

mandates that ‘‘the United States 

receive fair market value of the use of 

the public lands and their resources 

unless otherwise provided for by 

statute’’ (43 U.S.C. 1701(a)(9)). Section 

28 of the Mineral Leasing Act (MLA) (30 

U.S.C. 185) provides similar authority 

for authorizing rights-of-way for oil and 

gas pipelines. The BLM has authority to 

issue regulations under both FLPMA (43 

U.S.C. 1740) and the MLA (30 U.S.C. 

185). 

The Energy Policy Act of 2005 

(codified at 42 U.S.C. 15801 et seq.) 

(EPAct) includes provisions authorizing 

and encouraging the Federal 

Government to develop energy 

producing facilities. Title II of the EPAct 

includes a provision encouraging the 

Secretary to approve non-hydropower 

renewable energy projects (solar, wind, 

and geothermal) on public lands with a 

total combined generation capacity of at 

least 10,000 MW of electricity by 2015. 

See Section 211, Public Law 109–58, 

119 Stat. 660 (2005). 

Since passage of the EPAct, the 

Secretary has issued several orders that 

emphasize the importance of renewable 

energy development on public lands 

and the Department of the Interior’s 

(Department) efforts to achieve the goal 

that Congress established in Section 211 

of the EPAct. Secretarial Order No. 

3283, ‘‘Enhancing Renewable Energy 

Development on the Public Lands,’’ was 

signed by Secretary Salazar on January 

16, 2009, and facilitates the 

Department’s efforts to achieve the goal 

established by Congress in Section 211 

of the EPAct. On March 11, 2009, 

Secretary Salazar signed Secretarial 

Order No. 3285, ‘‘Renewable Energy 

Development by the Department of the 

Interior’’ that describes the need for 

strategic planning and a balanced 

approach to domestic resource 

development. This order was amended 

by Secretarial Order 3285A1 (Order) in 

February 2010. This amended Order 

establishes the development of 

renewable energy on public lands as one 

of the Department’s highest priorities. 

In 2012, the BLM met the goal 

established by Congress by approving 

over 12,000 MWs of renewable energy. 

However, the development of renewable 

energy is a continuing Federal priority. 

On June 25, 2013, to emphasize the 

importance of the renewable energy 


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goals of the nation, the President 

announced the release of a Climate 

Action Plan to reduce carbon pollution. 

The Climate Action Plan set a new goal 

for the Department to approve a 

renewable energy capacity of at least 

20,000 MWs of electricity on the public 

lands by 2020. 

The BLM has, in recent years, issued 

several instruction memoranda (IM) that 

identify policies and procedures related 

to processing solar and wind energy 

right-of-way applications. Through this 

rule, the BLM intends to incorporate 

many of these existing policies and 

procedures into its right-of-way 

regulations. The IMs can be found at 

http://www.blm.gov/wo/st/en/prog/

energy/renewable_energy.html. 

Briefly, the IMs are as follows: 

1. IM 2009–043, Wind Energy 

Development Policy: This IM provides 

guidance on processing right-of-way 

applications for wind energy projects on 

public lands; 

2. IM 2011–003, Solar Energy 

Development Policy: This IM provides 

guidance on the processing of right-ofway applications and the administration 

of authorized solar energy projects on 

public lands; 

3. IM 2011–059, National 

Environmental Policy Act (NEPA) 

Compliance for Utility-Scale Renewable 

Energy Right-of-Way Authorizations: 

This IM clarifies NEPA policy for 

evaluating solar and wind energy 

project right-of-way applications; 

4. IM 2011–060, Solar and Wind 

Energy Applications—Due Diligence: 

This IM provides guidance on the due 

diligence requirements for solar and 

wind energy development right-of-way 

applications; and 

5. IM 2011–061, Solar and Wind 

Energy Applications—Pre-Application 

and Screening: This IM provides 

guidance on the review of right-of-way 

applications for solar and wind energy 

development projects on public lands. 

More recently, Secretary Jewell signed 

Secretarial Order No. 3330, ‘‘Improving 

Mitigation Policies and Practices of the 

Department of the Interior.’’ In it, the 

Secretary established principles for the 

use of the mitigation strategies when 

considering the deployment of 

infrastructure, particularly large-scale 

applications, that impact natural 

resources and should incorporate a 

landscape-scale approach to mitigation 

compliance. The process proposed 

within this rule allows for the inclusion 

of landscape-scale approach and other 

mitigation actions on the public land. 

Further, the President issued 

Executive Order 13604, ‘‘Improving 

Performance of Federal Permitting and 

Review of Infrastructure Projects.’’ The 

President established executive policy 

to improve the permitting and review 

processes across multiple agencies to 

reduce the aggregate time required to 

make permitting and review decisions 

on projects. In the policies, improved 

outcomes for communities and the 

environment were addressed. The 

policies compelled the agencies to 

improve practices such as ‘‘preapplication procedures, early 

collaboration with other agencies, 

project sponsors, and affected 

stakeholders and coordination with 

State, local and tribal governments.’’ 

In addition, the BLM has completed 

two programmatic EISs related to wind 

and solar energy development. These 

programmatic EISs supported decisions 

by the BLM to amend a large number of 

land use plans (LUP), which guide 

future BLM management actions by 

identifying and modifying desired 

outcomes and allowable or potential 

uses on public lands covered by a 

particular LUP. 

On June 24, 2005, the BLM published 

the Final Programmatic Environmental 

Impact Statement on Wind Energy 

Development on BLM-Administered 

Lands in the Western United States (70 

FR 36651), which analyzed the 

environmental impact of the 

development of wind energy projects on 

public lands in the West and identified 

approximately 20.6 million acres of 

public lands with wind energy 

development potential (http://

windeis.anl.gov). The Final 

Programmatic EIS and the Record of 

Decision (ROD) for Implementation of a 

Wind Energy Development Program and 

Associated Land Use Plan Amendments 

(71 FR 1768) did not identify specific 

wind energy development leasing areas, 

but rather identified areas that had 

potential for the development of wind 

energy production facilities, along with 

areas that were excluded from 

consideration from wind energy facility 

development because of other resource 

values that were incompatible with this 

use. The Programmatic EIS on Wind 

Energy Development also amended 48 

BLM LUPs to incorporate wind energy 

development. 

On July 27, 2012, the BLM and the 

Department of Energy published the 

Notice of Availability of the Final 

Programmatic Environmental Impact 

Statement for Solar Energy Development 

in Six Southwestern States (Solar 

Programmatic EIS) (77 FR 44267), which 

assessed the environmental, social, and 

economic impacts associated with 

utility-scale solar energy development 

on public lands in Arizona, California, 

Colorado, Nevada, New Mexico, and 

Utah (http://solareis.anl.gov). On 

October 12, 2012, the BLM and the 

Department issued the Solar 

Programmatic EIS ROD, which 

identified 17 solar energy zones (SEZs) 

on BLM managed lands, modified 89 

land use plans, and described the BLM’s 

intent to use a competitive offer process 

to facilitate solar energy development 

projects in SEZs. 

This proposed rule is one of the steps 

being taken by the Department and the 

BLM to promote renewable energy 

development on the public lands 

consistent with the BLM’s multiple use 

mission. The proposed rule would also 

implement the suggestions for 

improving the renewable energy 

program made by the Office of the 

Inspector General for the Department, 

initially in its draft report and carried 

over to the final report (Report No. CR– 

EV–BLM–0004–2010) and the 

Government Accountability Office 

(Audit No. 361373), both of which 

address the use of competitive leasing 

for solar and wind development 

authorizations. The Inspector General 

(IG) reviewed the BLM’s renewable 

energy activities to assess the 

effectiveness of the BLM’s development 

and management of its renewable 

energy program. The IG also made 

recommendations on other aspects of 

the BLM’s right-of-way program. 

The IG report discusses only wind 

energy projects, as the solar energy 

program was not at a stage where 

projects had been authorized. However, 

based on experience gained from recent 

authorizations for solar projects, the 

BLM believes that these 

recommendations also should apply to 

solar energy projects. 

Other IG recommendations pertained 

to the amounts and collection 

procedures for bonds covering wind 

energy projects. These 

recommendations included: 

1. Requiring a bond for all wind and 

solar projects and reassessing the 

minimum bond requirements; 

2. Tracking and managing bond 

information; 

3. Developing and implementing 

procedures to ensure that when a 

project is transferred, the BLM would 

return the first bond to the company 

that obtained it and request a new bond 

from the newly assigned company; and 

4. Developing and implementing 

Bureau-wide guidance for using 

competitive bidding on wind and solar 

ROWs. 

For additional information, you may 

review the IG report and 

recommendations at: http://

www.blm.gov/wo/st/en/prog/energy/

renewable_energy.html. 


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The BLM concurred with the 

recommendations provided by the IG 

report. The last recommendation is one 

of the principal reasons for developing 

this proposed rule. The other 

recommendations require changes in the 

BLM’s operating procedures that will 

also be addressed through this 

rulemaking. 

Through this rulemaking, the BLM 

proposes to amend existing regulations 

in 43 CFR parts 2800 and 2880, and in 

particular: 

1. § 2804.25, to establish screening 

criteria to prioritize applications for 

solar or wind energy development 

applications; 

2. § 2804.30, to establish a 

competitive process for leasing public 

lands outside of designated leasing areas 

for solar and wind energy development; 

3. § 2805.11(b), to establish a term for 

granting rights-of-way for solar or wind 

energy development; 

4. § 2805.12(c), to establish terms and 

conditions for a solar or wind energy 

development grant or lease; 

5. § 2805.20, to provide more detail on 

bonding requirements; 

6. § 2806.50, to provide information 

on rents for solar energy development 

rights-of-way; 

7. § 2806.60, to provide information 

on rents for wind energy development 

rights-of-way; 

8. Subpart 2809, to establish a 

competitive process for leasing public 

lands inside designated leasing areas for 

solar and wind energy development; 

9. Provisions in 43 CFR part 2800 

pertaining to transmission lines with a 

capacity of 100 kV or more and any nonoil or gas pipeline 10 inches or more in 

diameter; and 

10. Provisions in 43 CFR part 2880 

pertaining to all oil and gas pipelines 10 

inches or more in diameter. 

In addition to these amendments, the 

BLM is proposing technical changes, 

corrections, and clarifications to the 

regulations at 43 CFR parts 2800 and 

2880. For example, the BLM is codifying 

the cost recovery authority delegated by 

Secretarial Order 3327. See the 

explanation of the proposed changes to 

‘‘Management Overhead Costs’’ for more 

discussion on this topic. 

III. Advance Notice of Proposed 

Rulemaking for the Competitive Solar 

and Wind Energy Development 

Regulations 

To solicit public comments and 

suggestions to assist the BLM in 

preparing the proposed regulations for 

competitive solar and wind energy 

leasing, the BLM published an ANPR in 

the Federal Register on December 29, 

2011, and provided a 60-day comment 

period ending on February 27, 2012 (76 

FR 81906). The BLM asked generally for 

comments regarding the content and 

structure of a competitive process for 

solar and wind energy development and 

specifically requested comments 

responding to the following nine 

questions: 

1. How a competitive process should 

be structured for leasing lands within 

designated solar or wind energy 

development leasing areas? 

2. Should a competitive leasing 

process be implemented for public 

lands outside of designated solar or 

wind energy development leasing areas? 

If so, how should such a competitive 

leasing process be structured? 

3. What competitive bidding 

procedures should the BLM adopt? 

4. What is the appropriate term for a 

competitive solar energy ROW lease? 

5. What is the appropriate term for a 

competitive wind energy ROW lease? 

6. Should nomination fees be 

established for the competitive process? 

If so, how should the fees be 

determined? 

7. How should the bidding process for 

competitive solar and wind energy ROW 

leases be structured to ensure receipt of 

fair market value? 

8. Should a standard performance 

bond be required for competitive solar 

and wind energy ROW leases and how 

should the bond amount be determined? 

9. What diligent development 

requirements should be included in 

competitive solar and wind energy 

right-of-way leases? 

In response to the above questions, 76 

industry representatives, environmental 

groups, individuals, and local and State 

governments provided comments and 

suggestions. The BLM used this 

information to develop many 

components of this proposed rule. The 

substantive comments received are 

grouped together by the question asked 

and are addressed below. An 

introductory ‘‘General Comments’’ 

section responds to some comments that 

did not address the above nine 

questions. Comments received from this 

ANPR were directed at the 2800 

regulations, specifically at solar and 

wind energy competitive leasing. Other 

provisions of this proposed rule were 

not raised in the ANPR. 

General Comments 

Several comments addressed topics 

other than those raised by the nine 

questions in the ANPR. These 

comments discuss the lease rental rates, 

valuing project proposals based upon 

qualitative and quantitative factors, 

adequate implementation of resource 

protection measures, and providing 

incentives for the leasing of low conflict 

development areas. 

Some comments discussed grant and 

lease rental rates. Rates discussed in this 

proposed rule would be established 

pursuant to FLPMA and would be based 

upon known market data and 

calculations that are confirmed by a 

survey of market rental rates and 

comparable commercial practices. 

Provisions for updating the rental rates 

for solar and wind energy rights-of-way 

are included in this proposed rule and 

would be incorporated within any BLM 

grant or lease. Under the proposed rule, 

the BLM proposes a payment structure 

that includes both acreage rent and a 

MW capacity fee for solar and wind 

energy right-of-way authorizations. 

Some comments expressed concern 

that if the BLM were to adopt a 

competitive leasing process, the agency 

might not adequately evaluate the 

potential impacts to resources on 

affected public lands. The BLM has 

structured its proposed competitive 

processes to obtain fair market value, 

while also promoting thoughtful and 

reasonable development of the public 

lands and protecting important resource 

and other values. If a competitive lease 

is issued, the BLM would continue to 

comply with all NEPA and other 

statutory requirements when reviewing 

project-specific plans. The designated 

leasing areas, which are preferred areas 

for solar or wind energy development, 

would be identified through the BLM 

land use planning process (43 CFR part 

1600), supported by a NEPA analysis, 

and designed to minimize impacts to 

environmental and cultural resources. 

In addition to the environmental review 

associated with the designation of 

leasing areas, site specific 

environmental analyses and other 

appropriate studies would be done for 

each proposed lease site as stated in the 

proposed rule at paragraph 

2809.12(b)(1). 

Likewise, several comments voiced 

concern that the BLM would be unable 

to adequately mitigate impacts to 

resources if it were to adopt a 

competitive leasing process. All grants 

and leases for solar and wind energy 

right-of-way authorizations would be 

expected to implement best 

management practices and mitigation as 

identified within the ROD for the Wind 

Programmatic EIS (http:// 

windeis.anl.gov/) or Solar Programmatic 

EIS (http://solareis.anl.gov/). 

Furthermore, any additional sitespecific NEPA requirements associated 

with an individual project could result 

in the identification of further 

mitigation measures, as applicable. It is 

intended that this review would provide 


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the careful balance between the 

development and protection of the 

public lands that the BLM is charged 

with overseeing. 

There were multiple comments 

regarding the BLM’s proposed 

incentives for development in 

designated leasing areas. The BLM 

conducts an environmental review 

when identifying a designated leasing 

area through the planning process. This 

environmental review supports the 

BLM’s decision to identify a designated 

leasing area. Project specific 

environmental reviews would be tiered 

from or incorporated by reference from 

this initial review to the extent 

practicable. The completion of this 

environmental review would be an 

incentive to develop facilities in 

designated leasing areas by reducing 

uncertainty regarding expected project 

schedules, potential resource conflicts, 

and mitigation measures, all of which 

could add considerably to a project 

development timeline and cost if not 

already captured in BLM’s 

environmental review. 

Some commenters suggested 

development of an internal cash flow 

model for how the BLM would retain 

and redistribute collected funds within 

the agency. Currently, the BLM does not 

have authority under FLPMA to retain 

rents or fees collected from right-of-way 

grantees for the use of public lands. It 

is required to distribute such funds to 

the U.S. Treasury. The BLM’s collection 

of money as a bid, fee, or rent does not 

result in the BLM retaining such funds. 

The BLM may retain funds when 

collecting reimbursement for processing 

or monitoring costs under Sections 

304(b) and 504(g) of FLPMA or when 

the BLM holds funds for a performance 

and reclamation bond. Funds held for 

purposes of a performance and 

reclamation bond are tied to the 

performance requirements of an 

authorization, which would include 

costs such as the reclamation and 

restoration of the right-of-way. 

Question 1. How should a competitive 

process be structured for leasing lands 

within designated solar or wind energy 

development areas? 

Comments responding to Question 1 

of the ANPR discussed State and local 

government involvement in the process, 

multi-factor bidding, and revenue 

sharing with State and local 

governments. 

One comment recommended that the 

BLM coordinate with and consider the 

regulations of State, local, and tribal 

governments during the application 

process. The BLM’s proposed rule does 

not affect the authority of State, local, or 

tribal governments. The BLM’s ongoing 

objective is to coordinate with State, 

local, or tribal governments to the fullest 

extent possible when considering the 

issuance of rights-of-way across Federal 

public lands. Under the existing 

regulations, applicants are encouraged 

to hold a pre-application meeting with 

the BLM and the BLM may share this 

information with State, local, and tribal 

governments (see section 2804.10). The 

proposed rule would require all 

applicants for solar and wind energy 

(and for any transmission line with a 

capacity of 100 kV or more, or any 

pipeline 10 inches or more in diameter), 

as part of the pre-application meetings, 

to coordinate with appropriate Federal 

and State agencies and tribal and local 

governments. 

Some comments discussed 

competitive bidding processes to be 

applied outside of a designated leasing 

area and the allocation of revenue 

generated by an authorization. Of the 

several bidding processes discussed in 

the ANPR, the multi-factor bidding 

proposal received the most discussion. 

After review of comments and internal 

discussions, the BLM determined the 

term ‘‘multi-factor bidding’’ did not 

appropriately describe the BLM’s 

procedures. It has been modified to 

align with its intent, which is to provide 

an offset to the successful bidder after 

competitive bidding has occurred. The 

variable offsets are discussed in the 

section-by-section analysis under 

section 2809.16. Bidding options are 

discussed later in the section-by-section 

analysis part of this proposed rule. 

Section 2804.30 outlines a competitive 

leasing process for solar and wind 

energy development outside of 

designated leasing areas similar to the 

process in subpart 2809 for lands inside 

designated leasing areas. The BLM 

would use the process in section 

2804.30 when there are two or more 

competing applications, or may start the 

process on its own initiative. The BLM 

may receive interest from the public or 

industry for development in an area. 

The BLM may also offer a parcel to help 

a state reach its goals for developing 

renewable energy. 

Under FLPMA, revenues generated 

from right-of-way rentals are deposited 

in the U.S. Treasury. Currently, there is 

no authority to distribute rents, fees, or 

bid amounts to State or local 

governments, or to the BLM. However, 

the proposed rule would not limit the 

ability of the BLM or other Federal 

agencies to seek reimbursement from 

project proponents for the costs 

associated with processing, inspecting, 

and monitoring right-of-way 

authorizations. In fact, the existing 

regulations already require 

reimbursement of costs associated with 

processing, inspecting, and monitoring 

rights-of-way under section 2804.14. 

Question 2. Should a competitive 

leasing process be implemented for 

public lands outside of designated solar 

or wind energy development leasing 

areas? If so, how should such a 

competitive leasing process be 

structured? 

Several commenters discussed their 

interest in the BLM’s existing 

competitive process under section 

2804.23 to remain intact and continue 

forward. They also had concerns about 

the recent processes established by the 

BLM under the Solar Programmatic EIS 

and ROD and about eminent domain 

actions. Other commenters proposed the 

use of a sliding scale for a nomination 

fee based upon the amount of 

environmental risk associated with a 

proposal. Comments were also 

submitted suggesting that the BLM 

should allow development outside of 

designated leasing areas based upon a 

determination of the project’s economic 

viability. 

The proposed rule would codify new 

procedures for the competitive process 

currently being implemented on public 

lands outside of designated leasing areas 

and establish a similar process for lands 

inside designated leasing areas. The 

proposed rule would also clarify the 

circumstances in which a competitive 

process may be used outside of 

designated leasing areas. 

When developing the proposed rule, 

the BLM considered the solar variance 

process that was established by the 

Solar Programmatic EIS and ROD. The 

Solar Programmatic EIS and ROD 

identified variance areas as lands 

outside of SEZs (a type of designated 

leasing area) that may be suitable for 

solar energy development. The Solar 

Programmatic EIS and ROD accounted 

for avoidance and exclusion areas when 

identifying variance lands. The variance 

process established in the Solar 

Programmatic EIS ROD is the process by 

which the BLM evaluates applications 

for solar energy development in 

variance areas. The existing solar 

variance process and proposed rule are 

intended to be compatible and 

complement each other when the BLM 

processes an application for solar energy 

development. 

One commenter expressed concern 

over potential BLM eminent domain 

actions on private land in areas where 

public and private lands are 

interspersed. The BLM’s authority does 

not extend beyond the boundaries of 

BLM managed public lands. The 


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proposed rule is intended to provide 

further direction on the management of 

public lands and should not be 

interpreted as applying to lands 

managed or owned by others. To the 

extent private lands are relevant to or 

necessary for a proposed use of public 

lands, it would be the responsibility of 

an applicant who proposes the use of 

BLM managed public lands to also 

secure the necessary rights over the 

adjacent private lands. No authorization 

from the BLM can confer such rights. 

Some comments expressed concern 

that the BLM was determining whether 

projects are economically viable if 

located inside or outside a designated 

leasing area and questioned the 

differences in environmental conditions 

between lands inside and outside a 

designated leasing area. 

The BLM would identify areas that 

have a high potential for solar or wind 

energy development, but would not 

determine the economic viability of 

developing a project in these areas. Any 

determination of a project’s economic 

viability would be left to the prospective 

developers. 

The BLM would, however, identify 

locations that have fewer and less 

significant adverse resource impacts and 

are suitable for solar or wind energy 

development. The BLM would identify 

these areas through the land use 

planning process, which includes a 

supporting environmental review. The 

BLM and the Department issued the 

Solar Programmatic EIS ROD, which 

identified 17 SEZs on BLM managed 

lands, modified 89 land use plans, and 

described the BLM’s intent to use a 

competitive process to facilitate solar 

energy development projects in SEZs. 

Lands outside of designated leasing 

areas are not closed to solar and wind 

energy development, but would not 

benefit from the completed 

environmental review of the land use 

planning process and may, therefore, 

have greater resource conflicts. Greater 

resource conflicts are likely to increase 

an applicant’s costs, as well as the BLM 

review period. 

Outside of designated leasing areas, 

the BLM would prioritize solar and 

wind energy applications based upon 

categories of screening criteria, as 

discussed in the section-by-section 

analysis. While this is not a sliding scale 

as suggested by commenters, an 

application may be reprioritized based 

on new information provided or 

identified in the processing of an 

application. Prioritizing applications 

would focus the BLM’s efforts on those 

applications that are likely to have 

lesser resource conflicts before those 

with potentially greater impacts. 

Question 3. What competitive bidding 

procedures should the BLM adopt? 

In response to the request for 

comments on competitive bidding 

procedures, the BLM received several 

recommendations to model the 

competitive procedures of solar and 

wind energy development after the 

geothermal or oil and gas leasing 

programs. One commenter discussed the 

merit in allowing bidding on single or 

multiple tracts at a time. In addition to 

the recommendations for methods of 

competitive procedures, several 

commenters discussed appropriate 

methodologies for valuing public lands 

made available for competitive offering. 

When developing the proposed 

competitive bid procedures, the BLM 

considered the bidding processes used 

by programs for offshore renewable 

energy, onshore oil and gas, and 

geothermal mineral leasing, and also 

past competitive actions for rights-ofway. Though these programs are guided 

by different statutes, regulations, and 

policies, the BLM’s proposed 

competitive bid processes for rights-ofway have incorporated procedures used 

by the oil and gas and geothermal 

leasing programs, some of which were 

described in the ANPR. For example, 

similar to the BLM’s oil and gas 

program, a notice placed in both a local 

newspaper and the Federal Register 

would provide specific instructions to 

interested parties on the required 

methodology and procedures to file for 

a pending competitive offer. 

The BLM, through this proposed rule, 

intends to identify the methods by 

which it may competitively offer rightsof-way inside designated leasing areas. 

However, the proposed rule is written 

so as to not unnecessarily limit the 

BLM’s ability to competitively offer 

lands for solar and wind energy 

development. The BLM may tailor the 

competitive leasing offer to meet the 

needs of the agency, prospective 

developers, and the interests of the 

public. For example, when a notice is 

provided in a local newspaper and the 

Federal Register, the BLM could 

announce whether it would accept bids 

on single or multiple tracts of public 

land and whether variable offsets would 

be provided for a preferred technology. 

Questions 4 and 5. What is the 

appropriate term for a competitive solar 

energy ROW lease? What is the 

appropriate term for a competitive wind 

energy ROW lease? 

Most of the commenters agreed that 

the duration of both solar and wind 

energy development right-of-way lease 

terms should be no less than 20 years 

and no more than 30 years. The 

proposed rule would establish a term of 

30 years inside designated leasing areas, 

and up to 30 years outside of designated 

leasing areas. 

Question 6. Should nomination fees be 

established for the competitive process? 

If so, how should the fees be 

determined? 

Most commenters felt that a 

nomination fee should be established 

for a competitive process for solar and 

wind energy development. However, 

those commenters that agreed with a 

nomination fee had different 

suggestions for how the nomination fee 

should be configured. Most commenters 

indicated that they would support a 

nomination fee if the fee was 

reasonable. The BLM’s proposed 

nomination fees are discussed in the 

section-by-section analysis under 

section 2809.11. 

Question 7. How should the bidding 

process for competitive solar and wind 

ROW leases be structured to ensure 

receipt of fair market value? 

The BLM received a variety of 

different comments discussing Question 

7. Some commenters discussed 

instituting a bidding process while 

others opposed it. Some commenters 

recommended that the agency consider 

not implementing a bidding process 

once an application is submitted. 

The BLM considered not 

implementing a competitive process 

once an application for solar or wind 

energy development has been 

submitted. Existing regulations allow 

the BLM to implement a competitive 

process when there are two or more 

competing applications for the same 

facility or system. The rules would still 

have this provision, and under the 

proposal, the BLM would also be able to 

implement a competitive process on its 

own initiative. FLPMA directs the BLM 

to receive fair market value for right-ofway authorizations on the public lands 

and the recommendation not to offer 

rights-of-way competitively could 

prevent the BLM from doing so. The 

BLM is more likely to receive fair 

market value through a combination of 

the competitive process and the rents 

and MW capacity fees described in this 

proposed rule. Section 2804.23 

describes when the BLM would 

implement a competitive process 

outside of designated leasing areas. 

Section 2809.19 describes how the BLM 

would process applications on lands 

that are subsequently identified as 

designated leasing areas. 

Some commenters suggested 

alternative methodologies for 


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determining the value of using public 

lands for solar or wind energy 

development, including valuing a 

proposed right-of-way based on adjacent 

land uses or the appraised value of the 

past uses of the land. 

In this rule, the BLM proposes a 

structure where the fair market value of 

a right-of-way authorization would be 

reflected by all of the components of the 

competitive offer i.e., the minimum bid, 

bonus bid, acreage rent, and a MW 

capacity fee. The combination of these 

components is intended to result in the 

Government’s receipt of fair market 

value for the use of the public lands for 

solar and wind energy development. 

The BLM has determined competitive 

offers provide a more accurate 

assessment of fair market value for solar 

and wind energy rights-of-way than 

valuations of adjacent lands. 

Other commenters indicated that the 

BLM should develop an internal cash 

flow model for specific technology 

types, on a State-by-State or regional 

basis to achieve fair market value. 

Comments also indicated that the BLM 

should match or stay above other 

competitively offered lease prices, 

utilizing a minimum bid rate. 

As part of this rule, the BLM has 

proposed rents and fees specific to the 

different solar and wind energy 

technology types. The BLM proposes a 

MW capacity fee, based on the number 

of approved MWs of capacity for the 

energy development, and an acreage 

rent, based on the number of acres 

authorized for the right-of-way. The 

acreage rent would be based on the 

existing linear rent schedule, which is 

determined on a regional basis to reflect 

the value of the land. The MW capacity 

fees and acreage rents would be 

different for solar and wind energy 

based upon technology type and 

encumbrance factors. See sections 

2806.50 and 2806.60 for more 

information on the solar and wind rightof-way rents and fees. The proposed 

combination of rent, MW capacity fees, 

and bids proposed by this rule is not 

intended to require a value greater than 

other competitively offered parcels, but 

rather to represent fair market value. 

Question 8. Should a standard 

performance bond be required for 

competitive solar and wind energy ROW 

leases and how should the bond amount 

be determined? 

Most commenters stated that a 

standard performance bond should be 

required for competitive solar and wind 

energy development right-of-way leases. 

Several comments suggested that a bond 

should be required for the cost of 

restoring the land to its original 

condition. Other comments suggested 

that bond amounts should be based on 

project development costs. Several 

comments also suggested that a bond 

requirement would encourage viable 

proposed solar and wind energy 

development projects by committed 

applicants. There were a few comments 

suggesting that bonds should not be 

required because of uncertainty as to 

what bonds were to cover, and other 

comments recommended that the BLM 

should continue to use its existing bond 

requirements. 

The proposed rule describes bonding 

requirements and addresses the 

elements the BLM would consider when 

establishing a bond amount. The BLM 

considered the comments submitted 

under the ANPR and determined that a 

bond would be required for each solar 

and wind energy authorization, 

including a minimum bond amount. A 

minimum bond amount would be 

established for grants on lands outside 

of designated leasing areas. This 

minimum bond amount would be the 

same as the standard bond amount for 

leases on lands inside designated 

leasing areas. These amounts are 

discussed in greater detail in the 

section-by-section analysis under 

section 2805.20. The bond amount for 

grants on lands outside designated 

leasing areas would be based on a 

reclamation cost estimate (RCE), which 

estimates the costs for reclaiming and 

restoring the public lands. This amount 

would include the administrative costs 

for the BLM to administer a contract to 

reclaim and restore the lands in the 

authorization. The minimum bond 

amount is based on an average of RCEs 

for existing projects. 

The BLM considered establishing 

bond amounts based upon other costs, 

such as costs to develop a project. 

However, the BLM rejected this idea 

since these and other suggested costs 

and methods for establishing bond 

amounts were based on construction 

costs and were not specific to the 

reclamation and restoration 

requirements of a project or an 

indication of reasonable costs to do so 

on BLM-managed public lands. The 

proposed minimum bond amounts are 

based on an average of the RCEs for 

existing projects. 

Question 9. What diligent development 

requirements should be included in 

competitive solar and wind energy rightof-way leases? 

Comments on diligent development 

requirements for leases focused on the 

BLM notification to potential bidders 

before a competitive offer is made. 

Comments expressed interest in 

timeframes for the start and completion 

of development requirements, such as 

construction deadlines, once a lease is 

offered to the successful bidder. Some 

comments indicated that the BLM 

should enforce benchmarks, deadlines, 

or other criteria. 

The BLM is proposing diligent 

development requirements for a 

competitively offered lease for solar or 

wind energy development. For example, 

the proposed regulations would require 

that a plan of development (POD) be 

submitted to the BLM within 2 years 

and that the proposed energy 

development be operational within 10 

years of the lease issuance. Other sitespecific requirements may be disclosed 

in the notice offering the lands for a 

competitive offer. 

Existing regulations (section 2807.16) 

provide the BLM with authority to 

suspend or terminate a right-of-way 

authorization if the holder does not 

comply with the terms and conditions 

of the grant, such as a POD. A 

suspension or termination of a solar or 

wind energy right-of-way would cause a 

right-of-way holder to lose profits and 

potentially increase their cost of 

operations. The BLM does not propose 

to establish monetary penalties to 

enforce diligent development or 

established benchmarks or criteria. 

IV. General Discussion and Section-bySection Analysis 

General Discussion 

The BLM’s existing right-of-way 

regulations provide only limited 

authority to use a competitive bidding 

process when authorizing solar and 

wind renewable energy facilities. 

Specifically, the existing regulations 

(see 43 CFR 2804.23(c)) allow the BLM 

to use a competitive bidding process 

only when it has already received two 

or more competing right-of-way 

applications for the same facility or 

system. This proposed rule would 

expand the BLM’s ability to use 

competitive bidding processes, 

including competitive bidding for solar 

and wind energy development grants 

and leases. While this proposed rule 

includes provisions that apply to all 

rights-of-way, the focus of this rule is 

primarily on solar and wind energy 

development. It would codify existing 

BLM policies and provide additional 

detail pertaining to a competitive 

process for seeking solar or wind energy 

development grants outside designated 

leasing areas. In addition, it would 

establish a competitive process for 

seeking solar and wind energy 

development leases inside designated 

leasing areas. 


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The term ‘‘designated leasing area’’ 

would be defined at section 2801.5(b) as 

‘‘a parcel of land with specific 

boundaries identified by the BLM land 

use planning process as being a 

preferred location for solar or wind 

energy development that must be leased 

competitively.’’ Similar to right-of-way 

corridors, designated leasing areas 

would be identified as appropriate areas 

for development while minimizing 

cultural and environmental impacts 

through avoidance, minimization, and 

compensatory mitigation. The BLM’s 

preliminary review of these areas, and 

its determinations that these areas are 

suitable for renewable energy 

development, are intended to provide 

an incentive to renewable energy 

developers looking for a potential site to 

develop. Site-specific NEPA analysis 

would still be required for each right-ofway, but the BLM’s preliminary review 

and land management suitability 

determinations would streamline 

subsequent site-specific NEPA analysis 

and could save the developer time and 

money. 

Solar and wind energy development 

inside designated leasing areas would 

be authorized using the competitive 

offer process that would be established 

in proposed 43 CFR subpart 2809. 

Another competitive process for lands 

outside designated leasing areas would 

be established in proposed section 

2804.30. Both processes would enable 

the BLM, on its own initiative, to offer 

lands competitively for solar or wind 

energy development. 

After deciding to offer either type of 

lands competitively, the BLM would 

publish a notice of competitive offer in 

accordance with new section 2804.30(d) 

that would be used in conducting the 

auction or competitive bidding. This 

notice would include the date, time, and 

location, as well as the process and 

procedures of the competitive offer. The 

BLM would accept a bid only if it 

included payment for the minimum bid 

and at least 20 percent of the bonus bid. 

The minimum bid would consist of: 

(1) Administrative costs incurred by the 

BLM and other Federal agencies in 

preparing for and conducting the 

competitive offer; and (2) An amount 

determined by the BLM based on known 

or potential values of the parcel. The 

bonus bid would consist of any dollar 

amount that a bidder decides to bid in 

addition to the minimum bid. 

For lands outside designated leasing 

areas, the bidder who submits the 

highest total bid would become the 

preferred applicant. The preferred 

applicant is the only party who may 

submit a right-of-way application for the 

parcel identified in the notice of 

competitive offer on which it was the 

highest bidder. A preferred applicant 

who completes the application process 

may be offered a grant, at the BLM’s 

discretion. 

In contrast, for lands inside 

designated leasing areas, the bidder who 

submits the highest total bid would be 

offered a lease, provided that 

qualifications and payment terms are 

met. The BLM would offer a lease in 

designated leasing areas as an incentive 

for development in these preferred 

areas. These lands would have 

undergone sufficient cultural and 

environmental review to offer the 

successful bidder a lease that ordinarily 

would not require further evaluation. As 

noted, site-specific NEPA analysis 

would still be required for each right-ofway and could be tiered from the BLM’s 

preliminary review and land 

management suitability determinations. 

This streamlined process would save 

the applicant time and money. Lands 

outside of designated leasing areas 

would not have yet undergone the 

preliminary environmental and cultural 

review provided by the planning 

process. 

In addition, new section 2809.16 of 

this proposed rule would provide that a 

successful bidder for lands inside a 

designated leasing area may qualify for 

variable offsets totaling up to 20 percent 

of the total bid. These offsets are 

intended to provide an incentive for 

development inside designated leasing 

areas and benefits to the general public. 

As envisioned, such benefits to the 

public would include better resource 

protection, more efficient use of the 

public lands, and an increased 

likelihood of project development. 

Requirements for qualifying for such 

offsets would be outlined specifically in 

the notice of competitive offer. 

Competitive offers for lands outside of 

designated leasing areas would not 

include variable offsets. These offsets 

are discussed in detail in the section-bysection analysis of this preamble. 

The rent for solar and wind energy 

grants and leases would comprise an 

acreage rent and a MW capacity fee. The 

methodology used to determine rents 

and fees for solar and wind energy, 

inside and outside of designated leasing 

areas, are generally the same. The main 

differences between acreage rents for 

lands outside and inside designated 

leasing areas are when the acreage rent 

is adjusted and how it is phased in. For 

lands outside of designated leasing 

areas, the acreage rent would be 

updated every year using the BLM’s 

linear rent schedule. For lands inside 

designated leasing areas, the acreage 

rent would be updated in year 11 of the 

lease, and every 10 years thereafter, 

using the acreage rent schedule in place 

at the time of the adjustment. 

The MW capacity fees would be 

phased in over the course of the grant 

or lease based on changes to the MW 

rate. There would be a 3-year phase-in 

period for grants outside of designated 

leasing areas, and a 10-year phase-in 

period for leases inside designated 

leasing areas. The provisions describing 

how acreage rents and MW capacity fees 

would be phased in are explained in 

greater detail in the section-by-section 

analysis. 

Bonding requirements would also 

differ. Inside designated leasing areas, 

the standard bond amount for solar 

energy developments would be $10,000 

per acre and wind energy developments 

would be $20,000 per authorized 

turbine. These same amounts would be 

the minimum requirements for bonds 

outside designated leasing areas, and 

those minimum bonds could be subject 

to adjustment by the BLM under 

proposed section 2805.20(a). These 

bond amounts are based on an average 

of the bond requirements of existing 

solar or wind energy projects. The 

minimum amount outside of designated 

leasing areas would help ensure that the 

BLM receives an adequate bond to 

protect the public lands. Since the BLM 

would identify designated leasing areas 

as areas with lesser and fewer 

environmental and cultural resource 

conflicts, the BLM proposes a standard 

bond amount for solar or wind energy 

developments inside those areas. The 

BLM expects that if a RCE were 

prepared for a project inside a 

designated leasing area, the amount 

would not deviate significantly from the 

standard bond amount. 

The BLM intends to provide an 

additional level of certainty for right-ofway holders inside designated leasing 

areas and streamline the development 

process. The potential lessee could save 

time and money by not preparing a RCE. 

Under existing regulations, the BLM 

may adjust a bond amount to ensure the 

bond adequately protects the lands in a 

right-of-way. The BLM does not intend 

to adjust the standard bond amount for 

solar and wind energy leases unless 

there is a change in use. A change in use 

would be when a grant is amended. The 

removal of a wind turbine and 

subsequent reclamation could result in 

a decreased bond amount. The 

expansion of a lease area for a solar 

project could result in an increased 

bond amount. While the BLM intends to 

streamline solar and wind energy 

development on public lands, the BLM 

would maintain the ability to protect 

public lands. 


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Title V of FLPMA authorizes the BLM 

to issue right-of-way grants, leases, and 

easements. The majority of BLM-issued 

rights-of-way are grants. The BLM 

intends to differentiate the rights-of-way 

issued under subpart 2809 as leases, 

which would be a type of grant with 

specific requirements. Communication 

site rights-of-way are another example 

of BLM-issued leases, which have 

specific regulatory requirements for rent 

and subletting. 

The following table summarizes the 

differences between grants outside 

designated leasing areas and leases 

inside designated leasing areas: 

DIFFERENCES IN PROCESSES, TERMS, AND CONDITIONS BETWEEN RIGHT-OF-WAY GRANTS AND LEASES FOR SOLAR AND

WIND ENERGY DEVELOPMENT

Grants (outside designated 

leasing areas) 

Leases (inside designated 

leasing areas) Applicable regulations 

All applications 

Pre-application meetings ................. Mandatory for all applications ...... Does not apply ............................. 43 CFR 2804.10. 

Screening Criteria ........................... Applies to all applications ............ Does not apply ............................. 43 CFR 2804.25 and 2804.35. 

Competitive Process 

BLM would identify parcels for competitive offer.When there are 2 or more competing applications, or on the 

BLM’s initiative.

After issuing a call for nominations, or on the BLM’s initiative.43 CFR 2804.30 and subpart 

2809. 

Variable offset ................................. Does not apply ............................. Each offset (and percent) described in Notice of Competitive 

Offer; total offset cannot exceed 20 percent of total bid.

43 CFR 2809.16. 

The successful bidder: .................... Becomes the preferred applicant 

and may apply for a grant.

Would be offered a lease if requirements are met.43 CFR 2804.30(f) and 2809.15. 

Terms and Conditions 

Assignment rights ............................ Yes ............................................... Yes ............................................... 43 CFR 2807.21 and 2809.18(f). 

Due Diligence .................................. 2 years to begin construction, 24 

months to complete construction.

2 years to submit POD, 7 years 

to complete construction.

43 CFR 2805.12(c)(3) and 

2809.18(g). 

Bonding ........................................... Minimum bond of $10,000 per 

acre for solar/$ 20,000 per authorized turbine for wind.

Standard bond of $10,000 per 

acre for solar/$ 20,000 per authorized turbine for wind.

43 CFR 2805.20. 

Acreage Rent .................................. Adjusted annually ......................... Adjusted every 10 years. ............. 43 CFR 2806.50 and 2806.60. 

MW Fee Phase-ins ......................... 3 years at 25%/50%/100% .......... 10 years at 50%, then 100% all 

subsequent years.

43 CFR 2806.50 and 2806.60. 

Term Length of Grants and Leases Up to 30 years ............................. 30 years ....................................... 43 CFR 2805.11 and 2809.18(a). 

The above identified differences 

between outside and inside designated 

leasing areas are intended to provide 

incentives for development inside 

designated leasing areas. The BLM is 

soliciting comments as to whether these 

identified differences and incentives are 

appropriate for the designated leasing 

areas, if other incentives may exist, and 

as to whether the identified timeframes, 

amounts, rationale, and processes are 

appropriate for such areas. 

The BLM believes that the Federal 

Government will receive fair market 

value for all of the uses of public lands 

that could be authorized by the 

proposed rule (see 43 U.S.C. 1701 

(a)(9)). The salient features of fair 

market value as referenced by the 

Uniform Appraisal Standards for 

Federal Land Acquisitions (1992) and 

the Appraisal of Real Estate (1992) are 

as follows: 

1. Fair market value is characterized 

as, or is representative of, a transaction 

between a knowledgeable buyer and a 

knowledgeable seller; 

2. Neither buyer nor seller is obligated 

or under duress to buy or sell; 

3. Fair market value is determined by 

a competitive market rather than the 

personal or inherent value of the 

property; 

4. The property is exposed to a 

competitive market for a reasonable 

time; 

5. Market value is only that value 

transferable from owner to owner. In 

most cases this means private market 

value; and 

6. Properties lacking buyer 

competition, which are likely to become 

part of a larger competition property, 

can be given an estimated market value 

as part of the larger property. In 

accordance with the market concept, the 

price paid for a similar property in an 

arm’s-length transaction is accepted as 

the best evidence of fair market value. 

Factors to be considered in estimating 

value include probable demand, 

property location, and property use. 

This proposed rule would establish a 

framework through which the United 

States would obtain fair market value 

for the use of the public lands (See 43 

U.S.C. 1701(a)(9) and 43 U.S.C. 1764(g)). 

The procedures in the proposed rule 

have been designed to facilitate the 

BLM’s determination of fair market 

value through a combination of acreage 

rent (based on the number and value of 

acres within the authorized area), MW 

capacity fees (based on approved 

capacity of the solar or wind energy 

project), and any minimum and bonus 

bids offered during the competitive 

process. Although the BLM would 

collect administrative costs as a 

component of the minimum bid, these 

costs are not part of the fair market 

value of a parcel and would be 

reimbursement for reasonable costs for 

processing the authorization. 

Drawing upon its experience with 

solar and wind energy development on 

the public lands to date, the BLM has 

given careful consideration to the 

procedures to collect fair market value 

through a combination of rents, MW 

capacity fees, and bids (not including 


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Federal administrative costs). While the 

BLM’s current right-of-way regulations 

provide only limited authority for the 

agency to use a competitive bidding 

process, through the proposed rule the 

BLM intends to develop a more detailed 

set of competitive procedures that will 

enhance the agency’s ability to identify 

and receive fair market value by 

collecting minimum and bonus bids for 

solar and wind energy authorizations. 

Currently, the BLM does not have 

authority to retain revenues collected 

from such developments as payment to 

the government for the use of public 

lands. Revenue collected for solar or 

wind energy developments will be sent 

to the U.S. Treasury and not retained by 

the BLM. This revenue includes acreage 

rents, MW capacity fees, minimum bids 

and bonus bids (not including Federal 

administrative costs), application filing 

fees, and nomination filing fees. 

However, some funds received by the 

BLM for solar and wind energy 

developments would be retained or held 

by the BLM for its use. Such funds 

would include those received for cost 

recovery for the pre-application period 

and the processing of an application or 

the monitoring of an authorization, 

bonds, Federal administrative costs for 

a competitive offer, and penalty fees for 

the late payment of rent and MW 

capacity fees. 

Annual rent payments are required for 

all solar and wind energy grants and 

leases. Acreage rent would consist of 

payments based on the value of the 

underlying public land encumbered by 

a particular project, which the proposed 

rule addresses through a set of updated 

and more detailed methods. Under the 

proposed rule, the BLM would identify 

acreage rent as described in the sectionby-section discussion at 2806.50 and 

2806.60 of this preamble. For lands 

outside of designated leasing areas, the 

acreage rent would be updated every 

year using the BLM’s linear rent 

schedule. For lands inside designated 

leasing areas, the acreage rent is 

updated in year 11, and every 10 years 

thereafter, using the acreage rent 

schedule in place at the time of the 

adjustment. 

The BLM would also establish a MW 

capacity fee using payment schedules 

based on the approved generation 

capacity of solar and wind energy grants 

and leases. It has been the BLM’s 

practice under its current regulatory 

authority and policies to collect acreage 

and MW capacity payments as rent. 

Through this proposed rule the BLM is 

proposing to classify MW capacity 

payments as fees, since they reflect the 

incremental value added by the more 

intensive, industrial use of the land 

above and beyond the rural or 

agricultural value of the land in its 

unimproved state. In addition, in the 

BLM’s experience, the total MW 

generating capacity of a project is 

independent of the area of land it 

occupies since the generation capacity 

of a project is driven in significant part 

by the technology used. The acreage 

payment would remain classified as rent 

under the proposed rule as it is directly 

tied to the area of public lands 

encumbered by the project and its 

constraints to other uses on the public 

lands. 

Under the competitive process that 

the proposed rule would establish for 

lands outside designated leasing areas, 

the winning bid amount, combined with 

other potential payments to the BLM 

over the course of the period of the 

grant, may better represent the fair 

market value. If the BLM receives no 

bids in a competitive offer, the lands 

could be reoffered competitively or noncompetitively, if doing so is in the 

public interest (see paragraph 

2804.34(h)(4)). In the absence of 

comparable transactions, an appraisal 

could determine whether a fair market 

value was achieved. 

For lands inside designated leasing 

areas, the highest bidder at the 

competitive offer would become the 

lessee and may qualify for and receive 

variable offsets for up to 20 percent of 

the winning bid amount. Since the 

potential offsets would be known to 

bidders before a competitive offer, 

bidders should be willing to bid higher 

than they would without the offsets. 

Assuming a scenario with sufficient 

competition among bidders who qualify 

for offsets, the winning bid amount 

minus any offsets would theoretically be 

the same as what the winning bid would 

have been if no offsets were offered. In 

this case, the bonus bid and the other 

payments to the BLM over the course of 

the lease may better represent the fair 

market value for the lease. If one or few 

bidders qualify for offsets, then it is 

likely that the winning bid amount 

minus any offsets would be less than 

what the winning bid would have been 

if no offsets were offered. 

If the BLM receives no bids on a 

competitive offer, the lands could be 

reoffered competitively or noncompetitively, if doing so is in the 

public interest (see 2809.17(d)). An 

appraisal could verify whether a fair 

market value was achieved. 

Section-by-Section Analysis for Part 

2800 

This proposed rule would make the 

following changes in part 2800. The 

existing language found at section 

2809.10 would be revised and 

redesignated as paragraph 2807.17(d), 

while revised subpart 2809 would be 

devoted to solar and wind energy 

development in designated leasing 

areas. This proposed rule would also 

amend parts 2800 and 2880 to clarify 

the BLM’s administrative procedures 

used to process right-of-way grants and 

leases. These clarifications would 

ensure uniform application of the BLM’s 

procedures and requirements. A more 

in-depth discussion of the proposed 

changes is provided below. 

The following terms would be added 

to the definitions in section 2801.5: 

‘‘Acreage rent’’ is a new term that 

means rent assessed for solar and wind 

energy development grants and leases 

that is determined by the number of 

acres authorized by the grant or lease. 

The acreage rent is calculated by 

multiplying the number of acres 

(rounded up to the nearest tenth of an 

acre) within the authorized area times 

the per-acre county rate in effect at the 

time the authorization is issued. 

Provisions addressing adjustments in 

the acreage rent can be found in sections 

2806.52, 2806.54, 2806.62, and 2806.64. 

An example of how to calculate acreage 

rent is discussed in this preamble in the 

section-by-section analysis of paragraph 

2806.52(a)(1). 

‘‘Application filing fee’’ is a new term 

that means a nonrefundable filing fee 

specific to solar and wind energy rightof-way applications. The fee is proposed 

at $15 per acre for all solar and wind 

energy development applications and 

$2 per acre for wind site testing 

applications. The BLM would adjust the 

application filing fee once every 10 

years to account for inflation. Further 

discussion of application filing fees can 

be found in section 2804.12. 

‘‘Assignment’’ means the transfer, in 

whole or in part, of any right or interest 

in a right-of-way grant or lease from the 

holder (assignor) to a subsequent party 

(assignee) with the BLM’s written 

approval. The proposed rule would add 

this definition to section 2801.5 to help 

clarify existing regulations. A more 

detailed explanation of assignments and 

the changes made can be found under 

section 2807.21. 

‘‘Designated leasing area’’ is a new 

term that means a parcel of land with 

specific boundaries identified by the 

BLM’s land use plan process as being an 

area (e.g., SEZ) established, conducted 

through a landscape-scale approach, for 

the leasing of public lands for solar or 

wind energy development via a 

competitive offer. The competitive offer 

process may be found in the discussion 

of subpart 2809 under the section-bysection analysis contained in this 


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preamble. Further discussion of 

designated leasing areas can be found 

under section 2802.11. 

‘‘Designated right-of-way corridor’’ is 

a term that is defined in existing 

regulations. The word ‘‘linear’’ has been 

added to this definition to distinguish 

between these corridors and designated 

leasing areas. 

‘‘Management overhead costs’’ is 

defined in existing regulations as 

Federal expenditures associated with 

the BLM. Under Sections 304(b) and 

504(g) of FLPMA, the Secretary may 

require payments intended to reimburse 

the United States for reasonable costs 

with respect to applications and other 

documents relating to public lands. 

Secretarial Order (see Order 3327) 

delegated the Secretary’s authority 

under FLPMA to receive reimbursable 

payments to the bureaus and offices of 

the Department of the Interior. This 

definition has been expanded to include 

other Federal agencies. 

‘‘Megawatt capacity fee’’ is a new 

term meaning the fee paid in addition 

to the acreage rent for solar and wind 

development grants and leases based on 

the approved MW capacity of the solar 

or wind authorization. The MW 

capacity fee is calculated based on the 

MW capacity for an approved solar or 

wind energy project authorized by the 

BLM. Examples of how MW capacity 

fees are calculated may be found under 

the discussion of section 2806.56. While 

the acreage rent reflects the value of the 

land itself, the MW capacity fee reflects 

the value of the industrial use of the 

property to generate electricity. 

‘‘Megawatt rate’’ is a new term that 

means the price of each MW for various 

solar and wind energy technologies as 

determined by the MW rate schedule. 

The MW rate equals the number of 

hours per year multiplied by the net 

capacity factor multiplied by the MW 

per hour (MWh) price multiplied by the 

rate of return where: The net capacity 

factor is the average operational time 

divided by the average potential 

operational time of a solar or wind 

energy development facility multiplied 

by current technology efficiency rates. 

The net capacity factor for each 

technology type is: 

a. Photovoltaic (PV) = 20 percent; 

b. Concentrated photovoltaic (CVP) 

and concentrated solar power (CSP) = 

25 percent; 

c. Concentrated solar power with 

storage capacity of 3 hours or more = 30 

percent; and 

d. Wind energy = 35 percent. 

1. The MWh price equals the 5-year 

average of the annual weighted average 

wholesale price per MWh for the major 

Intercontinental Exchange (ICE) or its 

successor in interest at trading hubs 

serving the 11 Western States of the 

continental United States (see proposed 

paragraph 2806.52(b)). The wholesale 

price of electricity is tracked daily on 

the ICE and is readily accessible at 

https://beta.theice.com/marketdata/

reports/ReportCenter.shtml. Should the 

ICE or its successor in interest 

discontinue tracking the wholesale price 

of electricity, the 5-year average of the 

annual weighted average wholesale 

price per MWh would be calculated 

using comparable market prices. 

2. The rate of return is the 

relationship of income (to the property 

owner, or in this case the United States) 

to the revenue generated from 

authorized solar and wind energy 

development facilities, based on the 10- 

year average of the 20-year U.S. 

Treasury bond yield, rounded to the 

nearest one-half percent. 

3. The number of hours per year is a 

fixed number (i.e., 8,760 hours, the total 

number of hours in a 365-day year). 

The BLM is considering basing the net 

capacity factors for these technologies 

on an average of the annual capacity 

factors listed by Energy Information 

Administration (EIA). The EIA posts an 

average of the capacity factors on its 

Web site at http://www.eia.gov/

electricity/monthly/epm_table_

grapher.cfm?t=epmt_6_07_b. 

‘‘Performance and reclamation bond’’ 

is a new term that means the document 

provided by the holder of a right-of-way 

grant or lease that provides the 

appropriate financial guarantees, 

including cash, to cover potential 

liabilities or specific requirements 

identified by the BLM. This term is 

defined here to clarify the expectations 

of what a bond accomplishes. 

The definition would also explain 

which instruments would or would not 

be acceptable. Acceptable bond 

instruments include cash, cashiers or 

certified check, certificate or book entry 

deposits, negotiable U.S. Treasury 

securities, surety bonds from the 

approved list of sureties, and 

irrevocable letters of credit. The BLM 

would not accept a corporate guarantee. 

These provisions would codify the 

BLM’s existing procedures and 

practices. 

‘‘Reclamation cost estimate (RCE)’’ is 

a new term that means the report used 

by the BLM to estimate the costs to 

restore the intensive land uses on the 

right-of-way to a condition that would 

support pre-disturbance land uses. 

‘‘Right-of-way’’ is defined in existing 

regulations as the public lands the BLM 

authorizes a holder to use or occupy 

under a grant. The revised definition 

would describe the authorization as ‘‘a 

particular grant or lease.’’ 

‘‘Screening criteria for solar and wind 

energy development’’ is a term that 

refers to the policies and procedures 

that the BLM would use to prioritize 

how it processes solar and wind energy 

development right-of-way applications 

outside of designated leasing areas. 

Some examples of screening criteria are: 

1. Applications filed for areas 

specifically identified for solar or wind 

energy development, other than 

designated leasing areas; 

2. Previously disturbed areas or areas 

located adjacent to previously disturbed 

areas; 

3. Lands currently designated as 

Visual Resource Management (VRM) 

Class IV; and 

4. Lands identified for disposal in a 

BLM land use plan. 

Screening criteria for solar and wind 

energy development have been 

established by policy through IM 2011– 

61, and are further discussed in 

paragraph 2804.25(d)(2) and section 

2804.35 of this proposed rule. The IM 

may be found at http://www.blm.gov/

wo/st/en/prog/energy/renewable_

energy.html. 

‘‘Short term right-of-way grant’’ is a 

new term that means any grant issued 

for a term of 3 years or less for such uses 

as storage sites, construction sites and 

short-term site testing and monitoring 

activities. The holder may find the area 

unsuitable for development or the BLM 

may determine that a resource conflict 

exists in the area. 

The scope section of the regulations 

in part 2800 is clarified in the proposed 

changes to section 2801.6. The 

additional language clarifies that the 

regulations in this part would apply to 

all systems and facilities identified 

under paragraph 2801.9(a). 

Section 2801.9 explains when a grant 

or lease is required for systems or 

facilities on public lands. Paragraph 

2801.9(a)(4), systems for generation, 

transmission and distribution of 

electricity, would be expanded to 

include solar and wind energy 

development facilities and associated 

short-term actions. Language would also 

be added to paragraph 2801.9(a)(7) to 

allow any temporary or short-term 

surface-disturbing activities associated 

with any of the systems described in 

this section. A new paragraph (d) would 

be added to specifically describe the 

types of authorizations required for 

various components of solar and wind 

energy development projects. These are: 

1. Short term authorizations (term to 

not exceed 3 years), 

2. Long term right-of-way grants (up 

to 30 years); and 


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3. Solar and wind energy 

development leases (30 years). 

This paragraph also describes the type 

of authorizations for solar and wind 

projects located both inside and outside 

of designated leasing areas. 

Authorizations for solar or wind energy 

development located outside of a 

designated leasing area would be issued 

as a right-of-way grant for a term of up 

to 30 years. Authorizations located 

inside of a designated solar or wind 

energy development would be issued as 

a right-of-way lease for a term of 30 

years. 

Section 2802.11, which explains how 

the BLM designates right-of-way 

corridors, would be revised to include 

‘‘designated leasing areas.’’ The BLM 

would identify designated leasing areas 

as preferred areas for solar or wind 

energy development, based on a high 

potential for energy development and 

lesser resource impacts. This section 

provides the factors the BLM considers 

when determining which lands may be 

suitable for right-of-way corridors or 

designated leasing areas. These factors 

are unchanged from the existing 

regulations. 

Paragraphs (a), (b), (b)(3), (b)(4), (b)(6), 

(b)(7) and (d) of this section would be 

amended to include references to 

designated leasing areas. Existing 

regulations specifically mention rightof-way corridors in these paragraphs. 

These revisions would clarify that this 

section would apply to designated 

leasing areas in addition to linear rightof-way corridors. 

Existing section 2804.10 encourages 

prospective applicants for a right-of-way 

grant to schedule and hold a preapplication meeting. As revised in this 

proposed rule, section 2804.10 would 

continue to encourage pre-application 

meetings regarding some right-of-way 

grants, but would require two or more 

such meetings for: 

1. Any solar or wind energy grant 

outside a designated leasing area; 

2. Any transmission line with a 

capacity of 100 kV or more; or 

3. Any pipeline 10 inches or more in 

diameter. 

Under existing paragraph 

2804.10(a)(2), the BLM determines if 

your application is on land within a 

right-of-way corridor. This paragraph 

would be revised to include ‘‘or a 

designated leasing area.’’ The BLM 

would not accept applications for grants 

on lands inside designated leasing areas 

(see the section-by-section analysis of 

paragraph 2809.19(b) for further 

discussion). 

Proposed paragraph 2804.10(a)(4) 

would be amended by adding a 

reference to proposed paragraph 

2804.10(b). The existing paragraph 

states that the BLM may inform you of 

financial obligations, such as processing 

and monitoring costs, rent, and 

mitigation. The reference would 

reiterate that applicants must pay the 

reasonable costs associated with 

proposed paragraph 2804.10(b), or may 

elect to pay the full actual costs. 

Under paragraph 2804.10(b), 

applicants for right-of-way grants for 

solar or wind energy development 

(outside of designated leasing areas), 

any transmission line with a capacity of 

100 kV or more, or any pipeline 10 

inches or more in diameter, must hold 

two or more pre-application meetings. 

These types of authorizations are 

generally larger and more complex than 

the average right-of-way authorization, 

and this extra step would help protect 

the public lands and make application 

processing more efficient. 

The BLM would not accept an 

application until all pre-application 

meetings are held and the applicant 

complies with the grazing permittee 

early notification requirement found at 

43 CFR 4110.4–2(b). Applicants must 

pay reasonable costs associated with the 

pre-application requirements identified 

in paragraph (b) of this section, with the 

option of paying the-actual costs. 

Payment for reasonable costs associated 

with pre-application requirements 

would be paid prior to the first preapplication meeting. 

After the enactment of the Energy 

Policy Act of 2005, the BLM received an 

influx of solar and wind energy 

development applications. Many of 

these applications were unlikely to be 

approved due to issues such as siting, 

environmental impacts and lack of 

involvement with other interested 

parties. As the BLM gained more 

experience with these applications it 

developed policies to process 

applications more efficiently. These 

policies required pre-application 

meetings and application screening 

criteria (see section 2804.35). 

Mandatory pre-application meetings 

helped the BLM and prospective 

applicants identify necessary resource 

studies, and other interests and 

concerns associated with a project. 

Further, the pre-application meetings 

provided an opportunity to direct 

development away from lands with high 

conflict or sensitive resource values. As 

a result of these meetings, the 

applications submitted were better sited 

and had fewer resource issues than 

those submitted where no preapplication meetings were held. 

Holding these meetings early in the 

process made the applications more 

likely to be approved by the BLM. This 

saved the applicant the time and money 

spent when doing resource studies and 

developing projects that may not be 

accepted or approved by the BLM. 

Some prospective applicants chose 

not to pursue a development after these 

meetings after they had a better 

understanding of the potential issues 

and resource conflicts with the project 

as proposed. The BLM found that 

applicants who participated in preapplication meetings saved money that 

would have been spent planning a 

development that the BLM would not 

have approved. This also saved the BLM 

time by reducing the number of 

applications they would process and the 

time spent reviewing resource studies 

and project plans. 

The Government Accountability 

Office report (GAO–13–189), submitted 

in January 2013, found that the average 

BLM permitting timeframes have 

decreased since implementation of its 

solar and wind energy policies, which 

include the pre-application and 

application requirements in this 

proposed rule. 

In review of the BLM’s experiences 

with renewable energy development, 

transmission lines larger than 100 kV, 

and pipelines larger than 10 inches in 

diameter, holding pre-application 

meetings save both the BLM and a 

developer time and money. The GAO 

concluded that applications submitted 

in 2006 averaged about 4 years to 

process. Applications submitted in 2009 

and later averaged about 1.5 years to 

process. Further, the BLM has reviewed 

its records for cost recovery of these 

renewable energy, transmission and 

pipeline projects and identified a range 

of costs and time associated with each 

type of application for the public lands. 

These ranges vary between the solar and 

wind energy, transmission line, and 

pipeline projects. For solar and wind 

energy a range of costs was identified 

between $40,000 and $4 million 

including up to approximately 40,000 

BLM staff labor hours and other nonlabor costs per project. For transmission 

lines 100 kV or larger and pipelines 10 

inches or larger, a range of costs was 

identified between $260,000 and $3.2 

million including up to approximately 

32,000 BLM staff labor hours and other 

non-labor costs per project. 

Based on the BLM’s experience, two 

pre-application meetings would usually 

be sufficient to address all potential 

concerns with a project. However, the 

BLM understands that additional preapplication meetings may be beneficial 

to a project before an application is 

submitted. The BLM does not want to 

limit its ability to hold additional 

meetings should a project be 


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particularly complex and has allowed 

for additional pre-application meetings 

to be held when mutually agreed upon 

by the BLM. For example, a project that 

crossed State lines could require 

additional coordination with local 

governments and other interested 

parties. 

The burden on prospective applicants 

would be limited. In advance of the first 

pre-application meeting, they would 

need to collect information about the 

general project proposal (see section 

2804.10(b)(1)(i)). The BLM would be in 

the best position to know, and thus 

would be primarily responsible for 

collecting and communicating, the rest 

of the required information: 

• The status of BLM land use 

planning for the lands involved; 

• Potential siting issues or concerns; 

• Potential environmental issues or 

concerns; 

• Potential alternative site locations; 

and 

• The right-of-way application 

process. 

One or more additional preapplication meetings would be held 

with the BLM and other Federal, State, 

tribal, and local governments to 

facilitate coordination. This requirement 

would provide an opportunity for a 

prospective applicant to describe the 

general project proposal (i.e., 

information that has already been 

collected), and for the BLM and the 

prospective applicant to learn generally 

the views of various governmental 

entities. Again, the burden for 

prospective applicants would be 

limited. Paragraph 2804.10(c) would 

explain requirements for submitting an 

application for solar or wind energy 

development projects, for any 

transmission line with a capacity of 100 

kV or more, or for any pipeline 10 

inches or more in diameter. This 

provision would codify the existing 

policies and provide clear instructions 

to the public about what they should 

expect during the application process. 

The BLM would accept an application 

only if the following conditions are met. 

The written proposal must address 

known potential resource conflicts with 

sensitive resources and values that are 

the basis for special designations or 

protections, and include applicantproposed measures to avoid, minimize, 

and mitigate such resource conflicts. For 

example, some applicant proposed 

measures could utilize a landscape level 

approach as conceptualized by 

Secretarial Order 3330 and subsequent 

reports, and consistent with the BLM’s 

IM 2013–142 interim policy guidance. 

Due to the intense use of the land from 

the projects covered in this section, the 

BLM would require applicants to 

identify potential conflicts and how 

they may be avoided, minimized, or 

mitigated. The BLM works with 

applicants throughout the application 

process to ensure the most efficient use 

of public land and to minimize possible 

resource conflicts. This provision would 

require applicants to consider these 

concerns before submitting an 

application and therefore provide the 

BLM with potential plans to minimize 

and mitigate conflicts. 

The BLM is soliciting comments on 

the number of pre-application meetings 

that would be required for solar or wind 

energy development projects, for any 

transmission line with a capacity of 100 

kV or more, or for any pipeline 10 

inches or more in diameter. The 

Department of Energy (DOE) is currently 

developing a draft integrated, 

interagency pre-application (IIP) process 

for onshore transmission projects. The 

BLM intends to create a pre-application 

process that would be consistent with 

the IIP when it is proposed for 

transmission lines. However, the DOE 

has not yet published the IIP or other 

such plan for pre-application. The BLM 

will coordinate with the DOE to ensure 

that the final BLM rule is consistent 

with DOE’s final IIP process. 

The proposal for solar energy or wind 

energy development must not be sited 

on lands inside a designated leasing 

area except as provided for by section 

2809.19. Lands inside designated 

leasing areas would be offered 

competitively under subpart 2809. See 

section 2809.19 of this preamble for 

further discussion. 

The applicant must have completed 

pre-application meetings described in 

paragraphs 2804.10(b)(1) and 

2804.10(b)(2) to the BLM’s satisfaction. 

This paragraph would reinforce the 

requirements for pre-application 

meetings. 

The proposal must be accompanied 

by a general description of the proposed 

project and a schedule for the submittal 

of a POD conforming to the POD 

template at http://www.blm.gov. 

The submittal of a POD is often 

required under the authority of the 

existing regulations at paragraph 

2804.25(b). Under proposed paragraph 

2804.10(b) of this rule, PODs would 

always be required for authorizations for 

solar or wind energy development, any 

transmission line with a capacity of 100 

kV or more, or any pipeline 10 inches 

or more in diameter. The new 

requirement in paragraph 2804.10(c)(4) 

is for a more general summary of the 

project, using the information available 

at the time of submittal. A POD 

conforming to the BLM’s template 

would be submitted later, in accordance 

with the approved schedule. 

Proposed paragraph 2804.12(a)(8) 

would require that an applicant submit 

a non-refundable application filing fee 

with any solar or wind energy right-ofway application. Section 304 of FLPMA 

authorizes the BLM to establish filing 

and service fees. A per-acre application 

filing fee would discourage applicants 

from applying for more land than would 

be necessary for the proposed project. 

Revenue collected for application filing 

fees will be sent to the U.S. Treasury 

and not retained by the BLM as this is 

not a cost recovery fee. A similarly 

structured nomination fee inside 

designated leasing areas is established 

following the same criteria and is 

described in paragraph 2809.11(b)(1). 

The application filing fee is based on 

the appraisal consultation report 

performed by the Department’s Office of 

Valuation Services. The appraisal 

consultation report compared similar 

costs on private lands, and provided a 

range between $10 and $25 per acre per 

year. The nominal range or median was 

reported as $15–$17 per acre per year. 

The appraisal consultation report is 

available for review by contacting 

individuals listed regarding the 

substance of the proposed rule under 

the FOR FURTHER INFORMATION CONTACT

heading section of this preamble. 

The BLM is proposing to adopt a 

single filing fee at the time of filing an 

application, as opposed to a yearly 

payment. Based on the appraisal 

consultation report, fees are proposed at 

$15 per acre for solar and wind energy 

applications and $2 per acre for wind 

energy project area and site specific 

testing applications. 

Fees for solar and wind energy 

development applications would be 

adjusted for inflation once every 10 

years using the Implicit Price Deflator 

for Gross Domestic Product (IPD–GDP). 

The average change in the IPD–GPD 

from 1994–2003 is 1.9 percent which 

would be applicable through 2015. 

Paragraph 2804.12(a)(9) would be 

added to clarify existing requirements, 

as well as to complement new 

provisions. Under existing paragraph 

2804.25(b), the BLM may require an 

applicant to submit a general 

description of the project POD. This 

new requirement in paragraph 

2804.12(a)(9) states that if the BLM 

requires you to submit a POD, you must 

include a schedule for its submittal in 

your application. 

Under the existing regulations at 

section 2804.14, applicants must pay 

the BLM for its reasonable costs, as 

defined by FLPMA, of processing an 

application. New paragraph 2804.14(a) 


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gives the BLM discretion to collect the 

estimated reasonable costs incurred by 

other Federal agencies. Secretarial Order 

3327 delegated the Secretary’s FLPMA 

cost reimbursement authority to Interior 

agencies, who often work together on 

projects with joint jurisdiction. 

Applicants may pay those costs to the 

other affected agencies directly instead 

of paying them to the BLM. 

Proposed paragraph 2804.14(b) 

includes a table of the processing 

categories for applications. The specific 

costs would be removed from this table, 

while the explanations of the categories 

and the methodology of calculating the 

costs would remain. These numbers are 

available in writing upon request or on 

the BLM’s Web site. The cost figures 

that would be removed are outdated, 

since the BLM updates these costs 

annually and has done so annually 

since the original rule was published. 

The revision would allow the BLM to 

update these numbers without 

modifying the CFR and prevent 

confusion to potential applicants who 

would see incorrect information. The 

explanation of how these costs are 

calculated, currently in paragraph 

2804.14(c), would be moved up to 

paragraph (b) in order to provide better 

context for the amended table. 

Redundant language would be removed 

from the Category 1 processing fee in 

order to streamline the definition. 

As defined in section 2804.18, a 

Master Agreement is a written 

agreement covering processing and 

monitoring fees negotiated between the 

BLM and a right-of-way applicant that 

involves multiple BLM rights-of-way for 

projects within a defined geographic 

area. New paragraph 2804.18(a)(6) 

would require that a Master Agreement 

describe existing agreements between 

the BLM and other Federal agencies for 

cost reimbursement with such 

applications. With the recent authority 

delegated by Secretarial Order 3327 to 

collect costs for other Federal agencies, 

it is important for the applicant, the 

BLM, and other Federal agencies to 

coordinate and be consistent for cost 

reimbursement. 

Under paragraph 2804.19(a), an 

applicant for a Category 6 application 

must enter into a written agreement 

with the BLM about how such 

applications would be processed. A new 

requirement would be added to this 

paragraph requiring that the final 

agreement must include a description of 

any existing agreements the applicant 

has with other Federal agencies for cost 

reimbursement associated with the 

application. The new authority 

delegated by Secretarial Order 3327 

requires more coordination and 

promotes consistency between the 

Federal agencies and this revision 

would help to implement this 

coordination. 

Under new paragraph 2804.19(e), the 

BLM may collect reimbursement to the 

U.S. for reasonable costs for processing 

applications and preparation of other 

documents under this part relating to 

the public lands. Secretarial Order 3327 

authorizes the BLM to collect funds for 

other agencies for their work on 

applications submitted to the BLM. 

Adding this language to the CFR would 

clarify the BLM’s authority for the 

public. 

Section 2804.20 would be amended to 

account for the authority delegated by 

Secretarial Order 3327, as well as new 

provisions in the proposed rule, when 

determining reasonable costs for 

processing and monitoring Category 6 

applications. New language would 

include existing agreements with other 

Federal agencies for cost reimbursement 

associated with an application and costs 

associated with new pre-application 

requirements for proposed solar or wind 

energy development projects, for any 

transmission line with a capacity of 100 

kV or more, or any pipeline 10 inches 

or more in diameter. Processing costs 

would include reasonable costs for 

processing a right-of-way application, 

while monitoring costs include 

reasonable costs for those actions the 

Federal Government performs to ensure 

compliance with the terms, conditions, 

and stipulations of a right-of-way grant. 

The heading of section 2804.23 would 

be revised to read ‘‘When will the BLM 

use a competitive process?’’ to better 

reflect the subject of the section. 

Paragraph (a)(1) of this section would 

now require applicants to reimburse the 

Federal Government, as opposed to just 

the BLM, for processing costs. This 

change reflects the authority delegated 

by Secretarial Order 3327 for Interior 

agencies to collect money for processing 

applications made on the public land, as 

well as promote cooperation between 

the different Federal land management 

agencies. 

A new sentence in paragraph 

2804.23(c) would give the BLM 

authority to offer lands through a 

competitive process. Under the existing 

regulations, the BLM may only use a 

competitive process when there are two 

or more competing applications for a 

single right-of-way system. This change 

gives the BLM more flexibility to offer 

lands competitively for all potential 

rights-of-way, not just solar and wind 

energy development projects. 

The BLM has already established 

competitive leasing procedures for the 

oil and gas and geothermal leasing 

programs, some of which were 

described in the ANPR. Though these 

programs are guided by different 

statutes, regulations, and policies, the 

BLM’s proposed competitive bid 

processes for rights-of-way have 

appropriately incorporated procedures 

used by these programs. For example, a 

notice placed in both a local newspaper 

and the Federal Register would provide 

specific instructions to interested 

parties on the required methodology 

and procedures for a competitive offer. 

Under proposed paragraph 

2804.23(d), lands outside of designated 

leasing areas may be made available for 

solar or wind energy applications 

through the competitive process 

outlined in section 2804.30. This new 

provision would direct the reader to 

new section 2804.30, which explains 

the competitive process for solar and 

wind energy development outside of 

designated leasing areas. This paragraph 

is necessary to differentiate between 

development inside and outside of a 

designated leasing area. 

Under new paragraph 2804.23(e), 

lands inside a designated leasing area 

would be offered competitively through 

the process described in subpart 2809. 

This new paragraph would direct the 

reader to new subpart 2809, which 

would explain the competitive process 

for solar and wind energy development 

inside of designated leasing areas. This 

paragraph is necessary to differentiate 

between development inside and 

outside of a designated leasing area. 

Existing section 2804.24 explains 

when you do not have to use Standard 

Form 299 (SF–299) to apply for a rightof-way. Under the existing rule, you do 

not have to use SF–299 if the BLM 

determines competition exists under 

paragraph 2804.23(a). This only occurs 

when there are two or more competing 

applications for the same right-of-way 

facility or system. 

Due to the proposed changes to 

section 2804.23, section 2804.24 must 

specify when an SF–299 is required. 

Under both the existing regulations and 

the proposed rule, the BLM would 

implement a competitive process if 

there are two or more competing 

applications. Under paragraph 

2804.24(a), you would not have to 

submit a SF–299 if the BLM is offering 

lands competitively and you have 

already submitted an application for 

that facility or system. 

Under paragraph (a), if you have not 

submitted an application for that facility 

or system, you must submit an SF–299 

as specified by the BLM. Under the 

competitive process for solar or wind 

energy in section 2804.30, for example, 

the successful bidder becomes the 


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preferred applicant, and may apply for 

a grant. The preferred applicant would 

be required to submit an SF–299, but 

unsuccessful bidders would not. 

New paragraph (b) would explain that 

an applicant would not have to use an 

SF–299 when the BLM is offering lands 

competitively under subpart 2809. The 

BLM may offer lands competitively for 

solar and wind energy development 

inside designated leasing areas under 

subpart 2809. Under subpart 2809, the 

successful bidder would be offered a 

lease if the requirements described in 

paragraph 2809.15(d) are met. The 

successful bidder inside designated 

leasing areas would not have to submit 

an application using SF–299. The 

following chart illustrates under what 

circumstances the filing of an SF–299 

would or would not be required: 

WHEN A SF–299 IS REQUIRED

Type of solar or wind right-of-way Would have to 

submit a SF 299 Comments 

Have two or more competing applications for the same area .................................................... Yes ................... Outside of designated leasing 

areas. 

Lands are offered competitively outside of a designated leasing area and you have already 

submitted an application for the parcel before the Notice of Competitive Offer.

No. 

Lands are being offered competitively outside of a designated leasing area and you have not 

submitted an application.

Yes. 

You are the successful bidder and have been declared the preferred applicant and may 

apply for a grant.

Yes ................... Outside of designated leasing 

areas. 

Lands being offered competitively within a designated leasing area under subpart 2809 ........ No. 

Under the amendments to paragraph 

2804.25(b), the BLM would not process 

your application if you have any 

trespass action pending for any activity 

on BLM-administered lands or have any 

unpaid debts owed to the Federal 

Government. The only applications the 

BLM would process to resolve the 

trespass would be for a right-of-way as 

authorized in this part, or a lease or 

permit under the regulations found at 43 

CFR 2920, but only after outstanding 

debts are paid. This provision would 

apply to rights-of-way, and would 

clarify existing regulations. Under 

existing regulations at section 2808.12, 

the BLM will not process any 

application for any activity on BLMadministered lands until you have 

satisfied your liability for a trespass. 

The requirement in section 2808.12 is 

often overlooked by potential right-ofway applicants and this change would 

insert this existing requirement into the 

application process described in subpart 

2804. 

Paragraph 2804.25(d) would be 

revised by replacing the words ‘‘before 

issuing a grant’’ with ‘‘in processing an 

application.’’ This change would be 

made to account for the situation where 

the BLM would issue a grant without 

accepting applications. Lands leased 

inside designated leasing areas would 

be offered through a competitive 

bidding process under subpart 2809 in 

situations where no applications for 

those lands are received. The provisions 

in section 2804.25 would not apply to 

the leases issued under subpart 2809. 

They would apply to all other rights-ofway, including solar and wind energy 

development grants outside of 

designated leasing areas. The issuance 

of leases inside designated leasing areas 

will be discussed in subpart 2809. 

Paragraph 2804.25(d) also would be 

revised to incorporate new provisions 

for all rights-of-way as well as specific 

provisions for solar and wind energy 

development. Existing paragraph 

2804.25(d)(5), which provides the 

requirement to hold a public meeting if 

there is sufficient public interest, would 

be moved to new paragraph 

2804.25(d)(1). Language would be added 

to specify that the public notice would 

be published in a newspaper in the area 

affected by the potential right-of-way 

and that the BLM may use other 

notification methods as well, such as 

the Internet. The former revision would 

clarify existing regulations, while the 

latter would expand the BLM’s methods 

for notification. 

New paragraph 2804.25(d)(2) would 

consist of three separate requirements 

for solar and wind energy development 

applications. Under paragraph 

2804.25(d)(2)(i), the BLM would hold a 

public meeting in the area affected by 

the potential right-of-way for all solar or 

wind energy applications. Based on the 

BLM’s experience, most solar and wind 

energy development projects are largescale projects that draw a high level of 

public interest. This requirement would 

be added to provide an opportunity for 

public involvement early in the process. 

Under paragraph (d)(2)(ii), the BLM 

would apply screening criteria when 

processing an application outside of 

designated leasing areas. These 

screening criteria are explained further 

in section 2804.35. 

Under new paragraph 

2804.25(d)(2)(iii), the BLM would either 

deny or continue processing an 

application, after reviewing the input of 

other government and tribal entities, as 

well as information received in the 

application, public meetings, and preapplication meetings. The denial of an 

application would be in writing and 

would be an appealable decision under 

section 2801.10. The approval of all 

grant applications is at the BLM’s 

discretion and the BLM would likely 

deny an application that has high 

potential for resource conflicts. While 

the BLM already has the authority to 

deny applications that have high 

potential for resource conflicts, the 

proposed rule would clarify to potential 

applicants how they may submit an 

application that is more likely to be 

approved. 

Under new paragraph 2804.25(d)(3), if 

an application is for solar or wind 

energy development, for any 

transmission line with a capacity of 100 

kV or more, or any pipeline 10 inches 

or more in diameter, then the BLM 

would determine whether the POD 

submitted with the application meets 

the applicable development schedule 

and other requirements or whether the 

applicant must provide additional 

information. This is a necessary step 

that would be added to allow the BLM 

to evaluate the new application 

requirements under paragraphs 

2804.10(c)(4) and 2804.12(a)(9). The 

BLM would determine if the 

development schedule and other 

requirements of the POD templates were 

followed as required under paragraphs 

2804.10(c)(4) and 2804.12(a)(9). The 

POD template can be found at http://

www.blm.gov. 

Proposed paragraphs (d)(4), (d)(5), 

(d)(6), (d)(7), and (d)(8) of this section 

are existing provisions that would be 

moved to fit in with the other 

paragraphs of this section. 

The BLM is considering and seeks 

public comment on establishing in the 

final rule a provision that would limit 


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the time for applicants to begin 

conducting necessary resource studies. 

The deadline could be specific, for 

example 1 year after the BLM accepts an 

application. Alternatively, a time 

limitation could be stated in more 

general terms that would provide for 

greater flexibility on a case-by-case 

basis. Under this proposal, the failure to 

begin conducting such studies in the 

specified time frame could result in the 

BLM’s denial of an application unless 

the BLM had previously agreed to a 

longer period of time at the request of 

the applicant. We are considering 

adding this time limitation to section 

2804.25. We seek public comment on 

any other provisions that might be 

pertinent. 

Section 2804.26 explains the 

circumstances under which the BLM 

may deny an application. Existing 

paragraph 2804.26(a)(5) explains one 

such circumstance, when an applicant 

does ‘‘not have or cannot demonstrate 

the technical or financial capability to 

construct the project or operate facilities 

in the proposed right-of-way.’’ The 

proposed rule would add text to clarify 

this requirement, which applies to all 

rights-of-way. The new paragraphs 

would explain how an applicant could 

provide evidence of the financial and 

technical capability to be able to 

construct, operate, maintain, and 

decommission a solar or wind energy 

development project. The applicant may 

provide documented evidence showing 

prior successful experience in 

developing similar projects, provide 

information of sufficient capitalization 

to carry out development, or provide 

documentation of loan guarantees, 

confirmed power purchase agreements, 

and contracts for the manufacture and/ 

or supply of key components for solar 

or wind energy project facilities. A 

specific period of time for requiring 

compliance with this provision has not 

been established. The BLM is soliciting 

comments as to what an appropriate 

time would be in such situations. 

Under new paragraph 2804.26(a)(6), 

the BLM may deny your application if 

you do not meet the POD submittal 

requirements under paragraphs 

2804.10(c)(4) and 2804.12(a)(9). New 

paragraph 2804.26(a)(7) would reference 

the possible denial based on the 

screening criteria established in new 

paragraph 2804.25(d)(2)(iii). Paragraphs 

(a)(6) and (a)(7) would be added to this 

section to reiterate these new 

requirements and explain that the BLM 

may deny an application should an 

applicant not comply with these 

provisions. 

The heading of section 2804.27, 

‘‘What fees do I owe if BLM denies my 

application or if I withdraw my 

application?’’ would be revised to read 

‘‘What fees must I pay if BLM denies my 

application or if I withdraw my 

application?’’ A new provision in this 

paragraph would provide that if the 

BLM denies your application, or if you 

withdraw it, you must still pay any preapplication costs required under 

paragraph 2804.10(a)(4), any application 

filing fees submitted or due under 

paragraph 2804.12(a)(8), and the 

processing fee set forth at section 

2804.14. Currently, the BLM is 

reimbursed for its costs only after a 

right-of-way application has been filed. 

Under the proposed rule, the BLM could 

recover the considerable expense 

devoted to pre-application work. 

Reimbursement for pre-application costs 

would ensure that the BLM has funds 

for, and could help reduce delays in 

performing pre-application work. 

Section 304(b) of FLPMA provides for 

the deposit of payments to reimburse 

the BLM for reasonable costs with 

respect to applications and other 

documents relating to the public lands. 

New section 2804.30 would explain 

the process by which the BLM would 

competitively offer lands outside of 

designated leasing areas. The bidding 

process here is similar to the one 

established in subpart 2809, except for 

the end result of the bidding. Under 

paragraph (f) of this section, the 

successful bidder would become the 

preferred right-of-way applicant. Under 

this section, the high bidder is not 

guaranteed a grant; however, the 

preferred applicant is the only party that 

may submit an application for the parcel 

identified by the BLM under paragraph 

(g). This is different from subpart 2809, 

where the successful bidder would be 

offered a lease. 

Paragraph (a) of this section would 

identify which lands are available for 

competitive lease; paragraph (b) of this 

section would explain the variety of 

competitive procedure options 

available; and paragraph (c) would 

explain how the BLM would identify 

parcels for competitive offer. The BLM 

may identify a parcel for competitive 

offer if competition exists or the BLM 

may include lands in a competitive offer 

on its own initiative. The existing 

regulations only allow the BLM to use 

a competitive process when there are 

two competing applications and the 

changes to paragraph 2804.23(c) would 

give the BLM more flexibility. The BLM 

could include lands in a competitive 

offer in response to interest from the 

public, industry, or to facilitate State 

renewable energy goals. 

Paragraph 2804.30(d), ‘‘Notice of 

competitive offer,’’ establishes the 

content of the materials of a notice of 

competitive offer that include the date, 

time, and location (if any) of the 

competitive offer, bidding procedures, 

qualifications of potential bidders, and 

the minimum bid required. The notice 

would also explain that the successful 

bidder would become the preferred 

applicant and must apply for a grant 

under this subpart. This is different 

from the competitive offers held under 

subpart 2809 where the successful 

bidder is offered a lease. 

Paragraph 2804.30(d)(4) requires that 

the notice to provide the amount of the 

minimum bid, which would include a 

description of the administrative costs 

to the Federal agencies involved and 

what was provided by those 

administrative costs, as well as the 

minimum bid determined by the 

authorized officer and the rationale for 

how this minimum bid was derived. As 

discussed in the general discussion 

section of this preamble, the 

administrative costs are not a 

component of fair market value, but are 

cost reimbursement to the Federal 

Government. The BLM would publish a 

notice containing all of the identified 

elements in a newspaper of general 

circulation in the area affected by the 

potential right-of-way, in the Federal 

Register, and other notification 

methods, including use of the Internet. 

Under paragraph 2804.30(e), 

‘‘Bidding,’’ the BLM would require that 

bid submissions include both the 

minimum bid amount and at least 20 

percent of the bonus bid. The minimum 

bid would consist of administrative 

costs and an amount determined by the 

authorized officer. Included in the 

administrative costs are those expenses 

pertaining to the development of 

environmental analyses and those costs 

to the Federal Government associated 

with holding the competitive offer. 

The authorized officer may 

specifically identify a second 

component for the minimum bid(s) 

submitted for each competitive offer. 

This amount would be based on the 

known or potential values of the offered 

parcel. The authorized officer may 

consider values that include, but are not 

limited to, the acreage rent, the MW 

capacity fee, or other environmental and 

mitigation costs of the parcel. For 

example, the BLM may have identified 

values in management plans, or other 

such documents, for the habitat 

mitigation of the desert tortoise. The 

authorized officer would have to 

identify these costs and provide the 

description of how the minimum bid 

amount was determined. An 

explanation of the minimum bid 

amount and how the BLM derived it 


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would be provided in the notice of 

competitive offer. 

Under proposed paragraph 2804.30(f), 

the successful bidder would be 

determined by submitting the highest 

total bid at a competitive offer. The 

successful bidder must fulfill the 

payment requirements of the successful 

bid in order to become the preferred 

right-of-way applicant. The preferred 

applicant must submit the balance of 

the bid to the BLM within 15 calendar 

days of the end of the offer. 

Under proposed paragraph 2804.30(g), 

the preferred applicant would be the 

only party who may submit an 

application for the parcel offered. 

Unlike the process under subpart 2809, 

the approval of a grant under this 

paragraph is not guaranteed to the 

successful bidder. Approval of a grant is 

solely at the BLM’s discretion. The 

preferred applicant may also apply for 

a wind energy project area or site 

specific testing grant. 

Paragraph 2804.30(h), ‘‘Reservations,’’ 

describes how the BLM would address 

certain situations that could arise from 

a competitive offer. Under paragraph 

(h)(1) of this section, the BLM may 

reject bids regardless of the amount 

offered. For example, the BLM may 

reject a bid if there is evidence of 

conflicts of interest or collusion among 

bidders or if there is new information 

regarding potential environmental 

conflicts. The BLM would notify the 

bidder of the reason for the rejection 

and what refunds are available. If the 

BLM rejects a bid, the bidder may 

administratively appeal that decision. 

Under paragraph (h)(2) of this section, 

the BLM could make the next highest 

bidder the preferred applicant if the first 

successful bidder does not satisfy the 

requirements under section 2804.30(f). 

This could allow the BLM to determine 

a preferred applicant without reoffering 

the land and could save time and money 

for the BLM and potential applicants. 

The BLM could reoffer lands 

competitively under (h)(3) of this 

section if the BLM could not identify a 

successful bidder. If there is a tie, this 

offer could be limited to tied bidders or 

to all bidders. This would provide the 

BLM flexibility to resolve ties and other 

issues that could complicate a 

competitive offer. 

Under proposed paragraph 

2804.30(h)(4), if the BLM receives no 

bids, the BLM may re-offer the lands 

through the competitive process in 

section 2804.30. The BLM may also 

make the lands available through the 

non-competitive process as described in 

subparts 2803, 2804, and 2805, if doing 

so is determined to be in the public 

interest. 

New section 2804.35 would explain 

how the BLM would prioritize review of 

an application for a solar or wind energy 

development right-of-way based on the 

screening criteria for projects outside of 

designated leasing areas. The BLM 

would evaluate the application based on 

the screening criteria and place the 

application into one of three categories. 

These categories would assist the BLM 

in prioritizing and processing such 

applications. Applications for solar and 

wind energy development will not be 

accepted for lands inside designated 

leasing areas except as allowed under 

new section 2809.19, and therefore 

would not have such applications 

prioritized. 

The BLM has already established 

screening criteria through IM 2011–061, 

which identifies their use for solar and 

wind energy development rights-of-way 

in order to facilitate environmentally 

responsible development by considering 

resource conflicts, land use plans, and 

statutory and regulatory provisions 

pertinent to the applications and the 

lands in question. Applications with 

lesser resource conflicts are anticipated 

to be less costly and time-consuming for 

the BLM to process and would be 

prioritized over those with greater 

resource conflicts. IM 2011–061 may be 

found at http://www.blm.gov/wo/st/en/

prog/energy/renewable_energy.html. 

This rule proposes criteria similar to 

those in the IM and the codification of 

these criteria would give applicants a 

better understanding of how their 

application would be categorized. Also, 

applications could be tailored to fit 

these screening criteria to streamline the 

processing of an application. 

High priority applications are given 

processing priority over medium and 

low priority applications and would 

consist of lands meeting some or all of 

the following criteria: 

1. Lands specifically identified for 

solar or wind energy development, 

outside designated leasing areas; 

2. Previously disturbed sites or areas 

adjacent to previously disturbed or 

developed sites; 

3. Lands currently designated as VRM 

Class IV; and 

4. Lands identified as suitable for 

disposal in the BLM’s land use plans. 

The BLM may identify lands through 

the NEPA process that are suitable for 

solar or wind energy development, 

which are not designated leasing areas. 

Identified lands would include those 

which have: Been analyzed in a land 

use plan and are suitable for solar and 

wind energy development but were 

determined to not be made available 

competitively; received approval from 

the BLM for a similar development for 

which a right-of-way was never issued 

or the right-of-way was relinquished, or; 

been returned from a designated leasing 

area back to lands not identified for 

solar or wind energy completion. 

VRM factors would address situations 

where the construction of solar or wind 

facilities would have low impacts to the 

environment and are in areas that have 

few or no resource values or areas 

needing protection from development. 

The VRM inventory process is a means 

to determine visual resource values. The 

VRM inventory consists of a scenic 

quality evaluation, sensitivity level 

analysis, and a delineation of distance 

zones. Based on these three factors, 

BLM-administered lands are placed into 

one of four VRM classes, with Classes I 

and II being the most valued, Class III 

representing a moderate value, and 

Class IV being of least value. The BLM 

assigns VRM classes through the land 

use planning process and these values 

can range from areas having few scenic 

qualities to areas with exceptional 

scenic quality. 

Under the proposed rule, medium 

priority applications would be 

considered before low priority 

applications, based on the following 

criteria: 

1. BLM special management areas that 

provide for limited development or 

where a project may adversely affect 

lands having value for conservation 

purposes, such as historical, cultural, or 

other similar values; 

2. Right-of-way avoidance areas; 

3. Sensitive plant or animal habitat 

areas; and 

4. Lands designated as VRM Class III. 

Low priority applications may not be 

feasible to authorize due to a high 

potential for conflict. Examples of 

applications that may be assigned low 

priority would involve: 

1. Lands near or adjacent to areas 

designated by the Congress, the 

President, or the Secretary for the 

protection of various resource values; 

2. Right-of-way exclusion areas; 

3. Lands currently designated as VRM 

Classes I or II; 

4. Lands currently designated as no 

surface occupancy areas; and 

5. Lands designated as critical habitat 

for federally designated threatened or 

endangered species. 

The heading for section 2805.10 

would be revised to read, ‘‘How will I 

know if BLM has approved or denied 

my application, or if my bid for a solar 

or wind energy development lease 

inside a designated leasing area is 

successful or unsuccessful?’’ This 

section would be updated to reflect the 

new competitive process for lands 

inside designated leasing areas by 


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providing that a successful bidder for a 

solar or wind development lease on 

such lands would not have to submit an 

SF–299 application. Instead, in these 

circumstances, the successful bidder 

would have the option to sign the lease 

offered by the BLM. 

Paragraph (a) of this section would 

contain the existing language that 

explains how the BLM would notify you 

about your application. It would add a 

new provision requiring that the BLM 

send the successful bidder a written 

response, including an unsigned lease 

for review and signature. Unsuccessful 

bidders would also be notified and any 

funds submitted with their bid would be 

returned. If an application is rejected, 

the applicant would still be required to 

pay any pre-application costs 

(paragraph 2804.10(a)(4)), filing fees 

(paragraph 2804.12(a)(8)), and any 

processing fee (section 2804.14). 

Proposed paragraphs 2805.10(b), 

(b)(1), and (b)(2) would parallel existing 

paragraphs (a)(1) and (a)(2), and the 

content remains unchanged. These 

paragraphs describe the unsigned grant 

that the BLM would send for approval 

and signature. 

Paragraph (b)(3) of this section would 

specify that the BLM may make changes 

to any grant or lease as a result of the 

periodic review of the grant or lease 

required by this section, including those 

issued under subpart 2809, in 

accordance with paragraph 2805.15(e). 

A more detailed discussion can be 

found under that section. This provision 

is necessary because many terms and 

conditions of leases issued under 

subpart 2809 would not be changed 

except as described in this rule. 

However, the terms and conditions in 

subpart 2809 may be changed in 

accordance with paragraph 2805.15(e) 

as a result of changes in legislation, 

regulation, or as otherwise necessary to 

protect public health or safety or the 

environment. 

Proposed paragraphs 2805.10(c), 

2805.10(d), 2805.10(d)(1), 2805.10(d)(2), 

and 2805.20(d)(3) would contain the 

language from existing paragraphs 

2805.10(b) 2805.10(c), 2805.10(c)(1), 

2805.10(c)(2), and 2805.20(c)(3). These 

provisions remain unchanged from 

existing regulations. 

Existing paragraph 2805.11(b) 

explains how the duration of each 

potential right-of-way is determined. 

This paragraph would be revised to 

include specific terms for solar and 

wind energy authorizations because 

they are unique and different than other 

right-of-way authorizations. 

Paragraph 2805.11(b)(2)(i) would limit 

the term for a site specific grant for 

testing and monitoring of wind energy 

potential to 3 years. Under this rule, this 

type of grant would only be issued for 

a single meteorological tower or wind 

study facility. This authorization cannot 

be renewed. If a holder of a grant wishes 

to keep their site for additional time, 

they must reapply. 

Paragraph 2805.11(b)(2)(ii) would 

provide for an initial term of 3 years for 

project area wind energy testing. Such 

grants may include any number of 

meteorological towers or wind study 

facilities inside the right-of-way. Any 

renewal application must be submitted 

before the end of the third year. In order 

for the BLM to renew a permit, the 

project area wind testing grant holder 

must submit another application for 

wind energy development and a POD 

for that use. Renewals for project area 

wind testing grants may be authorized 

for one additional 3-year term. 

Paragraph 2805.11(b)(2)(iii) would 

provide for a short-term grant for all 

other associated actions, such as 

geotechnical testing and other 

temporary land-disturbing activities, 

when the term is 3 years or less. A 

renewal of this grant may be issued 

under for an additional 3-year term. 

Paragraph 2805.11(b)(2)(iv) would 

provide for an initial grant term of up 

to 30 years for solar and wind energy 

grants outside of designated leasing 

areas, with a possibility of renewal in 

accordance with paragraph 2805.14(g). 

A holder must apply for renewal before 

the end of the authorization term. 

Paragraph 2805.11(b)(2)(v) would 

provide for a 30-year term for solar and 

wind energy development leases inside 

designated leasing areas. A holder may 

apply for renewal for this term and any 

subsequent terms of the lease before the 

end of the authorization and the 

renewal would be considered at that 

time by the BLM. 

For all grants and leases under this 

section with terms greater than 3 years, 

the actual term period would include 

the number of full years specified, plus 

the initial partial year, if any. This 

provision differs from the grant term for 

rights-of-way authorized under the MLA 

(see the discussion of paragraph 2885.11 

later in this preamble section) as 

FLPMA rights-of-way may be issued for 

terms greater than 30 years, while a 

MLA right-of-way may be issued for a 

maximum term of 30 years and a partial 

year would count as the first year of a 

grant. 

Paragraph 2805.11(b)(3) contains the 

language from existing paragraph 

2805.11(b)(2) and would require that 

grants and leases with terms greater 

than 3 years include the number of full 

years specified, plus the partial year, if 

any. This proposed change to existing 

BLM regulations would affect the 

duration of all right-of-way grants that 

are issued or amended after the final 

rule becomes effective. This change 

would provide specific direction for 

consistently calculating the term of a 

right-of-way grant or lease. 

Section 2805.12 would provide a 

listing of terms and conditions to which 

all right-of-way holders must comply. 

This section has been reorganized in 

order to better present a large amount of 

information. Paragraph (a) of this 

section in the proposed rule would 

carry forward, without adjustment, most 

of the requirements from the existing 

section. Paragraph (b) of this section 

refers the reader to new section 2805.20, 

which explains bonding requirements 

for right-of-way holders. Paragraph (c) of 

this section contains specific terms and 

conditions for solar or wind energy 

right-of-way authorizations. The 

following discussion would apply only 

to those requirements that are proposed 

by this rule. All other requirements are 

part of the existing regulation and are 

not discussed in this preamble. 

New paragraph 2805.12(a)(5) contains 

existing language from section 

2805.12(e) with two small changes. The 

word ‘‘phase’’ would be changed to 

‘‘stage’’ to prevent confusion with the 

use of ‘‘phase-in of the MW capacity 

fee’’ and similar phrases in this 

proposed rule. The proposed rule would 

also prohibit discrimination based on 

sexual orientation. Adding sexual 

orientation as a protected class in this 

regulation would be consistent with the 

policy of the Department of the Interior 

that no employee or applicant for 

employment be subjected to 

discrimination or harassment because of 

his or her sexual orientation. See 373 

Departmental Manual 7 (June 5, 2013). 

Paragraph 2805.12(a)(8)(v) would 

require compliance with project specific 

terms, conditions, and stipulations, 

including proper maintenance and 

repair of equipment during the 

operation of the grant. This is an 

existing policy requirement that affects 

all rights-of-way and would be clarified 

to include leases offered under new 

subpart 2809 and that the approved 

operations would not unnecessarily 

harm the public land by poor 

maintenance and operation activities. In 

addition, this provision would require a 

holder to comply with the terms and 

conditions in the POD. Any holder that 

does not comply with the POD 

approved by the BLM would be subject 

to remedial actions under existing 

section 2807.17, which may include the 

suspension or termination of the grant 

or lease. 


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In order to comply with the terms and 

conditions of the grant or lease, a 

developer may choose to modify, 

remove or add improvements to the 

project in order to remedy identified 

compliance matters. Proposed changes 

to the grant or lease, if approved by 

BLM, would be completed as discussed 

in section 2807.11 as a substantial 

deviation. Substantial deviations may 

require adjustment to a grant or lease 

rent and fees under part 43 CFR 2806, 

or bonding requirements under part 43 

CFR 2805 and 2809 that reflect 

proposed changes that are approved by 

BLM. 

New paragraph 2805.12(a)(15) would 

require that a grant holder or lessee 

provide or make available, upon the 

BLM’s request, any pertinent 

environmental, technical, and financial 

records for inspection and review. Any 

information marked confidential or 

proprietary would be kept confidential 

to the extent allowable by law. Review 

of the requested records would facilitate 

the BLM’s monitoring and inspection 

activities related to the development. 

The records would also be used to 

determine if the holder is complying 

with the requirements for holding a 

grant under existing paragraph 

2803.10(b). 

Paragraph 2805.12(b) would require 

that grant holders and lessees comply 

with the bonding requirements of new 

section 2805.20. The existing bonding 

requirements are lacking in detail and 

this new section would help clarify the 

requirements of a grant holder or lessee. 

New paragraph 2805.12(c) would 

identify specific terms and conditions 

for grants and leases issued for solar or 

wind energy development, including 

those issued under subpart 2809, unless 

specifically noted. 

New paragraph 2805.12(c)(1) would 

prohibit ground-disturbing activities 

until either a notice to proceed is issued 

under the authority of existing section 

2807.10 or the BLM states in writing 

that all requirements have been met to 

begin construction. Requirements may 

include the payment of rents, fees, or 

monitoring costs and securing a 

performance and reclamation bond. The 

BLM would apply this requirement 

prohibiting ground-disturbing activities 

to all solar and wind rights-of-way due 

to the large-scale of most of these 

projects. 

Paragraph 2805.12(c)(2) would require 

construction to be completed within the 

timeframes provided in the approved 

POD. Construction must begin within 24 

months of the effective date of the grant 

authorization or within 12 months, if 

approved as a staged development. 

Further discussion of a staged 

development can be found under 

section 2806.50. 

Paragraph 2805.12(c)(3) would require 

each stage of construction after the first 

begin within 3 years after construction 

began for the previous stage of 

development. Construction would be 

completed no later than 24 months after 

the start of construction for that stage of 

development. These time periods were 

selected after evaluating the timing of 

other completed wind energy 

development projects. These timeframes 

help to ensure that the public land is 

not unreasonably encumbered by these 

large authorizations, which are 

exclusive to other rights during the 

construction period of the project. 

Paragraph 2805.12(c)(3)(iii) would 

limit the number of stages of 

development to three, unless the BLM’s 

approval for additional stages is 

obtained in advance. The BLM would 

generally approve up to three stages for 

solar and wind energy development. 

Approval of additional stages may be 

requested by an applicant or holder, but 

must be accompanied with supporting 

discussion for why additional stages are 

necessary or reasonable. Each stage 

would require a review of records and 

a decision issued by the BLM to allow 

the construction of the next stage. 

Additional phasing could generate 

unnecessary work for the BLM. 

Paragraphs (c)(4), (c)(5), and (c)(6) of 

this section would contain specific 

requirements for diligent development 

and the potential consequences of not 

complying with these requirements. 

Paragraph 2805.12(c)(4) would require 

the holder to maintain all onsite 

electrical generation equipment and 

facilities in accordance with the design 

standards of the approved POD. This 

paragraph specifies requirements to 

comply with the POD that must be 

submitted under paragraph 

2804.10(c)(4). 

Paragraph 2805.12(c)(5) would 

provide requirements for repairing or 

removing damaged or abandoned 

equipment and facilities within 30 days 

of a notice from the BLM. The BLM 

would issue a notice of noncompliance 

under this provision only after 

identifying damaged or abandoned 

facilities that present an unnecessary 

hazard to the public health or safety or 

the environment for a continuous period 

of 3 months. Upon receipt of a notice of 

noncompliance under this provision, an 

operator would be required to take 

appropriate remedial action within 30 

days, or show good cause for any delays. 

Failure to comply with these 

requirements may result in suspension 

or termination of a grant or lease. 

Under paragraph 2805.12(c)(6), the 

BLM may suspend or terminate a grant 

if the holder does not comply with the 

diligent development requirements of 

the authorization. 

Paragraph 2805.12(d) would describe 

specific requirements for wind energy 

site or project testing grants. These 

requirements include shorter time 

periods for beginning construction, 

because these grant terms are only 3 

years or less. All facilities must be 

installed within 12 months after the 

effective date of the grant. All 

equipment must be maintained and 

failure to comply with any terms may 

result in termination of the 

authorization. 

The BLM is proposing two new 

paragraphs for section 2805.14, both of 

which would address renewal 

applications. New paragraph (g) would 

provide that a holder of a solar or wind 

energy development grant or lease may 

apply for renewal under section 

2807.22. New paragraph (h) would 

provide that a holder of a wind energy 

project area testing grant may apply for 

renewal of such a grant for up to an 

additional 3 years, provided that the 

renewal application also includes a 

wind energy development application. 

The BLM is proposing paragraph (h) to 

recognize that project area testing may 

be necessary for longer than an initial 3- 

year term even after an applicant 

believes that wind energy development 

at a proposed project site is feasible. 

Under existing paragraph 2805.15(e), 

the BLM may change the terms and 

conditions of a grant as a result of 

changes in legislation, regulation, or as 

otherwise necessary to protect public 

health or safety or the environment. 

This paragraph remains unchanged and 

would apply to the leases issued under 

subpart 2809. The BLM must maintain 

the flexibility to adjust these leases for 

new laws and rules, as well as to protect 

the public lands. In section 2805.15, the 

word ‘‘facilities’’ would be added to the 

first sentence of paragraph (b) to clarify 

that the BLM may require common use 

of right-of-way facilities. The term 

‘‘facility’’ is defined in the BLM’s 

existing regulations at section 2801.5 

and means an improvement or structure 

that would be owned and controlled by 

the grant holder or lessee. Common use 

of a right-of-way is when more than one 

entity uses the same area for their 

authorization. This revision would 

facilitate the cooperation and 

coordination between users of the 

public lands managed by the BLM so 

that resources are not unnecessarily 

impacted. An example of common use 

of a facility would be authorization for 

a roadway and an adjacent transmission 


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line. Maintenance of the transmission 

line would include use of the adjacent 

roadway. Under existing paragraph 

2805.14(b), the BLM may authorize or 

require common use of a facility as a 

term of the grant. Under this existing 

provision, a grant holder may charge for 

the use of its facility. A reference to this 

paragraph is provided in the section 

proposed. 

The table of monitoring categories in 

section 2805.16 would no longer have 

the dollar amounts for the 2005 category 

fees. Paragraph (b) explains that the 

current year’s monitoring cost schedule 

is available from any BLM State, 

district, or field office, or by writing and 

would be adjusted for inflation annually 

using the same methodology as the table 

in paragraph 2804.14(b). The table now 

only includes the existing definition of 

the monitoring categories in terms of 

hours worked, instead of providing 

specific dollar amounts. This change 

was made to avoid either adjusting the 

table each year through a rulemaking or 

relying on outdated material. The 

current monitoring fee schedule may 

also be found at http://www.blm.gov. 

This paragraph also provides that you 

may pay directly to another Federal 

agency their incurred costs in 

monitoring your grant instead of paying 

the fee to the BLM. 

New section 2805.20 would provide 

for the bonding requirements for all 

grant holders or lessees. This 

information would be moved from the 

existing section 2805.12. Bonds are 

required only at the BLM’s discretion, 

but this expanded section explains the 

specifics should a bond be required. 

Specific bonding requirements for solar 

and wind energy development are also 

outlined in paragraphs (b) and (c) of this 

section. 

New paragraph 2805.20(a) would 

provide that, if required by the BLM, 

you must obtain or certify that you have 

obtained a performance and reclamation 

bond or other acceptable bond 

instrument to cover any losses, 

damages, or injury to human health or 

damages to property or the environment 

in connection with your use of an 

authorized right-of-way. This paragraph 

includes the language from existing 

paragraph 2805.12(g), which is the 

section that details bonding 

requirements. 

Paragraph 2805.20(a)(1) would require 

that bonds list the BLM as an 

additionally covered party if a State 

regulatory authority requires a bond to 

cover some portion of environmental 

liabilities. If the BLM were not named 

as an additionally covered party for 

such bonds, the BLM would not be 

covered by the instrument. This 

provision would allow the BLM to 

accept the State bond as satisfying a 

portion of the BLM’s bonding 

requirement, thus limiting double 

bonding. 

Under paragraph (a)(1)(i), the State’s 

bond must be redeemable by the BLM. 

If such instrument is provided to the 

BLM and it is not redeemable, the BLM 

would be unable to use the bond for its 

intended purpose(s). 

Under paragraph (a)(1)(ii), the State’s 

bond must be held or approved by a 

State agency for the same reclamation 

requirements as the BLM requires. 

Under paragraph (a)(1)(iii), the State’s 

bond must provide the same or greater 

financial guarantee than the BLM 

requires for the portion of 

environmental liabilities covered by the 

State’s bond. 

Under paragraph 2805.20(a)(2) a bond 

must be approved by the BLM 

authorized officer. This approval 

ensures that the bond meets the BLM’s 

standards. Under paragraph 

2805.20(a)(3), the amount would be 

determined based on an RCE, and must 

also include the BLM’s costs in 

administering a reclamation contract. As 

defined in section 2801.5, the RCE 

identifies an appropriate amount for 

financial guarantees for uses of the 

public lands. Both of these paragraphs 

contain a stipulation that they do not 

apply to leases issued under subpart 

2809. Bonds issued under subpart 2809 

for leases inside designated leasing 

areas have standard amounts. Bond 

acceptance and amounts for solar and 

wind energy facilities outside of 

designated leasing areas are discussed 

in paragraphs (b) and (c) of this section. 

Proposed paragraph 2805.20(a)(4) 

would require that a bond be submitted 

on or before the deadline provided by 

the BLM. Current regulations have no 

such provision and this revision would 

enable the BLM to collect bonds in a 

timely manner. Timely submittal of a 

bond would promote efficient 

stewardship of the public lands and 

ensure that the bond amount provided 

would be acceptable to the BLM and 

available prior to beginning on-theground activities. 

Paragraph 2805.20(a)(5) would outline 

the components to be addressed when 

determining a RCE. They include 

environmental liabilities, maintenance 

of equipment and facilities, and 

reclamation of the right-of-way. This 

paragraph consolidates and presents 

what liabilities the bond must cover. 

Under paragraph 2805.20(a)(6), a 

holder of a grant or lease may ask the 

BLM to accept a replacement bond. The 

BLM must review and approve the 

replacement bond before accepting it. 

Should a replacement bond be accepted, 

the surety company for the old bond is 

not released from obligations that 

accrued while the old bond was in effect 

unless the new bond covers such 

obligations to the BLM’s satisfaction. 

This gives the grant holder flexibility to 

find a new bond, potentially reducing 

their costs, while ensuring that the 

right-of-way is adequately bonded. 

A holder of a grant or lease would be 

required to notify the BLM that 

reclamation has occurred under 

paragraph 2805.20(a)(7). If the BLM 

determines reclamation is complete, the 

BLM may release all or part of the bond 

that covers these liabilities. However, 

paragraph 2805.20(a)(8) reiterates that a 

grant holder is still liable in certain 

circumstances under existing section 

2807.12. Despite the bonding 

requirements of this section, grant 

holders are liable if the BLM releases all 

or part of your bond, the bond amount 

does not cover the cost of reclamation, 

or even if no bond remains in place. 

New paragraphs 2805.20(b) and 

2805.20(c) would identify specific bond 

requirements for solar energy 

development and wind energy 

development, respectively, outside of 

designated leasing areas. Holders of a 

solar or wind energy grant outside of 

designated leasing areas would be 

required to submit an RCE to help the 

BLM determine the bond amount. The 

bond amount would be no less than 

$10,000 per acre for solar energy 

development grants and no less than 

$20,000 per authorized turbine for wind 

energy development grants. Bond 

amounts for short term grants for wind 

energy site or project testing would be 

no less than $2,000 per authorized 

meteorological tower. These minimum 

bond amounts for lands outside of 

designated leasing areas would be the 

standard bond amounts inside of 

designated leasing areas. 

The BLM completed a recent review 

of existing bonded solar and wind 

energy projects and the BLM based the 

bond amounts in this proposed rule on 

the information discovered during this 

review. When determining these bond 

amounts, the BLM considered potential 

liabilities associated with the lands 

affected by the rights-of-way, such as 

cultural values, wildlife habitat, and 

scenic values. The range of costs 

included in this review represented the 

cost differences in performing 

reclamation activities for solar and wind 

energy developments throughout the 

various geographic regions the BLM 

manages. The BLM used this review to 

determine an appropriate bond amount 

to cover potential liabilities associated 

with solar and wind energy projects. 


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Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Proposed Rules 59043 

Minimum bond amounts were set for 

solar development for each acre of 

authorization because the activities 

authorized encumber 100 percent of the 

lands and are exclusive to other uses. 

The range of bond amounts for solar 

energy development was approximately 

$10,000 to $18,000 per acre of the 

rights-of-way on public lands. Minimum 

bond amounts for wind energy 

development were set for each wind 

turbine authorized on public land 

because the encumbrance is factored at 

10 percent and is not exclusive to other 

uses. The review showed that the range 

of bond amounts for wind energy 

development varied between $22,000 

and $60,000 per wind turbine. 

The heading of section 2806.12 would 

be changed to ‘‘When and where do I 

pay rent?’’ New paragraph 2806.12(a) 

would describe the proration of rent for 

the first year of a grant. Specific dates 

are used for proration to prevent any 

confusion for grant holders or the BLM. 

Rent is prorated for the first partial year 

of a grant, since the use of public lands 

in such situations is only for a partial 

year. Paragraph (a)(2) of this section 

explains that if you have a short term 

grant, you may request that the BLM bill 

you for the entire duration of the grant 

in the first payment. Some short term 

grant holders may wish to pay this 

amount up front. 

New paragraph (d) of section 2806.12 

would direct right-of-way grant holders 

to make rental payments as instructed 

by the BLM or as provided for by 

Secretarial order or legislative authority. 

This provision acknowledges that the 

Secretary or Congress may take action 

that could affect rents and fees. The 

BLM would provide payment 

instructions for grant holders, which 

would include where payments may be 

made. 

Section 2806.13 would be retitled 

‘‘What happens if I do not pay rents or 

fees or if I pay the rents or fees late?’’ 

This change addresses the addition of 

new paragraph (e) that would provide 

authority for the BLM to retroactively 

bill for uncollected or under-collected 

rents and fees. The BLM would collect 

rent if: (1) A clerical error is identified; 

(2) A rental schedule adjustment is not 

applied; or (3) An omission or error in 

complying with the terms and 

conditions of the authorized right-ofway is identified. 

Paragraph (a) of this section would be 

amended by removing language from 

the existing rule that a fee for a late 

rental payment may not exceed $500 per 

authorization. The BLM has determined 

that the current $500 limit is not a 

sufficient financial incentive to ensure 

the timely payment of rent. Therefore, 

under this proposed rule, late fees 

would be proportionate to late rental 

amounts. A penalty proportionate to the 

rental amount would provide more 

incentive for the timely payment of 

rents to the BLM. The BLM also added 

the term ‘‘fees’’ so the MW capacity fees 

for solar and wind energy development 

grants and leases may be retroactively 

collected. 

New paragraph (g) of this section 

would allow the BLM to condition any 

further activities associated with the 

right-of-way on the payment of 

outstanding payments. The BLM 

believes that this consequence imposed 

for outstanding payments would be 

further incentive to timely pay rents to 

the BLM. 

In section 2806.20, the address to 

obtain a current rent schedule for linear 

rights-of-way would be updated. District 

offices would also be added to State and 

field offices as a location at which you 

may request a rent schedule. These are 

minor corrections made to provide 

current information to the public. 

A technical correction in 2806.22 

would correct the acronym IPD–GDP, 

referring to the Implicit Price Deflator 

for Gross Domestic Product. 

Section 2806.23 would be amended 

by removing paragraph (b), which refers 

to the 2-year phase-in of the linear rent 

schedule in 2009 and renumbering the 

existing paragraphs. This language 

would be removed since the phase-in 

for the updated rent schedule ended in 

2011 and thus, is no longer applicable. 

Paragraph 2806.24(c) would explain 

how the BLM prorates the first year 

rental amount. The proposed rule would 

add the option to pay rent for multiple 

year periods. The new language would 

require payment for the remaining 

partial year along with the first year, or 

multiples thereof, if proration applies. 

Section 2806.30 would be amended 

by removing the communications site 

rent schedule table. The rent schedule 

may be found at section 2806.70. 

Paragraph (b) would be removed and 

paragraph (c) would be redesignated as 

new paragraph (b). 

Paragraph 2806.30(a)(1) would be 

revised to update the mailing address. 

Paragraphs 2806.30(a)(2) would be 

revised by removing references to the 

table that would be removed. This 

paragraph would still describe the 

methodology for updating the schedule, 

but would direct the reader to the BLM’s 

Web site or offices instead. 

Paragraph 2806.34(b)(4) would be 

revised to fix a citation in the existing 

regulations that is incorrect. 

Paragraphs 2806.43(a) and 2806.44(a) 

would each be revised by changing the 

cross-reference from section 2806.50 to 

section 2806.70. Section 2806.50 would 

be redesignated as section 2806.70 and 

these citations must be updated to 

reflect this change. 

Sections 2806.50 and 2806.60 would 

provide new rules for the rents and fees 

of solar and wind energy development, 

respectively. The rents and fees 

described in these sections, along with 

the bidding process, would help the 

BLM receive fair market value for the 

use of the public lands. There are 

similarities between rents for solar and 

wind, as well as between rents for lands 

inside and outside of designated leasing 

area. These similarities are discussed 

below and include acreage and MW 

capacity fees, phase-ins, and 

adjustments. For some of these, several 

components comprise a single element 

of the rent and will be discussed here. 

Where there are differences in the solar 

rent provisions, they are discussed in 

sections 2806.52 and 2806.54, and for 

wind rents, they are discussed in 

sections 2860.62 and 2860.64. The 

differences between inside and outside 

of designated leasing areas will be 

identified and discussed in the sectionby-section analysis. 

Section 2806.50 would be retitled 

‘‘Rents for solar energy rights-of-way.’’ 

The existing regulation at section 

2806.50 would be redesignated as new 

section 2806.70. Revised section 

2806.50 would require a holder of a 

solar energy right-of-way authorization 

to pay annual rent for right-of-way 

authorizations both inside and outside 

of a designated leasing area. Those rightof-way holders with authorizations 

located outside a designated leasing area 

would pay rent for a grant and those 

right-of-way holders with authorizations 

inside designated leasing areas would 

pay rent for a lease. Rent for both types 

of right-of-way authorizations would 

consist of an acreage rent and MW 

capacity fee. The acreage rent would be 

paid in advance, prior to the issuance of 

an authorization, and the MW capacity 

fee would be phased-in. Initial acreage 

rent and MW capacity fee would be 

calculated, charged, and prorated 

consistent with right-of-way 

requirements at sections 2806.11 and 

2806.12. Rent for solar authorizations 

would vary depending on the number of 

acres, technology of the solar 

development, and whether the right-ofway authorization is a grant or lease. 

New section 2806.52 would be titled 

‘‘Rent for solar energy development 

grants.’’ This section would require a 

grant holder to pay rent annually based 

on the acreage rent and MW capacity 

fee. 

New paragraph 2806.52(a), ‘‘Acreage 

rent,’’ would describe the per-acre 


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59044 Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Proposed Rules 

county rate, acreage rent payment, and 

adjustments for solar grants. Acreage 

rent, as defined in section 2801.5, 

means rent assessed for solar energy 

development grants and leases that is 

determined by the number of acres 

authorized for the grant or lease times 

the per-acre county rate. 

Under new paragraph 2806.52(a)(1), 

the acreage rent would be calculated by 

multiplying the number of acres 

(rounded up to the nearest tenth of an 

acre) within the authorized area times 

the per-acre county rate in effect at the 

time the authorization is issued. Under 

paragraph 2806.52(a)(1), the initial peracre county rate would be established at 

double the per-acre rent value for each 

respective county using the BLM’s 

linear rent schedule (see paragraph 

2806.20(c)). The per-acre county rates 

used for linear right-of-way grants 

reflect a 50 percent encumbrance factor, 

while a 100 percent encumbrance factor 

is used to determine acreage rent for 

solar energy right-of-way authorizations 

since solar energy facilities generally 

encumber 100 percent of the authorized 

acreage to the exclusion of other public 

land uses. Therefore, doubling the peracre county rate for linear rights-of-way 

would reflect the 100 percent 

encumbrance of solar energy 

development. An annual adjustment 

would be made to the per-acre county 

rates based upon the IPD–GDP, as 

determined under existing paragraph 

2806.22(a). These adjusted rates would 

be effective on January 1 of each year. 

A copy of the per-acre county rates for 

solar energy development would be 

made available by the BLM upon 

request. 

Acreage rent example: The 2012 

acreage rent for a 4,000 acre solar energy 

development grant in Clark County, 

Nevada is $782,240 (4,000 acres × 

$195.56 per acre) while the 2013 acreage 

rent would be $797,120 (4,000 acres × 

$199.28 per acre) to reflect the 1.9 

percent annual acreage rent adjustment. 

New paragraph 2806.52(a)(2) would 

provide that acreage rent would be 

required each year, regardless of the 

stage of development or status of 

operations of a grant. Acreage rent 

would be paid for the public land 

acreage described in the right-of-way 

grant prior to issuance of the grant and 

prior to the start of each subsequent year 

of the authorized term. There is no 

phase-in period for acreage rent, which 

must be paid initially upon issuance of 

the grant. A rental payment plan may be 

requested and approved by the BLM 

State Director consistent with section 

2806.15(c). 

New paragraph 2806.52(a)(3) would 

provide that the BLM would adjust the 

per-acre county rates each year based on 

the average annual change in the IPD– 

GDP as determined under paragraph 

2806.22(a). The acreage rent also would 

adjust each year for solar energy 

development grants outside designated 

leasing areas. The BLM would use the 

most current per-acre county rates to 

calculate the acreage rent for each year 

of the grant term. The BLM posts the 

current per-acre county rates for solar 

energy development grants and leases at 

http://www.blm.gov/wo/st/en/prog/

energy/renewable_energy.html. 

New paragraph 2806.52(b), ‘‘MW 

capacity fee’’ would describe the 

components used to calculate the MW 

capacity fee. Paragraphs (b)(1), (b)(2), 

(b)(3), and (b)(4) explain the MW rate, 

MW rate schedule, adjustments to the 

MW rate, and the phase-in of the MW 

rate. 

The MW capacity fee, as defined in 

section 2801.5, would mean fees paid, 

in addition to the acreage rent, for solar 

energy development grants and leases 

based on the approved MW capacity of 

the solar energy authorization. The MW 

capacity fee captures the value of the 

increased industrial use of the right-ofway, above the limited rural or 

agricultural land value captured by the 

acreage rent schedule. The MW capacity 

fee would vary depending on the size 

and type of solar project and technology 

and whether the solar energy right-ofway authorization is a grant (if located 

outside a designated leasing area) or a 

lease (if located inside a designated 

leasing area). The MW capacity fee is 

paid annually when electricity 

generation begins or as approved, 

within the approved POD, whichever 

comes first. If the electricity generation 

does not begin on or before the time 

approved in the POD, the BLM will 

begin charging a MW capacity fee at the 

time identified in the POD. 

The POD submitted to the BLM would 

identify the stages of development for 

the solar or wind energy project’s energy 

generation. The POD stages would 

describe development steps for the solar 

or wind energy facility and the time by 

which energy operations would begin. 

Each step of development would 

generally separate the project into a 

different energy development stage. The 

POD and its stages represent the agreedto understanding between the grant 

holder and the BLM of what the status 

of the facility would be at any given 

point in time after lease or grant 

issuance. The BLM would generally 

allow up to three development stages for 

a solar energy project. As the facility 

becomes operational, the approved MW 

capacity would increase as would be 

described in the POD. These stages are 

part of the approved POD and would 

allow the BLM to enforce the diligence 

requirements associated with the grant. 

The ‘‘MW capacity fee’’ is the total 

authorized MW capacity approved by 

the BLM for the project, or an approved 

stage of development, multiplied by the 

appropriate MW rate. The MW capacity 

fee is prorated and would be paid for 

the first partial calendar year in which 

generation of electricity starts or when 

identified within an approved POD. 

New paragraph 2806.52(b)(1) would 

identify the ‘‘MW rate’’ as a formula that 

is the product of four components: The 

hours per year multiplied by the net 

capacity factor, multiplied by the MWh 

price, multiplied by the rate of return. 

This can be represented by the 

following equation: MW Rate = H (8,760 

hrs) × N (net capacity factor) × MWh 

(Megawatt Hour price) ×R (rate of 

return). The components of this formula 

are discussed here at greater length. 

Hours per year. This component of 

the MW rate formula is the fixed 

number of hours in a year (8,760). The 

BLM would use this number of hours 

per year for both standard and leap 

years. 

Net capacity factor. The net capacity 

factor is the average operational time 

divided by the average potential 

operational time of a solar or wind 

energy development, multiplied by the 

current technology efficiency rates. A 

net capacity factor is used to identify 

the efficiency at which a project 

operates. The net capacity factor is 

influenced by several common factors 

such as geographic location and 

topography and the technology 

employed. Other factors can influence 

the specifics of a project’s net capacity 

factor. For example, placement of a solar 

panel in the direction that captures the 

most sun may increase the efficiency at 

which a project operates. These other 

factors tend to be specifically related to 

a project and its design and layout. An 

increase in the net capacity factor is 

most readily seen when a developer 

sites a project geographically for the 

energy source they are seeking and 

utilizes the best technology for 

harnessing the power. An example of 

this would be placing wind turbines in 

a steady wind speed location with a 

wind turbine designed for optimal 

performance at those wind speeds. 

The efficiency rates may vary by 

location for each specific project, but 

the BLM proposes to use the national 

average for each technology. Efficiency 

rates for solar and wind energy 

technology can be found in the market 

reports provided by the DOE through its 

Lawrence Berkeley National Laboratory. 

For solar energy see ‘‘Utility-Scale Solar 


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Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Proposed Rules 59045 

2012’’ at http://emp.lbl.gov/sites/all/

files/lbnl-6408e_0.pdf, and for wind 

energy, please see ‘‘2012 Wind 

Technologies Market Report’’ at http:// 

emp.lbl.gov/sites/all/files/lbnl6356e.pdf. This proposed rule would 

establish the net capacity factor for each 

technology as follows: 

Technology type 

Net 

capacity 

factor 

(percent) 

Photovoltaic (PV) ........................ 20 

Concentrated Photovoltaic (CPV) 

or Concentrated Solar Power 

(CSP) ...................................... 25 

CSP w/Storage Capacity of 3 

Hours or More ......................... 30 

Wind Energy ............................... 35 

The BLM would periodically review 

the efficiency factors for the various 

solar and wind technologies, but would 

not adjust this component of the MW 

rate formula except through new 

rulemaking. The BLM is considering 

basing the net capacity factors for these 

technologies on an average of the annual 

capacity factors listed by the EIA. This 

would allow the BLM to regularly 

update these factors absent rulemaking. 

Please specifically comment on whether 

and how the BLM could use the EIA’s 

data to determine the net capacity 

factors. The EIA posts an average of the 

capacity factors on its Web site at http:// 

www.eia.gov/electricity/monthly/epm_

table_grapher.cfm?t=epmt_6_07_b. 

Basing the net capacity factors for these 

technologies on EIA’s posted averages 

would allow the BLM to adjust these 

factors without future rulemakings. 

MWh price. This component of the 

MW rate formula is the 5-year average 

of the annual weighted average 

wholesale prices per MWh for the major 

ICE trading hubs serving the 11 Western 

States of the continental United States. 

This wholesale price of the ICE trading 

hubs is the price paid for energy on the 

open market between power purchasers 

and is an indication of current pricing 

for the purchase of power. 

The wholesale price of electricity is 

tracked daily on the ICE and is readily 

accessible at https://beta.theice.com/

marketdata/reports/ReportCenter.shtml. 

Should the ICE or its successor in 

interest discontinue tracking the 

wholesale price of electricity, the 5-year 

average of the annual weighted average 

wholesale price per MWh would be 

calculated using comparable market 

prices. 

Pricing may be based upon a daily 

high and low value, as well as an 

average value. When determining the 

proposed MWh price, the BLM used the 

yearly average value for each of the 

trading hubs that cover the BLM public 

lands in the West. The BLM then 

averaged the yearly hub values for the 

most recent 5-year timeframe to 

establish the annual weighted average 

wholesale prices per MWh, which is in 

turn used to determine the MWh price. 

The MWh price would be initially 

established at $45 per MWh which for 

the years 2008 through 2012, is rounded 

up to the nearest five dollar increment. 

ANNUAL WEIGHTED AVERAGE WHOLESALE PRICE PER MWH BY TRADING HUB

Year 

MidColumbia 

hub 

Paloverde 

hub 

Four 

Corners hub Mead hub SP15–EZ CA hub * NP15 Hub 

California 

Oregon 

border hub 

West US 5-yr. 

average 

2008 ......... $65.32 $72.43 $72.46 $76.15 $81.20 .................... $74.54 $73.68 ....................

2009 ......... 35.85 34.90 35.60 36.70 38.24 39.22 38.28 36.97 ....................

2010 ......... 35.88 38.84 40.13 40.16 40.41 40.29 38.87 39.23 ....................

2011 ......... 29.42 36.31 36.66 37.02 36.39 36.29 32.86 34.99 ....................

2012 ......... 22.78 29.65 30.59 30.97 35.41 32.74 26.96 29.87 42.95 

Rate of return. The rate of return 

component used in the MW rate 

schedule reflects the relationship of 

income (to the property owner) to 

revenue generated from authorized solar 

or wind energy development facilities 

on the encumbered property. A rate of 

return for the developed land can vary 

from 7 percent to 12 percent and is 

typically around 10 percent, as is 

identified in the market study 

completed by the Office of Valuation 

Services. These rates take into account 

certain risk considerations, i.e., the 

possibility of not receiving or losing 

future income benefits, and do not 

normally include an allowance for 

inflation. 

A holder seeking a right-of-way from 

the BLM must show that it is financially 

able to construct and operate the 

facility. In addition, the BLM may 

require surety or performance bonds 

from the holder to facilitate a right-ofway’s compliance with the terms and 

conditions of the authorization, 

including any rental obligations. This 

reduces the risk and should allow the 

BLM to utilize a ‘‘safe rate,’’ i.e., the 

prevailing rate on guaranteed 

government securities that include an 

allowance for inflation. Therefore, the 

BLM proposes to establish a rate of 

return that adjusts every 5 years to 

reflect the preceding 10-year average of 

the 20-year U.S. Treasury bond yield, 

rounded up to the nearest one-half 

percent, with a minimum rate of 4 

percent. Applying this criterion, the 

initial rate of return is 4.5 percent (the 

10-year average of the 20-year U.S. 

Treasury bond yield (4.3 percent), 

rounded up to the nearest one-half 

percent). As provided under paragraph 

(b)(2) of this section, the MW rate 

schedule is made available to the public 

in the MW Rate Schedule for Solar and 

Wind Energy Development. The MW 

rate schedule is available to the public 

at any BLM office, via mail by request, 

or at http://www.blm.gov/wo/st/en/prog/ 

energy/renewable_energy.html. 

MW RATE SCHEDULE FOR SOLAR AND WIND ENERGY DEVELOPMENT

[2014–2018] 

Type of energy technology Hours per year Net capacity 

factor MWh Price Rate of return MW Rate 2014—2018 

Solar—Photovoltaic (PV) ..................................................... 8,760 0.20 $45 0.045 $3,548 

Solar—Concentrated photovoltaic (CPV) and concentrated 

solar power with less than 3 hours of storage capacity 

(CSP) ................................................................................ 8,760 0.25 45 0.045 4,435 


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59046 Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Proposed Rules 

MW RATE SCHEDULE FOR SOLAR AND WIND ENERGY DEVELOPMENT—Continued 

[2014–2018] 

Type of energy technology Hours per year Net capacity 

factor MWh Price Rate of return MW Rate 2014—2018 

Solar—Concentrated solar power with storage capacity of 

3 hours or more (CSP w/storage) .................................... 8,760 0.30 45 0.045 5,322 

Wind—All technologies ........................................................ 8,760 0.35 45 0.045 6,209 

Periodic adjustments in the MW rate 

are discussed under paragraph 

2806.52(b)(3). Under this rule, 

adjustments to the MW rate would 

occur every 5 years by recalculating the 

MWh price as provided in paragraph 

2806.52(b)(3)(i) and by recalculating the 

rate of return as provided in paragraph 

2806.52(b)(3)(ii). The MWh price and 

the rate of return would be recalculated 

for the next 5-year period starting in 

2020. 

In paragraph 2806.52(b)(3)(i), the 

MWh price would be initially at $45 per 

MWh for calendar years 2014 through 

2018. However, the MWh price of 

electricity would be recalculated every 

5 years beginning in 2018, by 

determining the 5-year average of the 

annual weighted average wholesale 

price per MWh for the major ICE trading 

hubs serving the 11 Western States of 

the continental United States for the 

years 2013 through 2017, rounded to the 

nearest five-dollar increment. The 

resulting MWh price would be used to 

determine the MW rate for each 

subsequent 5-year interval. The 

availability of data on which the MWh 

price would be based is discussed in 

this preamble in the discussion of 

section 2801.5. 

In paragraph 2806.52(b)(3)(ii), the rate 

of return is initially established at 4.5 

percent, which is the 10-year average 

(2003 through 2012) of the 20-year U.S. 

Treasury bond yield (4.3 percent), 

rounded up to the nearest one-half 

percent (4.5 percent). The rate of 4.5 

percent would be used for calendar 

years 2014 through 2018. However, the 

rate of return would be recalculated 

every 5 years beginning in 2018, by 

determining the 10-year average of the 

20-year U.S. Treasury bond yield for 

calendar years 2008 through 2017, 

rounded up to the nearest one-half 

percent. The resultant rate of return, of 

not less than four percent, would be 

used to determine the MW rate for 

calendar years 2019 through 2023, and 

so forth. The 20-year U.S. Treasury bond 

yields are tracked daily and are readily 

accessible at http://www.treasury.gov/

resource-center/data-chart-center/

interest-rates/Pages/

TextView.aspx?data=longtermrateAll. 

To allow for a reasonable and diligent 

testing and operational period, under 

paragraph 2806.52(b)(4)(i), the BLM 

would provide for a 3-year phase-in of 

the MW capacity fee. This would apply 

after the start of generation operations 

for solar energy development grants 

outside designated leasing areas, at the 

rates of 25 percent for the first year, 50 

percent the second year, and 100 

percent the third and subsequent years 

of operations. The first year is the first 

partial calendar year of operations and 

the second year is the first full year. For 

example, if a facility begins producing 

electricity in June 2014, 25 percent of 

the capacity fee would be assessed for 

June through December of 2014 and 50 

percent of the capacity fee would be 

assessed for January through December 

of 2015. One hundred percent would be 

assessed thereafter. 

Under paragraph 2806.52(b)(4)(ii), the 

proposed rule further explains the 

staged development of a right-of-way. 

Such staged development, consistent 

with the proposed rule in paragraph 

2805.12(c)(3)(iii), would have no more 

than three development stages, unless 

the BLM approves more development 

stages in advance. The 3-year phase-in 

of the MW rate applies individually to 

each stage of the solar development. The 

MW capacity fee is calculated using the 

authorized MW capacity approved for 

that stage multiplied by the MW rate for 

that year of the phase-in, plus any 

previously approved stages multiplied 

by the MW rate. 

New section 2806.54 would be titled 

‘‘Rents and fees for solar energy 

development leases inside designated 

leasing areas.’’ The introductory 

paragraph to section 2806.54 requires a 

holder of a solar energy lease obtained 

through the competitive process under 

subpart 2809 to pay an annual acreage 

rent and MW capacity fee. The acreage 

rent would be paid in advance, prior to 

issuing a lease, and the MW capacity fee 

would be phased-in and calculated 

upon the total authorized MW capacity 

of the solar energy development. Rent or 

fees for solar authorizations would vary 

depending on the number of acres, 

technology of the solar development, 

and whether the right-of-way 

authorization is a grant or lease. 

There are many similarities in the rent 

for leases and grants for solar 

development. This section would 

reference the rent of grants outside of 

designated leasing areas as appropriate 

and provide further discussion where 

the rent for a lease differs from that of 

a grant. 

Paragraph (a) of this section identifies 

the acreage rent for a solar lease, which 

would be calculated in the same way as 

acreage rent for solar grants outside a 

designated leasing area (see paragraph 

2806.52(a)). The acreage rent amount for 

a lease would be calculated and paid 

prior to issuing a lease. County rates and 

payment of the acreage rent are the same 

for leases as they are for grants. For the 

per-acre county rates, see paragraph 

2806.52(a)(1). For the acreage rent 

payment, see paragraph 2806.52(a)(2). 

New paragraph 2806.54(a)(3) 

describes the adjustments to the acreage 

rent that would be made for a lease. 

Once the acreage rent is determined for 

a lease under paragraph (a) of this 

section, no further adjustments in the 

annual acreage rent would be made for 

10 years and each subsequent 10-year 

period after that. The first acreage rent 

adjustment would not be made until 

year 11 of the lease term, and the next 

adjustment would not be made until 

year 21 of the lease term, ending on year 

30 of the lease. During the 10-year 

periods, the acreage rent would remain 

constant and not be adjusted. The BLM 

would adjust the per-acre county rates 

each year based on the average annual 

change in the IPD–GDP, as determined 

under paragraph 2806.22(a). Due to the 

IPD–GDP adjustment, the per-acre 

county acreage rent also adjusts each 

year. The BLM would use the most 

current per-acre county rates to 

calculate the acreage rent for the next 

10-year period of the lease. 

Paragraph (b) of this section would 

identify the MW capacity fee for solar 

development leases, which is to be 

calculated in the same way as the MW 

capacity fee for solar grants outside a 

designated leasing area. The phase-in of 

the MW capacity fee is different from 

grants and is described below. For the 

MW rate, see paragraph 2806.52(b)(1). 

For the MW rate schedule, see 

paragraph 2806.52(b)(2). For periodic 


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adjustments in the MW rate, see 

paragraph 2806.52(b)(3). 

New paragraph 2806.54(c) would 

describe the MW rate phase-in for solar 

energy development leases. The MW 

rate in effect at the time the lease is 

issued will be used for the first 20 years 

of the lease. The MW rate in effect in 

year 21 of the lease will be used for 

years 21–30 of the lease. 

Paragraph (c)(1) would provide for a 

10-year phase-in of the MW capacity 

fee, plus the initial partial year, if any. 

The MW capacity fee would be 

calculated by multiplying the 

authorized MW capacity by 50 percent 

of the MW rate for the applicable type 

of solar technology employed by the 

project. The MW rate schedule is 

provided for under paragraph 

2806.52(b)(2). The phase-in proposed 

for solar leases identified would be 

applied to the MW rate for either solar 

or wind energy leases (see paragraph 

2806.64(c)). 

New paragraph 2806.54(c)(2) would 

apply to the MW rate phase-in for years 

11 through 20 of the lease. The MW 

capacity fee for years 11 through 20 

would be calculated by multiplying the 

MW capacity by 100 percent of the MW 

rate. 

New paragraph 2806.54(c)(3) would 

apply to the MW rate for years 21 

through 30 of the lease. The MW 

capacity fee for years 21 through 30 

would be calculated by multiplying the 

MW capacity by 100 percent of the MW 

rate. 

If the POD identifies that electricity 

generation would begin after year 10 of 

the lease, the MW capacity fee would be 

calculated under paragraph 

2806.54(c)(2) or 2806.54(c)(3), as 

appropriate. 

New paragraph 2806.54(c)(4) would 

describe the MW capacity fee of the 

lease if it were to be renewed. The MW 

capacity fee would be calculated using 

the current MW rates at the beginning 

of the new lease period and remain at 

that rate through the initial 10-year 

period of the renewal term. The MW 

capacity fee would be adjusted using the 

current MW rate at the beginning of 

each subsequent 10-year period of the 

renewed lease term. 

Under paragraph 2806.54(c)(5), the 

proposed rule provides for staged 

development of leases. Such staged 

development, consistent with proposed 

paragraph 2805.12(c)(3)(iii), would have 

no more than three development stages 

unless the BLM approved more 

development stages in advance. The 

MW capacity fee would be calculated 

using the authorized MW capacity 

approved for that stage multiplied by 

the MW rate for that year of the phasein, plus any previously approved stages 

multiplied by the MW rate as described 

in paragraph 2806.54(c). 

MW capacity fee-example 1: The MW 

capacity fee for a 400–MW photovoltaic 

solar energy right-of-way grant would be 

$1,419,200 per year (400 MW × $3,548 

per MW), implemented over a 3-year 

period after the start of electricity 

generation. In the first partial year after 

start of generation in July for a solar 

energy right-of-way, the MW capacity 

fee would be $177,400 (400 MW × 

$3,548 per MW × 25 percent × 0.5 year); 

in the second year after the start of 

electricity generation, the MW capacity 

fee would be $709,600 (400 MW × 

$3,548 per MW × 50 percent × 1.0 year); 

and in the third year after the start of 

electricity generation, and each year 

thereafter, the MW capacity fee would 

be $1,419,200 per year (400 MW × 

$3,548 per MW × 1 year). 

MW capacity fee-example 2: The MW 

capacity fee for a 400 MW concentrated 

PV or concentrated solar power right-ofway grant with less than 3 hours of 

storage capacity would be $1,774,000 

per year (400 MW × $4,435 per MW), 

implemented over a 3-year period after 

the start of electricity generation. In the 

first partial year assuming the start of 

electricity generation in January for a 

solar energy right-of-way, the MW 

capacity fee would be $443,500 (400 

MW × $4,435 per MW × 25 percent × 1 

year); in the second year after the start 

of electricity generation, the MW 

capacity fee would be $887,000 (400 

MW × $4,435 per MW × 50 percent × 1 

year); and in the third year after start of 

generation and each year thereafter, the 

MW capacity fee would be $1,774,000 

per year (400 MW × $4,435 per MW × 

1 year). 

MW capacity fee—example 3: The 

MW capacity fee for a 400 MW 

concentrated solar power right-of-way 

grant with a storage capacity of 3 hours 

or more would be $2,128,800 per year 

(400 MW × $5,322 per MW), 

implemented over a 3-year period after 

the start of electricity generation. 

Assuming generation began in January, 

in the first partial year after the start of 

electricity generation, the MW capacity 

fee would be $532,200 for a solar energy 

right-of-way (400 MW × $5,322 per MW 

× 25 percent × 1 year); in the second 

year after the start of electricity 

generation, the MW capacity fee would 

be $1,064,400 (400 MW × $5,322 per 

MW × 50 percent × 1 year); and in the 

third year after the start of electricity 

generation, and each year thereafter, the 

MW capacity fee would be $2,128,800 

per year (400 MW × $5,322 per MW × 

1 year). 

Acreage rent and MW capacity fee 

example for a solar energy development 

grant: The annual acreage rent and MW 

capacity fee for 2014 for a 400 MW 

photovoltaic solar energy development 

grant located on 4,000 acres in Clark 

County, NV after the phase-in period 

would be $2,231,480. (The acreage rent 

of $812,280 (4,000 acres × $203.07 per 

acre) plus the MW capacity fee of 

$1,419,200 (400 MW × $3,548 per MW) 

equals $2,231,480). 

New section 2806.56 would be titled 

‘‘Rent for support facilities authorized 

under separate grant(s).’’ Under this 

section, support facilities for solar 

development would be authorized 

under a grant. Support facilities could 

include administration buildings, 

groundwater wells, and construction 

laydown and staging areas. Rent for 

support facilities authorized under 

separate grants would be determined 

using the Per Acre Rent Schedule for 

linear facilities under existing paragraph 

2806.20(c). 

New section 2806.60 would be titled 

‘‘Rents and fees for wind energy rightsof-way.’’ Section 2806.60 would require 

a holder of a wind energy right-of-way 

authorization to pay annual rent for 

right-of-way authorizations both inside 

and outside of a designated leasing area. 

Holders of right-of-way authorizations 

that are located outside of a designated 

leasing area would pay rent for a grant 

and holders of right-of-way 

authorizations that are inside designated 

leasing areas would pay rent for a lease. 

Rent for both right-of-way 

authorizations are the same as that for 

solar energy rights-of-way under section 

2806.50 and would consist of an acreage 

rent and MW capacity fee. 

As noted earlier in this preamble, 

there are similarities between rents and 

fees for solar and wind, as well as 

between rents and fees for lands inside 

and outside of designated leasing areas. 

The BLM intentionally designed the 

rents and fees for solar and wind to 

match as closely as possible in order to 

reduce the potential for confusion and 

misunderstanding of the requirements. 

The methodology for calculating rents, 

fees, phase-ins, adjustments, and rate 

proration are the same for wind as for 

solar. Many of the terms and conditions 

of a lease issued under this subpart 

would also be the same. 

Many wind energy rent and fee 

provisions have identical parallels in 

the solar energy rent and fee provisions. 

This analysis will reference the solar 

energy rent and fee discussion when 

appropriate and highlight the 

differences between the regulations for 

wind and solar rents and fees. 


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New section 2806.62 parallels 

proposed section 2806.52, which 

discusses rents and fees for solar energy 

development grants. The discussion on 

all components of the wind energy 

development grant duplicate the 

provisions for solar rents and fees, 

except for paragraph (a)(1) which 

discusses the per-acre county rates. 

Paragraph 2806.62(a) would address 

the acreage rent for wind energy 

development. See paragraph 2806.52(a) 

for a discussion of acreage rent. 

New paragraph 2806.62(a)(1) 

addresses per-acre county rates for wind 

energy development grants. The 

methodology for calculating the acreage 

rent is the same for wind as it is for 

solar, but wind and solar energy have 

different encumbrance factors. Solar 

energy projects encumber 100 percent of 

the land, while wind energy projects 

generally only encumber 10 percent of 

the land. The per-acre county rate is 

calculated using the BLM’s linear rent 

schedule, which is based on a 50- 

percent encumbrance factor. While the 

per-acre county rate for solar would be 

200 percent of the linear rent schedule 

(to represent 100 percent encumbrance), 

the per-acre county rate for wind energy 

would be 20 percent of the linear rent 

schedule (to represent 10 percent 

encumbrance). 

The following chart lists the 

paragraphs where the wind energy 

provision parallels the solar energy 

provision for the same topic. The 

discussion for each relevant wind 

energy provision can be found in the 

preamble under the associated solar 

energy provision. 

Topic Wind Solar 

Acreage Rent Payments .................................................. 43 CFR 2806.62(a)(2) ..................................................... 43 CFR 2806.52(a)(2). 

Acreage Rent Adjustments .............................................. 43 CFR 2806.62(a)(3) ..................................................... 43 CFR 2806.52(a)(3). 

MW Capacity Fee ............................................................. 43 CFR 2806.62(b) .......................................................... 43 CFR 2806.52(b). 

MW Rate .......................................................................... 43 CFR 2806.62(b)(1) ..................................................... 43 CFR 2806.52(b)(1). 

MW Rate Schedule .......................................................... 43 CFR 2806.62(b)(2) ..................................................... 43 CFR 2806.52(b)(2). 

MW Rate Adjustments ..................................................... 43 CFR 2806.62(b)(3) ..................................................... 43 CFR 2806.52(b)(3). 

MW Rate Formula ............................................................ 43 CFR 2806.62(b)(3)(i) .................................................. 43 CFR 2806.52(b)(3)(i). 

Rate of Return .................................................................. 43 CFR 2806.62(b(3)(ii) ................................................... 43 CFR 2806.52(b)(3)(ii). 

MW Rate Phase-in ........................................................... 43 CFR 2806.62(b)(4) ..................................................... 43 CFR 2806.52(b)(4). 

Paragraph 2806.62(b)(4)(i) would 

address the term of the MW rate phasein. Paragraphs (A), (B) and (C) of this 

section address the percentages of the 

phase-in. See paragraph 2806.52(b)(4)(i) 

for a discussion of the term of the MW 

rate phase-in and its paragraphs (A), (B) 

and (C) for the percentages of the phasein. 

Paragraph 2806.62(b)(4)(ii) would 

address the MW rate phase-in for a 

staged development. Paragraph (A) of 

this section addresses the percentages of 

the phase-in and paragraph (B) 

addresses the calculation of the rent for 

the phase-in of a staged development. 

See paragraph 2806.52(b)(4)(ii) for a 

discussion of the MW rate phase-in for 

a staged development, its paragraph (A) 

for the percentages of the phase-in, and 

its paragraph (B) for the calculation of 

the rent for the phase-in of a staged 

development. 

New section 2806.64 would be titled 

‘‘Rent for wind energy development 

leases inside designated leasing areas.’’ 

See section 2806.54 for a discussion of 

all components of rent for a wind energy 

development grant, except for paragraph 

(a)(1), which discusses the per-acre 

county rates, which do not apply to 

wind energy development grants and 

leases. Paragraph 2806.64(a) addresses 

the acreage rent for wind energy leases. 

See paragraph 2806.54(a) for a 

discussion of acreage rent. 

New paragraph 2806.64(a)(1) would 

address per-acre county rates for wind 

energy leases. See paragraph 

2806.62(a)(1) for a discussion of acreage 

rent, which differs from solar energy 

development. The per-acre rents would 

be calculated using the methodology 

discussed in paragraph 2806.62(a)(1), 

which reflects the 10 percent 

encumbrance factor of wind energy 

development. 

The following chart lists the 

paragraphs where the wind energy 

provision parallels the solar energy 

provision for the same topic. The 

discussion for each relevant wind 

energy provision can be found in the 

preamble under the associated solar 

energy provision. 

Topic Wind Solar 

Acreage Rent Payments .................................................. 43 CFR 2806.64(a)(2) ..................................................... 43 CFR 2806.54(a)(2). 

Acreage Rent Adjustments .............................................. 43 CFR 2806.64(a)(3) ..................................................... 43 CFR 2806.54(a)(3). 

MW Capacity Fee ............................................................. 43 CFR 2806.64(b) .......................................................... 43 CFR 2806.54(b). 

MW Rate .......................................................................... 43 CFR 2806.64(b)(1) ..................................................... 43 CFR 2806.52(b)(1). 

MW Rate Schedule .......................................................... 43 CFR 2806.64(b)(2) ..................................................... 43 CFR 2806.52(b)(2). 

MW Rate Adjustments ..................................................... 43 CFR 2806.64(b)(3) ..................................................... 43 CFR 2806.52(b)(3). 

MW Rate Phase-in ........................................................... 43 CFR 2806.64(c) .......................................................... 43 CFR 2806.54(c). 

Years 1–10 ....................................................................... 43 CFR 2806.64(c)(1) ...................................................... 43 CFR 2806.54(c)(1). 

Years 11–20 ..................................................................... 43 CFR 2806.64(c)(2) ...................................................... 43 CFR 2806.54(c)(2). 

Years 21–30 ..................................................................... 43 CFR 2806.64(c)(3) ...................................................... 43 CFR 2806.54(c)(3). 

MW Capacity Fee if Renewed ......................................... 43 CFR 2806.64(c)(4) ...................................................... 43 CFR 2806.54(c)(4). 

MW Capacity for a Staged Development ........................ 43 CFR 2806.64(c)(5) ...................................................... 43 CFR 2806.54(c)(5). 

Rent for Support Facilities ................................................ 43 CFR 2806.66 .............................................................. 43 CFR 2806.56. 

New paragraph 2806.68(a) would 

describe the rent for a wind energy sitespecific testing grant. A minimum rent 

would be established as $100 per year 

for each grant issued. Under this 

section, rent is set by carrying forward 

the site-specific rent amount from 

existing IM 2009–043, Wind Energy 

Development Policy, established by the 

BLM and described further as follows. 

Site specific grants are only authorized 

for one site and would not allow 


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multiple sites to be authorized under a 

single grant; however, a single entity 

may hold more than one grant. If a BLM 

office has an approved small site rental 

schedule, that office may use the rent 

amount established in the small site 

rental schedule, if the rent in the 

schedule charges more than the $100 

minimum rent per year. Small site 

rental schedules are provided to the 

BLM from the Office of Valuation 

Services and are an appraised valuation 

of the land. Such schedules are a 

determination of market value. In lieu of 

annual payments for a site specific wind 

testing grant, a grant holder may pay for 

the entire 3-year term of the grant. See 

paragraphs 2801.9(d)(1) and 

2805.11(b)(2)(i) for further discussion of 

site-specific wind energy testing grants. 

New paragraph 2806.68(b) would 

describe the rent for a wind energy 

project area testing grant. A per-year 

minimum rent would be established at 

$2,000 per authorization or $2 per acre 

for the lands authorized by the grant, 

whichever is greater. Existing rent for 

wind energy project area testing grants 

is at a lower rate than proposed in this 

rule. The appraisal consultation report 

by the Office of Valuation Services 

supports the rent established as 

proposed. Project area grants may 

authorize multiple meteorological or 

instrumentation testing sites. There is 

no additional charge or rent for the 

number of sites authorized under such 

grants. See paragraphs 2801.9(d)(2) and 

2805.11(b)(2)(ii) for further discussion 

of project area wind energy testing 

grants. 

New section 2806.70 would be a 

revision of existing section 2806.50 and 

would be retitled ‘‘How will BLM 

determine the rent for a grant or lease 

when the rent schedules do not apply?’’ 

This section would provide guidance on 

how the BLM would determine the rent 

for a grant or lease when the linear rent 

schedule, the communication use rent 

schedule, the solar rental provisions, or 

the wind rental provisions are not 

applicable. The only change to this 

redesignated paragraph is that solar and 

wind energy rights-of-way are included 

in the listed rent schedules. 

Section 2807.11 would be updated to 

clarify requirements for changing a 

right-of-way grant. Under the proposed 

changes to paragraph 2807.11(b), 

substantial deviations would require an 

amendment to a right-of-way grant. 

Substantial deviations include changing 

the boundaries of the right-of-way, 

major improvements not previously 

approved by the BLM, or a change in 

use for the right-of-way. Substantial 

deviations to a grant may require 

adjustment to a grant or lease rent and 

fees under part 43 CFR 2806, or bonding 

requirements under part 43 CFR 2805 

and 2809 that reflect proposed changes 

that are approved by BLM. 

New paragraph (d) of this section 

would require you to contact the BLM 

when site-specific circumstances or 

conditions arise resulting in the need for 

changes to an approved right-of-way 

grant, POD, site plan, or other 

procedures that are not substantial 

deviations in location or use. Examples 

of minor deviations would be slight 

changes in location of improvements in 

the POD or design of facilities that are 

all within the existing boundaries of an 

approved right-of-way. Other such 

nonsubstantial deviations may include 

the modification of mitigation measures 

or project materials. Project materials 

would include the POD, site plan, and 

other documents that are created or 

provided by a grant holder. These 

project materials are a basis for the 

BLM’s inspection and monitoring 

activities and are often appended to a 

right-of-way grant. The requested 

changes would be considered as grant or 

lease modification requests. Each 

nonsubstantial deviation would require 

review and approval by the authorized 

officer. New paragraph (e) would 

require right-of-way holders to contact 

the BLM to correct discrepancies or 

inconsistencies. 

New paragraph 2807.17(d) would 

consist of the provisions from existing 

section 2809.10. This language would be 

moved to section 2807.17 in order to 

make room for the renewable energy 

right-of-way leasing provisions. 

The title of existing section 2807.21 

would be changed to ‘‘May I assign or 

make other changes to my grant or 

lease?’’ The existing regulations should, 

but do not, cover all instances where an 

assignment is necessary and the section 

also needs to be revised to address 

situations in which assignments are not 

required. The proposed changes are 

necessary to: (1) Add and describe 

additional changes to a grant other than 

assignments; (2) Clarify what changes 

would require an assignment; and (3) 

Specify that right-of-way leases issued 

under part 2809 are subject to the 

regulations in this section. Without the 

BLM’s approval of a right-of-way grant 

assignment, a private party’s business 

transaction would not be recognized 

and this lack of recognition could 

hinder a new holder’s management and 

administration of a right-of-way grant. 

This rule would clarify the 

responsibilities of a grant holder should 

such private party transactions occur. 

The proposed rule would add to 

paragraph (a) two events that may 

necessitate an assignment: (1) A 

voluntary transfer by the holder of any 

right or interest in the right-of-way grant 

to a third party (e.g., a change in 

ownership); and (2) A change in control 

involving the right-of-way grant holder 

such as a corporate merger or 

acquisition. 

New paragraph (b) would clarify that 

a change in the holder’s name only does 

not require an assignment and new 

paragraph (c) would clarify that changes 

in a holder’s articles of incorporation do 

not require an assignment. As a result, 

the potential costs of an assignment 

would not be involved with a name 

change or the change in the articles of 

incorporation. 

Existing paragraph (b) would be 

revised and redesignated as new 

paragraph (d). As revised, this provision 

would require a potential assignee to 

pay application fees in addition to 

processing fees. This revision would 

establish consistency between 

applications for assignments and other 

applications for rights-of-way. For 

example, this proposed rule (at section 

2804.12(a)(8)) would require a 

nonrefundable application filing fee for 

solar and wind energy applications. As 

revised, paragraph (d) would also 

provide that the BLM will not approve 

any assignment until the assignor makes 

any outstanding payments that are due. 

Existing paragraph (c) would be 

redesignated, unchanged, as paragraph 

(e). Existing paragraph (d) would be 

revised and redesignated as paragraph 

(f). As amended, paragraph (f) would 

except leases issued under revised 43 

CFR subpart 2809 (i.e., inside a 

designated leasing area) from the BLM’s 

authority to modify terms and 

conditions when it recognizes an 

assignment. This provision would 

provide incentives for potential right-ofway holders to develop lands inside 

designated leasing areas. 

New paragraph 2807.21(g) would 

provide that the BLM would process 

assignment applications according to 

the same time and conditions as in 

existing paragraph 2804.25(c). This 

provision would apply the BLM’s 

existing customer service standard to 

processing assignment applications. 

New paragraph 2807.21(h) would 

clarify that only interests in right-of-way 

grants or leases are assignable. Pending 

right-of-way applications do not create a 

property right and thus may not be 

assigned. 

New paragraph (i) would address how 

a holder would inform the BLM of a 

name change when the name change is 

not the result of an underlying change 

in control of a grant. These procedures 

are necessary to ensure that the BLM 

will be able to send rent bills or other 


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correspondence to the appropriate 

party. This new provision would 

address several specific circumstances. 

For example, it would require any 

corporation requesting a name change to 

supply: (1) A copy of the corporate 

resolution(s) proposing and approving 

the name change; (2) A copy of the 

acceptance of the change in name by the 

State or Territory in which 

incorporated; and (3) A copy of the 

appropriate resolution(s), order(s), or 

other documentation showing the name 

change. Under this provision, the BLM 

could also modify a grant, or add 

bonding and other requirements, 

including additional terms and 

conditions when recognizing such 

changes. However, the only way that the 

BLM may modify a lease issued under 

subpart 2809 would be in accordance 

with paragraph 2805.15(e). Such 

modifications would be a result of 

changes in legislation, regulation, or to 

protect public health, safety, or the 

environment. Any such name change 

would be recognized in writing by the 

BLM. 

The title for section 2807.22 would be 

revised to read ‘‘How do I renew my 

grant or lease?’’ This title would be 

changed so that the leases issued in 

subpart 2809 would be covered by this 

section. Paragraphs (a), (b), and (d) of 

this section would also be revised to 

include leases. Paragraphs (c) and (e) 

remain unchanged. 

Under new paragraph (f), if a holder 

makes timely and sufficient application 

for renewal, the existing grant or lease 

does not expire until the BLM acts upon 

the application for renewal. This 

provision would protect the interests of 

existing holders of rights-of-way who 

have timely and sufficiently made an 

application for the continued use of an 

existing authorization (see 5 U.S.C. 

558(c)(1)), and is consistent with 

existing policy. In this situation, the 

authorized activity does not expire until 

the BLM evaluates the application and 

issues a decision. 

Existing subpart 2809, which consists 

of a single regulation (section 2890.10) 

pertaining to Federal agency right-ofway grants, would be revised and 

redesignated as new paragraph (d) of 

section 2807.17. Existing paragraph 

2809.10(b) explains that Federal 

agencies are generally not required to 

pay rent for a grant. This paragraph 

would be removed instead of 

redesignated, since existing paragraph 

2806.14(a)(2) already addresses rental 

exemptions for Federal agencies and it 

would no longer be necessary. New 

subpart 2809 would be dedicated to the 

competitive process for leasing public 

lands for solar and wind energy 

development. 

Under new section 2809.10, only 

lands inside designated leasing areas 

would be available for solar and wind 

competitive leasing using the 

procedures under this subpart. Lands 

outside of designated leasing areas may 

be offered competitively using the 

procedures under section 2804.35 of 

this proposed rule. Under new section 

2809.10, the BLM may include lands in 

a competitive offer on its own initiative 

or solicit nominations through a call for 

nominations (see proposed paragraph 

2809.11(b)). You would be required to 

demonstrate that you are qualified to 

hold a right-of-way grant by meeting the 

qualifications under section 2803.10. 

Note, the term ‘‘grant’’ is used when 

referencing section 2803.10 above and 

in paragraph 2809.11(c). This is because 

throughout this part, including section 

2803.10, the term grant includes all 

right-of-way authorizations, including 

leases. 

New section 2809.11, ‘‘How will BLM 

solicit nominations?’’ would explain the 

process by which the BLM would 

request nominations for parcels of lands 

inside designated leasing areas to be 

offered competitively for solar or wind 

energy development. 

Under paragraph 2809.11(a), ‘‘Call for 

nominations,’’ the BLM would solicit 

expressions of interest and nominations 

for parcels of land located in a 

designated leasing area(s). The BLM 

would publish a notice in a newspaper 

of general circulation in the area 

affected by the potential offer of public 

land for solar and wind energy 

development, use other notification 

methods, including the Internet, and 

publish a notice in the Federal Register. 

Paragraph 2809.11(b)(1) would 

require a payment of $5 per acre for the 

parcel(s) nominated. This payment is 

nonrefundable, except when paragraph 

2809.11(d) is applicable. The average 

area of solar and wind grant or lease 

ranges between 4,000 and 6,000 acres. 

The $5 per-acre fee is derived from an 

appraisal consultation report prepared 

by the Department’s Office of Valuation 

Services and would be adjusted for 

inflation once every 10 years, using the 

IPD–GDP. The appraisal consultation 

report provided a range of $10—$27 per 

acre per year with the nominal range 

being $15—$17 per acre as the fair 

market value for these uses of the public 

lands. The BLM is establishing the 

nomination fee below the indicated 

range in the analysis since the 

submission of a nomination does not 

ensure that the nominator would be the 

successful bidder. 

The average change in the IPD–GDP 

from 1994 to 2003 is 1.9 percent, which 

would be applied through 2015. The fee 

would be required only at nomination 

and not on a yearly basis and this is 

noted under paragraph 2804.12(a)(8). 

The nomination fee is low to increase 

interest in the leasing area and 

encourage nominators to propose 

efficient use of the public lands. 

Payment of fair market value would be 

received through a combination of the 

bids (not including Federal 

administrative costs) received during a 

competitive process and the rents and 

MW capacity fees described in sections 

2806.50 through 2806.68 of this 

proposed rule. 

The submission of a nomination fee 

may result in a variable offset for an 

entity if it is determined to be the 

successful bidder in accordance with 

section 2809.15. An expression of 

interest is an informal submission to the 

BLM, suggesting that a parcel inside a 

competitive leasing area be considered 

for a competitive offer (see paragraph 

2809.11(c)). An expression of interest 

only provides a tentative bidder’s 

interest in a parcel(s) of land located 

inside a designated leasing area. If the 

expression of interest identifies a 

specific parcel, it must be submitted in 

writing, include the legal land 

description of the parcel, and a rationale 

for its inclusion in a competitive offer. 

There is no fee required to make an 

expression of interest, but submission 

would not qualify a potential bidder for 

a variable offset, as would formal 

nominations. 

Under paragraph 2809.11(d), a 

nomination would not be able to be 

withdrawn, except by the BLM for 

cause, in which case all nomination 

monies would be refunded. This clause 

parallels language in the BLM’s other 

competitive process regulations and 

encourages more serious nominations 

for parcels of public land. 

New section 2809.12, ‘‘How will BLM 

select and prepare parcels?,’’ would 

provide that the BLM would identify 

parcels suitable for leasing based on 

nominations and expressions of interest, 

on its own initiative, or both. Before 

offering the selected lands 

competitively, the BLM and other 

appropriate entities would conduct 

necessary studies, comply with NEPA 

and other appropriate laws, and 

complete other necessary site 

preparation work. This work is 

necessary to ensure that the parcels are 

ready for competitive leasing, to provide 

appropriate terms and conditions for 

any issued lease, to appropriately 

protect valuable resources, and to be 


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consistent with the BLM’s plans for the 

area. 

Under new section 2809.13, ‘‘How 

will BLM conduct competitive offers?,’’ 

the BLM may use any type of 

competitive process or procedure to 

conduct its competitive offer. Several 

options, such as oral auctions, sealed 

bidding, combination, oral/sealed 

bidding, and others are identified in 

paragraph 2809.13(a). Oral auctions are 

planned events where bidders are asked 

to vocally bid for a lease at a 

predetermined time and location. 

Sealed bidding would occur when 

bidders are asked to submit bids in 

writing by a certain date and time. 

Combination bidding would be when 

sealed bids are first opened and then an 

oral auction would occur, with oral bids 

having to exceed the highest sealed bid. 

Under paragraph (b) of this section, 

the BLM would publish a notice of the 

competitive offer in a newspaper of 

general circulation in the area affected 

by the potential right-of-way at least 30 

days before bidding takes place. A 

similar notification would be published 

in the Federal Register and through 

other notification methods, including 

the Internet. If you nominated lands and 

paid the nomination fees required by 

paragraph 2809.11(b)(1), the BLM would 

notify you of its decision to conduct a 

competitive offer at least 30 days in 

advance of the bidding. 

A notice of competitive offer would 

include: 

1. The date, time, and location (if any) 

of the competitive offer; 

2. The legal land description of the 

parcel(s) to be offered. This would also 

include the total acreage of the parcel(s); 

3. The bidding methodology and 

procedures that would be used in 

conducting the competitive offer, 

including any of the applicable 

competitive procedures identified in 

paragraph 2809.13(a); 

4. The required minimum bid (see 

paragraph 2809.14(a)); 

5. The qualification requirements for 

potential bidders (see section 2809.10); 

6. If applicable, the variable offset (see 

section 2809.16), including: 

a. The percent of each offset; 

b. How bidders may pre-qualify for 

each offset; and 

c. The documentation required to prequalify for each offset; and 

7. The terms and conditions to be 

contained in the lease, including 

requirements for the successful bidder 

to submit a plan of development for the 

lands involved in the competitive offer 

(see section 2809.18) and the lease 

mitigation requirements. 

New section 2809.14, ‘‘What types of 

bids are acceptable?,’’ would provide 

that your bid submission would be 

accepted by the BLM only if it included 

the minimum bid established in the 

competitive offer plus at least 20 

percent of your bonus bid and you are 

able to show to the BLM’s satisfaction 

that you are qualified to hold a right-ofway by meeting the requirements in 

section 2803.10. 

Paragraph (b) of this section would 

provide that a minimum bid would 

consist of three components. The first 

component would be for reimbursement 

of administrative costs incurred by the 

BLM and other Federal agencies in 

preparing and conducting the 

competitive offer. Administrative costs 

would include all costs required for the 

agency to comply with NEPA plus any 

other associated costs, including costs 

identified by other Federal agencies. As 

mentioned in the general discussion 

section of this preamble, administrative 

costs are not a component of fair market 

value and would be used to reimburse 

the Federal Government for its work in 

processing the sale and performing 

other necessary work. 

The second component of the 

minimum bid would be an amount 

determined by the authorized officer 

specifically for each competitive offer. 

The BLM would consider known values 

of the parcel when determining this 

amount, which include, but are not 

limited to, the acreage rent, megawatt 

capacity fee and the costs of habitat 

mitigation. For example, the BLM may 

have identified values for the mitigation 

of the habitat of the desert tortoise in 

management plans, or other such 

documents. The authorized officer 

would identify these factors and explain 

how they were used to determine this 

amount. The third component would be 

a bonus bid submitted by the bidder as 

part of a bid package. This amount 

would be determined by the bidder. 

In other programs, the minimum bid 

is often a statutory requirement or is 

based on fair market value of the 

resource, but there are no statutory 

requirements for the minimum bid 

proposed here. The acreage rent is based 

on the value of the land, and the MW 

capacity fee is based on the value of the 

industrial use of the land. Some other 

factors that may be considered are 

habitat mitigation and archaeological 

clearances or recovery of artifacts. The 

BLM proposes to base this minimum bid 

on factors such as these that are known 

values or limitations of the parcel. The 

minimum bid amount, how it was 

determined, and the factors used in this 

determination would be clearly 

articulated in the notice of competitive 

offer for each parcel. 

This amount is not a determination of 

fair market value, but a point at which 

bidding may start. Fair market value 

would be received through a 

combination of the rents, MW capacity 

fees and the competitive bidding, as the 

process would determine what the 

market is willing and able to pay for the 

parcel. Payment of cost recovery fees 

would be required, but are not 

considered to be a part of the minimum 

bid. The minimum bid would be paid 

only by the successful bidder and would 

not be prorated among all of the bidders. 

As described in paragraph (c) of this 

section, a bonus bid would consist of 

any dollar amount that a bidder wishes 

to bid, beyond the minimum bid. The 

total bid equals the minimum bid plus 

any additional bonus bid amount 

offered. If you are not the successful 

bidder as defined in paragraph 

2809.15(a), your bid would be refunded. 

Section 2809.15, ‘‘How will BLM 

select the successful bidder?,’’ would 

explain how the successful bidder is 

determined and what requirements they 

must meet in order to be offered a lease. 

A bidder with the highest total bid, 

prior to any variable offset, would be 

declared the successful bidder and 

would be offered a lease in accordance 

with section 2805.10. The BLM would 

determine the appropriate variable 

offset, using the criteria provided in 

section 2809.16, before issuing final 

payment terms. If you are the successful 

bidder, your payment must be 

submitted to the BLM by the close of 

official business hours on the day of the 

offer or at such other time as the BLM 

may have specified in the offer notice. 

Your payment would be required to be 

made by personal check, cashier’s 

check, certified check, bank draft, or 

money order, or by any other means 

deemed acceptable by the BLM. Your 

remittance must be payable to the 

‘‘Department of the Interior—Bureau of 

Land Management.’’ Your payment 

must include: at least 20 percent of the 

bonus bid prior to the offset described 

in section 2809.16 and the total amount 

of the minimum bid specified in 

paragraph 2809.14(b). Within 15 

calendar days after the day of the offer, 

you must submit to the BLM the balance 

of the bonus bid less the variable offset 

(see proposed section 2809.16) and the 

acreage rent for the first full year of the 

solar or wind energy lease as provided 

for in paragraphs 2806.54(a) or 

2806.64(a), respectively, to the BLM 

office conducting the offer or as 

otherwise directed by the BLM in the 

offer notice. 

Under paragraph 2809.15(e), the BLM 

would not offer the successful bidder a 

lease and would keep all money 


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submitted, if the requirements of 

paragraph 2809.15(d) are not met. In 

this circumstance, the BLM may offer 

the lease to the next highest bidder 

under paragraph 2809.17(b) or re-offer 

the lands under paragraph 2809.17(d). 

New section 2809.16, ‘‘When do 

variable offsets apply?,’’ would provide 

that a successful bidder may be eligible 

for an offset of up to 20 percent of the 

bonus bid, based on the factors 

identified in the notice of competitive 

offer. In providing for these offsets, the 

BLM intends to promote thoughtful and 

reasonable development based upon 

known environmental factors and 

impacts of different technologies. The 

BLM believes providing these offsets 

could increase the likelihood that a 

project is developed, expedite the 

development of that project, or 

minimize resource impacts on the 

affected right-of-way. The BLM believes 

these offsets would help encourage the 

production of clean renewable energy 

on public lands, which is a benefit to 

the general public. 

The notice of competitive offer would 

identify each factor of the variable offset 

and the specific percentage for each 

factor that would be applied to the 

bonus bid, up to a maximum of 20 

percent. The BLM would also list the 

documentation required to be submitted 

to qualify for the offset prior to the day 

of the offer and determine the amount 

of the offset prior to the competitive 

offer. The authorized officer would 

determine these offsets for each 

competitive offer based on the parcel(s) 

to be offered. In setting the offsets, the 

BLM would consider the parcel and its 

environmental concerns or 

technological limitations. 

For example, the BLM may offer a 5 

percent offset to a bidder that has a PPA. 

This offset could encourage a bidder to 

secure an agreement before the offer, 

which could increase the likelihood of 

a project being developed and expedite 

the completion of such development. 

In the BLM’s experience with solar 

and wind energy developments, a 

project is not always developed after a 

right-of-way is issued. Based on this 

experience, the BLM believes that a 

bidder with an agreement in place to 

sell power would be more likely to 

develop a project on the right-of-way. 

This could prevent the unnecessary 

encumbrance of a right-of-way that is 

issued to a holder that never develops 

the intended project. 

The BLM may also offer an offset for 

thoughtful and reasonable development. 

For example, the BLM may offer a 5 

percent offset to a bidder that would use 

a particular technology. The BLM may 

identify a preferred technology type to 

reduce impacts to identified 

environmental or cultural resources. 

The BLM anticipates selected offsets 

to be in increments of 5 percent to be 

reviewed at the BLM Washington Office 

for consistency and relevance prior to 

each competitive offer made in the first 

several years after publication of the 

final rule. 

The BLM may offer a different 

percentage for each offset based on how 

qualified the bidder is for the offset. For 

example, the BLM may offer a 3 percent 

offset for an interim step in the PPA 

process or a 5 percent offset for a signed 

PPA. The BLM acknowledges that in 

some circumstances qualifying for these 

offsets may be difficult. For this reason, 

the BLM may offer incremental offsets 

to bidders who are working towards 

such qualifications. These offsets would 

be identified in the notice of 

competitive offer (see paragraph 

2809.13(b)(6)). 

The variable offset may include, but is 

not limited to, the following factors: 

1. Power purchase agreement. This 

could be a signed agreement between 

the potential lessee and an entity that 

agrees to purchase the power generated 

from the solar or wind energy facility; 

2. Large generator interconnect 

agreement. This would consist of a 

signed agreement from the holder of an 

electrical transmission facility and the 

potential lessee that power would be 

accepted on the grid controlled by the 

holder to be transported to a power 

receiving source; 

3. Preferred solar or wind energy 

technologies. This would be an 

incentive to use technologies for 

generating or storing solar or wind 

energy that would efficiently use public 

lands or reduce impacts to identified 

resources; 

4. Prior site testing and monitoring 

inside the designated leasing area. This 

would consist of evidence that the 

potential lessee or others associated 

with the lessee had previously 

performed appropriate testing or 

monitoring to determine the suitability 

and capability of the site for 

establishment of a successful solar or 

wind energy generating facility; 

5. Pending applications inside the 

designated leasing area. This would be 

a situation where the potential lessee 

had previously filed for authorization to 

construct facilities inside the designated 

leasing area; 

6. Submission of nomination fees. 

These are required when submitting a 

formal nomination (see section 

2809.11); 

7. Timeliness of project development, 

financing, and economic factors. This 

would include documentation that 

financing has been arranged for the 

project and provides an incentive to 

promote an expedited development 

timeframe for a project; 

8. Environmental benefits. This factor 

would include any positive 

environmental considerations such as 

identifying and salvaging archaeological 

or historical artifacts, additional 

protection for protected plant or animal 

species or similar factors; 

9. Holding a solar or wind energy 

lease on adjacent or mixed land 

ownership. This could show the 

bidder’s vested interest in developing 

the right-of-way; 

10. Public benefits. These could 

include documented commitments or 

agreements to provide jobs or other 

support for local communities, or 

supporting local public purposes 

projects; or 

11. Other similar factors. This could 

include support for other Federal 

Government programs or national 

security by providing power for defense 

purposes or meeting government 

purchase contracts. 

New section 2809.17, ‘‘Will BLM ever 

reject bids or re-conduct a competitive 

offer?’’ would identify situations where 

the BLM may reject a bid, offer a lease 

to another bidder, re-offer a parcel, or 

actions the BLM may take when no bids 

are received. Under paragraph 

2809.17(a), the BLM could reject bids 

regardless of the amount offered. Bid 

rejection could be for various reasons, 

such as discovery of resource values 

that cannot be mitigated through 

stipulations (e.g., the only known site of 

a rare or endangered plant, or for 

security purposes). If this occurs you 

would be notified and the notice would 

explain the reason(s) for the rejection 

and whether you are entitled to any 

refunds. If the BLM rejects a bid, the 

bidder may appeal that decision under 

§ 2801.10. 

The BLM has the option to offer the 

lease to the next highest qualified 

bidder if the first successful bidder is 

later disqualified or does not sign and 

accept the offered lease (paragraph 

2809.17(b)). 

Under paragraph 2809.17(c), the BLM 

could re-offer a parcel if it cannot 

determine a successful bidder, such as 

in the case of a tie, or when a successful 

bidder is later determined to be 

unqualified to hold a lease. 

Under proposed paragraph 

2809.17(d), if public lands offered under 

the provisions at section 2809.13 receive 

no bids, the BLM could reoffer the 

parcels through the competitive process 

under section 2809.13 or make the lands 

available through the non-competitive 

process found in subparts 2803, 2804, 


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and 2805. If the lands are then offered 

on a noncompetitive basis, the 

successful applicant would receive a 

right-of-way grant, rather than a lease, 

and the offsets described in section 

2809.16 would not apply. 

Section 2809.18 would list the terms 

and conditions of solar and wind energy 

leases issued inside designated leasing 

areas. 

Under paragraph (a) of this section, 

the term of a lease inside designated 

leasing areas would be 30 years and the 

lessee may apply for renewal under 

section 2805.14. While leases outside of 

designated leasing areas would be for a 

term up to 30 years, leases inside 

designated leasing areas would be 

guaranteed a lease term of 30 years. 

Under paragraph (b) of this section, a 

lessee must pay rent as specified in 

section 2806.54 if the lease is for solar 

energy development or section 2806.64 

if the lease is for wind energy 

development. The BLM’s authority to 

collect market value rent is derived from 

Section 304(a) of FLPMA (43 U.S.C. 

1734). Rent is discussed in greater detail 

in the rental parts of the section-bysection analysis. 

Under paragraph (c) of this section, a 

lessee must submit, within 2 years of 

the lease issuance date, a POD that: (1) 

Is consistent with the development 

schedule and other requirements in the 

POD template posted on the BLM’s Web 

site (http://www.blm.gov/wo/st/en/prog/ 

energy/renewable_energy.html); and (2) 

Addresses all pre-development and 

development activities. A POD is often 

required for rights-of-way under existing 

paragraph 2804.25(b). Due to their 

complexity, solar and wind energy 

development projects would always 

require submittal of a POD. The 

submitted POD would provide sitespecific information that would be 

reviewed by the BLM and other Federal 

agencies in accordance with NEPA and 

other relevant laws. 

Under paragraph (d) of this section, 

cost recovery, a lessee must pay the 

reasonable costs for the BLM or other 

Federal agencies to review and process 

the POD and to monitor the lease. The 

authority for collecting costs is derived 

from Section 304(b) of FLPMA (43 

U.S.C. 1734) that provides for the 

deposit of payments to reimburse the 

BLM for reasonable costs with respect to 

applications and other documents 

relating to the public lands. Such costs 

may be determined based upon 

consideration of actual costs. A lessee 

may choose to pay full actual costs for 

the review of the POD and the 

monitoring activities of the lease. 

Through the BLM’s experience, a lessee 

is more likely to choose payment of full 

actual costs as this expedites the BLM’s 

review and monitoring actions by 

removing administrative steps in cost 

estimations and verifying estimated 

account balances. 

Under paragraph (e) of this section, a 

lessee would have to provide a 

performance and reclamation bond for a 

solar or wind energy project. Bond 

amounts inside designated leasing areas 

would be set at a standard dollar 

amount (per acre for solar, or per 

turbine for wind) for either solar or 

wind energy development. See section 

2805.20 of this preamble for additional 

information on the determination of 

these bond amounts. As explained in 

the general discussion section of this 

preamble, the BLM does not intend to 

change the amount of a standard bond 

after the lease is issued unless there is 

a change in use. 

For a solar energy development 

project, a lessee would be required to 

provide a bond in the amount of 

$10,000 per acre at the time the BLM 

approves the POD. See the discussion at 

paragraph 2805.20(b) for additional 

information. For a wind energy 

development project, a lessee would be 

required to provide a bond in the 

amount of $20,000 per authorized 

turbine at the time the BLM approves 

the POD. See the discussion at 

paragraph 2805.20(c) for additional 

information. 

The BLM would adjust the solar or 

wind energy development bond 

amounts for inflation every 10 years by 

the average annual change in the IPD– 

GDP for the preceding 10-year period 

and round it to the nearest $100. This 

10 year average would be adjusted at the 

same time as the Per Acre Rent 

Schedule for linear rights-of-way under 

section 2806.22. 

Under paragraph (f) of this section, a 

lessee may assign a lease under section 

2807.21, and if an assignment is 

approved, the BLM would not make any 

changes to the lease terms or conditions, 

as provided in paragraph 2807.21(f). 

Under paragraph (g) of this section, a 

lessee must start construction of a 

project within 5 years and begin 

generating electricity no later than 7 

years from the date of lease issuance, as 

specified in the approved POD. The 

approved POD would outline the 

specific development requirements for 

the project, but all PODs would require 

a lessee to start generating electricity 

within 7 years. The 5 years to start 

construction and 7 years to begin 

generating electricity proposed in the 

rule should allow most lessees time to 

construct and start generation of 

electricity and give a leaseholder time to 

address any concerns that are outside of 

the BLM’s authority. Such concerns 

include PPAs or private land permitting 

or site control transactions. A request 

for an extension may be granted for up 

to 3 years with a show of good cause 

and approval by the BLM. Should a 

leaseholder be unable to meet this due 

diligence timeframe, the BLM may 

terminate the lease. 

New section 2809.19 would explain 

how the BLM would process 

applications in designated leasing areas 

or on lands that later become designated 

leasing areas. Under the proposed rule, 

lands inside designated leasing areas 

would be offered through the 

competitive bidding process described 

in this subpart and applications may not 

be filed inside these areas after the lands 

have been designated as such. 

Paragraph (a) of this section would 

explain how the BLM would process 

applications filed for solar or wind 

energy development on lands outside of 

designated leasing areas that 

subsequently become designated leasing 

areas. If the application was filed before 

the BLM published the notice of 

availability of the draft or proposed land 

use plan amendment to designate the 

solar or wind leasing area, the 

application would continue to be 

processed by the BLM and it would not 

be subject to the competitive leasing 

offer process in this subpart. The notice 

of availability is the first official public 

notice of the BLM’s intent to designate 

these lands. After publication of this 

notice, the public will have been 

notified of the BLM’s intent to create a 

designated leasing area. If an 

application is submitted prior to 

publication of the notice of availability, 

the applicant would have had no way of 

knowing the BLM’s intent and therefore 

the BLM would continue to process the 

application. 

If an application is filed after the 

notice of availability of the draft land 

use plan amendment to identify the 

land as a designated leasing area, the 

application would remain in a pending 

status, unless it is either withdrawn by 

the applicant or the BLM denies it. 

When the subject lands do become 

available for leasing under this subpart, 

the applicant could submit a bid for the 

lands under this subpart. Any entity 

with an application pending on a parcel 

that submits a bid on such parcel may 

qualify for a variable offset as provided 

for under section 2809.16. The applicant 

would not receive a refund for any 

application fees or processing costs 

incurred if the lands described in the 

application are later leased to another 

entity under section 2809.12. The 

rationale for these provisions is to 


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ensure that as many parcels as possible 

are leased and developed appropriately. 

Under proposed paragraph (b), the 

BLM would not accept a new 

application for solar or wind energy 

development inside designated leasing 

areas after the effective date of this rule 

(see paragraph 2804.10(c)(2)). 

Under paragraph (c) of this section, 

the BLM would be able to authorize 

short term (3-year) grants for testing and 

monitoring purposes inside designated 

leasing areas. These would be processed 

in accordance with paragraphs 

2805.11(b)(2)(i) or 2805.11(b)(2)(ii). 

These testing grants may qualify an 

entity for a variable offset under 

paragraph 2809.16(b)(4). 

Section-by-Section Analysis for Part 

2880 

The BLM is proposing revisions to 

several subparts of part 2880. These 

revisions are necessary to ensure 

consistency of policies, processes, and 

procedures, where possible, between 

rights-of-way applied for and 

administered under part 2800 and those 

applied for and those rights-of-way 

administered under part 2880. Specific 

areas where we are proposing 

consistency changes include: Bonding 

requirements; determination of initial 

rental payment periods; and when you 

must contact the BLM, including grant, 

lease, and temporary use permit (TUP) 

modification requests, assignments, and 

renewal requests. In addition, the BLM 

is proposing pre-application 

requirements and fees for any 

transmission line with a capacity of 100 

kV or more, or any pipeline 10 inches 

or more in diameter (see section 

2884.10), similar to those being 

proposed for all solar energy and wind 

energy projects. Authorizations for solar 

or wind energy, for any transmission 

line with a capacity of 100 kV or more, 

or any pipeline 10 inches or more in 

diameter, are all generally large-scale 

operations that require additional steps 

to help protect the public land. 

The heading for subpart 2884 would 

be revised to read ‘‘Applying for MLA 

Grants and TUPs.’’ This change would 

more accurately represent the contents 

of the subpart. 

Section 2884.10 would be revised to 

parallel the changes being made to 

section 2804.10. These changes include 

pre-application requirements for 

applicants for any transmission line 

with a capacity of 100 kV or more, or 

any pipeline 10 inches or more in 

diameter. Some changes are the 

additional pre-application meetings, 

payment of reasonable costs, and a list 

of the reasons why the BLM would not 

accept such applications. For a detailed 

discussion of these changes, see section 

2804.10 of this preamble. 

Section 2884.11 would require a POD 

if an application is for an oil or gas 

pipeline that is 10 inches or more in 

diameter. As previously discussed, 

PODs are often required under section 

2804.25. A POD would be required in 

this paragraph due to the potentially 

large on-the-ground impacts of these 

pipelines. 

Section 2884.12 would explain fees 

associated with an application, 

including those that involve Federal 

agencies other than the BLM. The 

applicant may pay either the BLM for 

work done by those Federal agencies or 

pay those Federal agencies directly for 

their work. This authority was recently 

delegated by Secretarial Order 3327 and 

would be reflected in the final 

regulations. 

Paragraph (b) of this section would 

revise the processing fee schedule to 

remove the 2005 category fees. 

Amended paragraph (c) would provide 

instructions on where you may obtain a 

copy of the current processing fee 

schedule. These changes parallel those 

made to section 2804.14, which describe 

processing fees for grant applications. A 

further analysis of these changes can be 

found in that part of the section-bysection analysis. 

Section 2884.16 would be revised to 

require that Master Agreements describe 

existing agreements with other Federal 

agencies for cost reimbursement 

associated with the application. This 

change parallels changes in proposed 

section 2804.18, which describes Master 

Agreements for all other rights-of-way. 

With the authority recently delegated by 

Order 3327 to collect costs for other 

Federal agencies, it is important for the 

applicant, the BLM, and other Federal 

agencies to coordinate and be consistent 

regarding cost reimbursement. 

Section 2884.17 would explain how 

the BLM processes Category 6 

applications and these changes would 

parallel changes in proposed section 

2804.19. Under paragraph (e) of this 

section, the BLM may collect 

reimbursement for the United States for 

actual costs with respect to applications 

and other document processing relating 

to Federal lands. The authority 

delegated by Secretarial Order 3327 

requires more coordination and 

promotes consistency between the 

Federal agencies. 

Section 2884.18 would parallel 

proposed section 2804.23. Under 

paragraph (a)(1) of this section, the 

requirement to reimburse the BLM 

would be expanded to allow for cost 

reimbursement from all Federal 

agencies for the processing of these 

right-of-way authorizations. 

Under paragraph (c) of this section, 

the BLM may offer lands through a 

competitive process on its own 

initiative. 

Under section 2884.20, the phrase ‘‘or 

use other notification methods 

including the Internet’’ would be added 

to paragraphs (a) and (d) to provide for 

an additional avenue to notify the 

public of a pending application or to 

announce any public hearings or 

meetings. This language would be 

consistent with changes made to other 

notification language throughout this 

proposed rule. 

Under section 2884.21, the BLM 

would not process your application if 

you have any trespass action pending 

for any activity on BLM administered 

lands (see section 2888.11) or have any 

unpaid debts owed to the Federal 

Government. The only application the 

BLM would process to resolve the 

trespass would be for a right-of-way as 

authorized in this part, or a lease or 

permit under the regulations found at 43 

CFR part 2920, but only after 

outstanding debts are paid. This 

provision is being added to provide 

incentives for the applicant to resolve 

outstanding debts or other infractions 

involving the Federal Government and 

parallels proposed section 2804.25. 

The notification language in 

paragraph (d)(4) would be amended by 

adding the phrase ‘‘or use other 

notification methods including the 

Internet.’’ This language would be 

consistent with changes made to other 

notification language throughout this 

rule. 

Section 2884.23 would describe the 

circumstances under which the BLM 

may deny an application. Under new 

paragraph 2884.23(a)(6), the BLM may 

deny an application if the required POD 

fails to meet the development schedule 

and other requirements for oil and gas 

pipelines. This language is necessary to 

enforce the requirements of new 

paragraphs 2884.10(d)(3) and 

2884.11(c)(5). 

Section 2884.24 would parallel 

changes made to section 2804.27 and 

would require an applicant to pay any 

pre-application costs submitted under 

paragraph 2884.10(b)(4). See section 

2804.27 for further discussion. 

Section 2885.11 explains the terms 

and conditions of a grant. Paragraph (a) 

of this section would be revised by 

adding the phrase ‘‘with the initial year 

of the grant considered to be the first 

year of the term.’’ This revision would 

clarify, for example, that a 30-year grant 

issued on September 1, 2013, would 

expire on December 31, 2042, and have 


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an effective term of 29 years and 4 

months. This is consistent with existing 

policy and procedure. For all grants 

issued under this section with terms 

greater than 3 years, the actual term 

would include the number of full years 

including any partial year. The term for 

a MLA grant differs from a term for 

rights-of-way authorized under FLPMA, 

as FLPMA rights-of-way may be issued 

for periods greater than 30 years, while 

a MLA right-of-way may be issued for a 

maximum period of 30 years. If a 30 

year FLPMA grant is issued on a date 

other than the first of a calendar year, 

that partial year would count as 

additional time of the grant (see 

discussion of paragraph 2805.11 earlier 

in this preamble section). 

A new sentence would be added to 

the end of paragraph 2885.11(b)(7) 

referencing new section 2805.20. 

Proposed section 2805.20 would explain 

the bonding requirements for all rightsof-way. This reference would direct 

readers to the bonding requirements. 

Revisions to section 2885.15 would 

clarify that there are no reductions of 

rents for grants or TUPs, except as 

provided under paragraph 2885.20(b). 

Paragraph 2885.20(b) is an existing 

provision under which a grant holder 

can qualify for phased-in rent. This 

change is only a clarification and crossreference to existing regulations. 

Revisions to section 2885.16 would 

clarify that the BLM prorates the initial 

rental amount based on the number of 

full months left in the calendar year 

after the effective date of the grant or 

TUP. If your grant qualifies for annual 

payments, the initial rent bill consists of 

the remaining partial year plus the next 

full year. For example, the initial rental 

bill for a grant issued on September 1 

would be for 1 year and 3 months if the 

grant qualifies for annual billing. The 

initial rental bill for the same grant 

would be for 9 years and 3 months if the 

grant does not qualify for annual billing. 

This is a new provision that would 

parallel paragraph 2806.24(c) and would 

create consistency in how all rights-ofway are prorated. 

Section 2885.17(e) would parallel 

proposed section 2806.13(e), which 

identifies when the BLM would 

retroactively bill for uncollected or 

under-collected rent, late payments and 

administrative fees. The BLM would 

collect rent if: (1) A clerical error is 

identified; (2) A rental schedule 

adjustment is not applied; or (3) An 

omission or error in complying with the 

terms and conditions of the authorized 

right-of-way is identified. 

Section 2885.19 would be revised by 

updating the addresses in paragraph (b). 

Revisions to section 2885.20 would 

result in the removal of existing 

paragraph (b)(1), which provided for a 

25 percent reduction in rent for calendar 

year 2009. This paragraph no longer 

applies since it specifically mentioned 

the 2009 Per Acre Rent Schedule. 

The proposed changes in section 

2885.24 would parallel the proposed 

changes to other sections of this rule 

that contain tables with outdated 

numbers. Specific numbers would be 

removed from the table. However, the 

monitoring fee amounts would be 

available to the public in BLM offices or 

on the BLM Web site. The proposed rule 

would add the methodology for 

adjusting these fees on an annual basis 

to paragraph (a) of this section. Since 

this methodology has been added to 

paragraph (a), a description of how the 

BLM updates the schedule would be 

removed from paragraph (b) of this 

section. 

Section 2886.12 describes when a 

grant holder must contact the BLM 

during operations. The changes in this 

section would parallel the proposed 

changes to section 2807.11. A grant 

holder would be required to contact the 

BLM when site specific circumstances 

require changes to an approved right-ofway grant, POD, site plan, or other 

procedures even when they are not 

substantial deviations in location or use. 

These types of changes would be 

considered as grant or TUP modification 

requests. New paragraph (e) would be 

added to conform to similar provisions 

at paragraph 2807.11(e), which would 

require you to contact the BLM if your 

authorization requires submission of a 

certification of construction. See section 

2807.11 for further discussion on these 

topics. 

Revisions to section 2887.11 would 

parallel the changes to section 2807.21, 

which describes assigning or making 

other changes to a grant or lease. The 

title for section 2887.11 would be 

changed to ‘‘May I assign or make other 

changes to my grant or TUP?’’ 

The existing regulations do not cover 

all instances where an assignment is 

necessary and also omit situations 

where assignments are not required. The 

proposed changes are necessary to: (1) 

Add and describe additional changes to 

a grant other than assignments; (2) 

Clarify what changes would require an 

assignment; and (3) Make right-of-way 

leases subject to the regulations in this 

paragraph. 

Some of the proposed changes would 

add to paragraph (a) two events that 

may require the filing of an assignment: 

(1) The voluntary transfer by the holder 

of any right or interest in the right-ofway grant to a third party, e.g., a change 

in ownership; and (2) Change in control 

transactions involving the right-of-way 

grantee. Examples of changes in 

ownership would be: A transfer by a 

holder (assignor) of any right or interest 

in the grant to a third party (assignee); 

or changes in ownership or other related 

change involving the BLM right-of-way 

grant, including a corporate merger or 

acquisition. Revised paragraph (b) 

would clarify that a change in the 

holder’s name only does not require an 

assignment. 

Revised paragraph (c) would make it 

clear that changes in a holder’s articles 

of incorporation do not require an 

assignment, but if a holder becomes a 

wholly owned subsidiary of a new third 

party and still holds the grant, it may 

need to file new or revised information 

in conformance with subpart 2803. 

Paragraph (d) pertains to payments for 

assignments and would add a 

requirement to pay application fees in 

addition to processing fees. Also, the 

BLM may now condition a grant 

assignment to require payment of 

outstanding payments due. 

New paragraph (h) would clarify that 

only interests in right-of-way grants or 

leases are assignable. Pending right-ofway applications do not create a 

property right and thus may not be 

assigned. 

New paragraph (i) would add special 

application requirements to be 

evaluated if there is a change in the 

legal name of the right-of-way 

leaseholder. These include: (1) 

Requiring any corporation requesting 

such a change to supply documentation 

showing the name change; and (2) 

Acceptance of the name change by the 

State or Territory in which 

incorporated. This section would also 

explain that the BLM may also modify 

a grant, or add bonding and other 

requirements, including additional 

terms and conditions when processing a 

name change application. 

Section 2887.12 would add new 

paragraph (d), similar to proposed 

revisions to section 2807.22, explaining 

that if a holder makes a timely and 

sufficient application for renewal, the 

existing grant or lease does not expire 

until the application for renewal has 

been finally determined by the BLM. 

This provision is derived from the 

Administrative Procedures Act (5 U.S.C. 

558(c)(1)) and it protects interests of 

existing right-of-way holders who have 

timely and sufficiently made an 

application for the continued use of an 

existing authorization. In this situation, 

the authorized activity does not expire 

until the application for continued use 

has been evaluated and a decision on 

the extension is made by the agency. 


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This would reiterate and clarify existing 

policy and procedures. 

Under proposed paragraph 2887.12(e), 

you may appeal the BLM’s decision to 

deny your application under existing 

section 2881.10. This paragraph would 

parallel the language under existing 

paragraph 2807.22(f), which would be 

redesignated as paragraph 2807.22(g). 

V. Procedural Matters 

Regulatory Planning and Review 

(Executive Orders 12866 and 13563) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs (OIRA) will review all significant 

rules. The Office of Information and 

Regulatory Affairs has determined that 

this proposed rule is significant because 

it could raise novel legal or policy 

issues. 

Executive Order 13563 reaffirms the 

principles of Executive Order 12866 

while calling for improvements in the 

nation’s regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible and consistent with regulatory 

objectives. Executive Order 13563 

emphasizes further that regulations 

must be based on the best available 

science and that the rulemaking process 

must allow for public participation and 

an open exchange of ideas. We have 

developed this proposed rule in a 

manner consistent with these 

requirements. 

This proposed rule includes 

provisions that are intended to facilitate 

responsible solar and wind energy 

development and to receive fair market 

value for such development. These 

provisions would: 

1. Promote the use of preferred areas 

for solar and wind energy development 

(i.e., designated leasing areas); and 

2. Establish competitive processes, 

terms, and conditions (including rental 

and bonding requirements) for solar and 

wind energy development rights-of-way 

both inside and outside of designated 

leasing areas. 

These provisions would assist the BLM 

in meeting goals established in Section 

211 of the Energy Policy Act (EPAct) of 

2005 and Secretarial Order 3285A1. 

They would also assist the BLM in 

implementing recommendations of the 

Department’s Office of the Inspector 

General regarding renewable energy 

development. 

In addition to provisions that would 

affect renewable energy specifically, this 

proposed rule also includes provisions 

that would affect all rights-of-way, and 

some that would affect transmission 

lines with a capacity of 100 kV or more, 

and pipelines 10 inches or more in 

diameter. These provisions would 

clarify existing regulations and codify 

existing policies. 

Economic Impacts 

The proposed rule would not have an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities. The BLM 

anticipates the proposed rule would 

increase total costs to all applicants, 

lessees, and operators by no more than 

$5.7 million per year. Of this increase in 

costs to operators, $4.8 million of this 

total figure is the amount of the 

estimated bonus bids. The increase in 

fees and rentals over the fees and rentals 

currently set by policy primarily reflect 

changing market conditions. Increases 

in the minimum bond amounts also 

reflect increases in estimated 

reclamation costs. These impacts are 

discussed in detail in the Economic and 

Threshold Analysis for the proposed 

rule. 

Other Agencies 

The proposed rule would not create a 

serious inconsistency or otherwise 

interfere with another agency’s actions 

or plans. The BLM is the only agency 

that may promulgate regulations for 

rights-of-way on public lands. 

Budgetary Impacts 

This proposed rule would not 

materially alter the budgetary effects of 

entitlements, grants, user fees, or loan 

programs or the rights or obligations of 

their recipients. 

Novel Legal or Policy Issues 

This proposed rule could raise novel 

legal or policy issues. It would codify 

existing BLM policies and provide 

additional detail about submitting 

applications for solar or wind energy 

development grants outside designated 

leasing areas, for transmission lines 

with a capacity of at least 100 kV, and 

for pipelines 10 inches in diameter or 

larger. In addition, the proposed rule 

would provide for a competitive process 

for seeking solar and wind energy 

development leases inside of designated 

leasing areas. 

Clarity of the Regulations 

Executive Order 12866 also requires 

each agency to write regulations that are 

simple and easy to understand. The 

BLM invites your comments on how to 

make this proposed rule easier to 

understand, including answers to 

questions such as the following: 

1. Are the requirements in the 

proposed rule clearly stated? 

2. Does the proposed rule contain 

technical language or jargon that 

interferes with its clarity? 

3. Does the format of the proposed 

rule (grouping and order of sections, use 

of headings, paragraphing, etc.) aid or 

reduce its clarity? 

4. Would the regulations be easier to 

understand if they were divided into 

more (but shorter) sections? 

5. Is the description of the proposed 

rule in the SUPPLEMENTARY INFORMATION

section of this preamble helpful in 

understanding the proposed rule? How 

could this description be more helpful 

in making the proposed rule easier to 

understand? 

Please send any comments you have 

on the clarity of the regulations to the 

address specified in the ADDRESSES

section. 

National Environmental Policy Act 

(NEPA) 

The proposed regulatory amendments 

are of an administrative or procedural 

nature and, therefore, are categorically 

excluded from the requirement to 

prepare an environmental assessment 

(EA) or EIS. See 43 CFR 46.205 and 

46.210(i). They do not present any of the 

extraordinary circumstances listed at 43 

CFR 46.215. 

Nonetheless, the BLM has drafted an 

EA to inform agency decision-makers 

and welcomes input from the public on 

the draft EA’s assessment of the effects 

of the proposed rule. The draft EA 

incorporates by reference the Final Solar 

Energy Development Programmatic 

Environmental Impact Statement (July 

2012) and the Final Programmatic 

Environmental Impact Statement on 

Wind Energy Development on BLMAdministered Lands in the Western 

United States (June 2005). To obtain 

single copies of the Programmatic EISs 

or the draft EA, you may contact the 

person listed under the section of this 

rule titled, FOR FURTHER INFORMATION

CONTACT. You may also view the EA/

FONSI and Programmatic 

Environmental Impact Statements at, 

respectively, http://windeis.anl.gov/, 

http://solareis.anl.gov/, and http://

www.blm.gov/wo/st/en/prog/energy/

renewable_energy.html. 


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Regulatory Flexibility Act 

Congress enacted the Regulatory 

Flexibility Act of 1980 (RFA), as 

amended, 5 U.S.C. 601–612, to ensure 

that Government regulations do not 

unnecessarily or disproportionately 

burden small entities. The RFA requires 

a regulatory flexibility analysis if a rule 

would have a significant economic 

impact, either detrimental or beneficial, 

on a substantial number of small 

entities. For the purposes of this 

analysis, the BLM assumes that all 

entities (all lessees and operators) that 

may be affected by this rule are small 

entities, even though that is not actually 

the case. 

This proposed rule would not have a 

significant economic effect on a 

substantial number of small entities 

under the RFA. 

The proposed rule would affect new 

applicants or bidders for authorizations 

of solar or wind energy development, 

transmission lines 100 kV or more, and 

pipelines 10 inches or more in diameter. 

The BLM reviewed current holders of 

such authorizations to determine 

whether they are small businesses as 

defined by the SBA. The BLM was 

unable to find financial reports or other 

information for all potentially affected 

entities, so this analysis assumes that 

the rule could potentially affect a 

substantial number of small entities. 

To determine the extent to which the 

proposed rule would impact these small 

entities, we took two approaches. First, 

we attempted to measure the direct 

costs of the proposed rule as a portion 

of the net incomes of affected small 

entities. However, we were unable to 

obtain the financial records for a 

representative sample. Next, we 

estimated the direct costs of the 

proposed rule as a portion of the total 

costs of a project. 

The analysis showed that a range of 

potential impacts on the total cost of a 

project varied from a savings of 0.04 

percent to a cost of 1.58 percent of the 

total project cost. The BLM determined 

that this was an insignificant impact in 

the context of developing a project and 

therefore not a significant economic 

impact on a substantial number of small 

businesses. For a more detailed 

discussion, please see the economic 

analysis. 

Small Business Regulatory Enforcement 

Fairness Act 

For the same reasons as discussed 

under the Executive Order 12866, 

Regulatory Planning and Review section 

of this preamble, this proposed rule is 

not a ‘‘major rule’’ as defined at 5 U.S.C. 

804(2). That is, it would not have an 

annual effect on the economy of $100 

million or more; it would not result in 

major cost or price increases for 

consumers, industries, government 

agencies, or regions; and it would not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. 

Unfunded Mandates Reform Act 

This proposed rule would not impose 

an unfunded mandate on State, local, or 

tribal governments, in the aggregate, or 

the private sector of $100 million or 

more per year; nor would it have a 

significant or unique effect on State, 

local, or tribal governments. The 

amendment of portions of the 

regulations found at 43 CFR parts 2800 

and 2880, redesignated the existing 43 

CFR part 2809 in its entirety to a new 

paragraph found at § 2801.6(a)(2) and 

promulgation of revised 43 CFR part 

2809, and modifying the MLA pipeline 

regulations in 43 CFR part 2880 would 

not result in any unfunded mandates. 

Therefore, the BLM does not need to 

prepare a statement containing the 

information required by Sections 202 or 

205 of the Unfunded Mandates Reform 

Act (UMRA), 2 U.S.C. 1531 et seq. The 

proposed rule is also not subject to the 

requirements of Section 203 of UMRA 

because it contains no regulatory 

requirements that might uniquely affect 

small governments, nor does it contain 

requirements that either apply to such 

governments or impose obligations 

upon them. 

Executive Order 12630, Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights (Takings) 

This proposed rule is not a 

government action that interferes with 

constitutionally protected property 

rights. This proposed rule would set out 

a process that would provide guidance 

for competitive renewable energy solar 

and wind energy development processes 

and certain pipelines and electric 

transmission facilities on BLM-managed 

public lands. It establishes a fee 

schedule for various components of the 

development of such facilities inside 

SEZs and sites for wind energy that are 

conducive to competitive right-of-way 

leasing and clarifies a process that 

would rely on the BLM’s existing land 

use planning system to allow for these 

types of uses. Also, the rule would set 

out additional requirements for rightsof-way for pipelines exceeding 10 

inches in diameter or transmission lines 

having a capacity of 100 kV or greater. 

This revised process would promote the 

orderly administration of the public 

lands. Because any land use 

authorizations and resulting 

development of facilities under this 

proposed rule would be subject to valid 

existing rights, it does not interfere with 

constitutionally protected property 

rights. Therefore, the Department has 

determined that this proposed rule does 

not have significant takings implications 

and does not require further discussion 

of takings implications under this 

Executive Order. 

Executive Order 13132, Federalism 

The BLM has determined that this 

proposed rule would not have a 

substantial direct effect on the States, or 

the relationship between the national 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. It would not apply 

to State or local governments or State or 

local government entities. Therefore, in 

accordance with Executive Order 13132, 

the BLM has determined that this 

proposed rule does not have sufficient 

Federalism implications to warrant 

preparation of a Federalism Assessment. 

Executive Order 12988, Civil Justice 

Reform 

Under Executive Order 12988, the 

Department has determined that this 

proposed rule would not unduly burden 

the judicial system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. The Department’s Office of 

the Solicitor has reviewed the proposed 

rule to eliminate drafting errors and 

ambiguity. It has been written to 

minimize litigation, provide clear legal 

standards for affected conduct rather 

than general standards, and promote 

simplification and avoid unnecessary 

burdens. 

Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, the BLM has found that this 

proposed rule does not have significant 

tribal implications. On a case-by-case 

basis, existing regulations require any 

right-of-way applicant to consult with 

tribes to discuss the proposed action 

and other aspects of the proposed 

project. Designated leasing areas would 

be identified through the BLM’s land 

use planning process. These areas 

would be designated using the same 

process that current regulations use to 

identify right-of-way corridors and have 

the same tribal consultation 

components. In addition to the 

preliminary review covered in the 

planning process, the proposed 


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59058 Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Proposed Rules 

regulations require site-specific 

consultation. In lands outside 

designated leasing areas, site-specific 

requirements would include preapplication and public meetings. The 

BLM would be able to deny an 

application after these meetings based 

on a variety of criteria, including tribal 

concerns. The proposed rule would call 

for further tribal consultation by the 

BLM and right-of-way applicants, but 

the rulemaking itself is administrative 

in nature and does not establish any 

designated leasing areas, and, therefore, 

does not require tribal consultation. 

Data Quality Act 

In developing this proposed rule, the 

BLM did not conduct or use a study, 

experiment, or survey requiring peer 

review under the Data Quality Act 

(Section 515 of Public Law 106–554). In 

accordance with the Data Quality Act, 

the Department has issued guidance 

regarding the quality of information that 

it relies upon for regulatory decisions. 

This guidance is available at the 

Department’s Web site at: http://

www.doi.gov/archive/ocio/iq.html. 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Executive Order 13211 requires 

Federal agencies to prepare and submit 

to OMB, a Statement of Energy Effects 

for any proposed significant energy 

action. A ‘‘significant energy action’’ is 

defined as any action by an agency that: 

(1) Is a significant regulatory action 

under Executive Order 12866, or any 

successor order; (2) Is likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy; or (3) Is 

designated by the Administrator of 

OIRA as a significant energy action. 

This proposed rule could raise novel 

legal or policy issues within the 

meaning of Executive Order 12866 or 

any successor order. However, the BLM 

believes this proposed rule is unlikely 

to have a significant adverse effect on 

the supply, distribution, or use of 

energy, and could have a positive 

impact on energy supply, distribution, 

or use. In fact, its intent is to facilitate 

such development. The rule would 

codify BLM policies and provide 

additional detail about the process for 

submitting applications for solar or 

wind energy development grants 

outside designated leasing areas, for 

solar or wind energy development 

leases inside designated leasing areas, 

for transmission lines with a capacity of 

100 kV or more, and for pipelines 10 

inches or more in diameter. 

Executive Order 13352, Facilitation of 

Cooperative Conservation 

In accordance with Executive Order 

13352, the BLM has determined that 

this proposed rule would not impede 

the facilitation of cooperative 

conservation. The rule takes appropriate 

account of and respects the interests of 

persons with ownership or other legally 

recognized interests in land or other 

natural resources; properly 

accommodates local participation in the 

Federal decision-making process; and 

provides that the programs, projects, 

and activities are consistent with 

protecting public health and safety. 

Paperwork Reduction Act 

The Paperwork Reduction Act (PRA) 

(44 U.S.C. 3501–3521) provides that an 

agency may not conduct or sponsor, and 

a person is not required to respond to, 

a collection of information, unless it 

displays a currently valid OMB control 

number. Collections of information 

include requests and requirements that 

an individual, partnership, or 

corporation obtain information, and 

report it to a Federal agency. See 44 

U.S.C. 3502(3); 5 CFR 1320.3(c) and (k). 

This proposed rule contains 

information collection requirements that 

are subject to review by OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3501–3520). Collections of information 

include any request or requirement that 

persons obtain, maintain, retain, or 

report information to an agency, or 

disclose information to a third party or 

to the public (44 U.S.C. 3502(3) and 5 

CFR 1320.3(c)). 

OMB has approved the existing 

information collection requirements 

associated with rights-of-way and has 

assigned Control Number 0596–0082 to 

those requirements. That control 

number is administered by the U.S. 

Forest Service and authorizes several 

Federal agencies to use Form SF–299 

(Application for Transportation and 

Utility Systems and Facilities on 

Federal Lands). 

The BLM has requested OMB 

approval for a new control number and 

is inviting public comment on its 

request for: 

1. Proposed information collection 

requirements supplemental to SF–299; 

and 

2. Other proposed information 

collection requirements. 

The information collection activities 

in this proposed rule are described 

below along with estimates of the 

annual burdens. Included in the burden 

estimates are the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing each component of the 

proposed information collection 

requirements. 

The information collection request for 

this proposed rule has been submitted 

to OMB for review under 44 U.S.C. 

3507(d). A copy of the request can be 

obtained from the BLM by electronic 

mail request to Jayme Lopez at 

j06lopez@blm.gov or by telephone 

request to 202–912–7547. The 

information collection request also may 

be viewed online at http://

www.reginfo.gov/public/do/PRAMain. 

The BLM requests comments on the 

following subjects: 

• Whether the collection of 

information is necessary for the proper 

functioning of the BLM, including 

whether the information will have 

practical utility; 

• The accuracy of the BLM’s estimate 

of the burden of collecting the 

information, including the validity of 

the methodology and assumptions used; 

• The quality, utility, and clarity of 

the information to be collected; and 

• How to minimize the information 

collection burden on those who are to 

respond, including the use of 

appropriate automated, electronic, 

mechanical, or other forms of 

information technology. 

If you want to comment on the 

information collection requirements of 

this proposed rule, please send your 

comments directly to OMB, with a copy 

to the BLM, as directed in the 

ADDRESSES section of this preamble. 

Please identify your comments with 

‘‘OMB Control Number 1004–XXXX.’’ 

OMB is required to make a decision 

concerning the collection of information 

contained in this proposed rule between 

30 to 60 days after publication of this 

document in the Federal Register. 

Therefore, a comment to OMB is best 

assured of having its full effect if OMB 

receives it by October 30, 2014. 

At present, 4,017 responses, and 

100,425 burden hours are approved 

annually for the Bureau of Land 

Management for SF–299 under control 

number 0596–0082. No non-hour 

burdens are approved. The proposed 

rule would include program changes of 

an additional 3,127 responses, 47,206 

burden hours, and $1,608,992 in 

application filing fees and processing 

fees (i.e., non-hour burdens) annually. 

Of those totals, the following would 

be additions to the burdens attributed to 

the Bureau of Land Management for SF– 

299 under control number 0596–0082: 

• 3,103 responses; 

• 47,146 hours; and 

• $1,478,992 in application filing fees 

and processing fees. 


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The remaining 24 responses, 60 

hours, and $130,000 in fees would be 

included in the new control number for 

activities in the proposed rule that are 

not associated with SF–299 and control 

number 0596–0082. 

As explained above, the proposed rule 

would supplement the existing 

information collection requirements 

currently authorized by control number 

0596–0082, and add other new 

information collection requirements. 

Summary of Proposed Information 

Collection Requirements Supplemental 

to SF–299 

The information collection 

requirements currently approved for 

SF–299 include the applicant’s identity 

(for example, name, and address, and 

telephone number), project description, 

other data about the proposed project 

(for example, why it is necessary to 

cross Federal lands and why the project 

is needed), and probable effects (for 

example, environmental impacts). In 

addition, the proposed rule would 

require applicants to provide the 

information described below. 

1. General Description of Proposed 

Project and Schedule for Submittal of 

Plan of Development 

New paragraph 2804.10(c)(4) would 

apply to the application requirements 

for: 

• Solar or wind energy development 

projects outside designated leasing 

areas; 

• Electric transmission lines with a 

capacity of 100 kV or more; and 

• Pipelines 10 inches or more in 

diameter. 

These types of applications would have 

to include a general description of the 

proposed project and a schedule for 

submittal of a Plan of Development. The 

new requirements are necessary in order 

to ensure the timely processing of these 

types of applications. 

2. Application for Wind Energy Testing 

Grant and Application for Other Short 

Term Right-of-Way Grant Related to 

Solar or Wind Energy 

Both of these applications are for 

short term right-of-way grants. ‘‘Short 

term right-of-way grant’’ is a new term 

that, as defined in a proposed 

amendment to 43 CFR 2801.5, would 

mean any grant issued for a term of 3 

years or less for such uses as storage 

sites, construction sites, and short-term 

site testing and monitoring activities. 

The proposed rule provides for two 

general types of short-term right-of-way 

grants: (A) Short term wind energy 

testing grants; and (B) Other short-term 

right-of-way grants. 

A. Proposed section 2804.12(a)(8) 

would require an ‘‘application filing 

fee’’ of $2 per acre for applications for 

short term wind energy testing grants, 

both inside and outside designated 

leasing areas. As defined at section 

2801.5 of the proposed rule, the term 

‘‘application filing fee’’ would mean a 

nonrefundable filing fee specific to solar 

and wind energy right-of-way 

applications. 

The BLM would adjust the 

application filing fee once every 10 

years by the average annual change in 

the Implicit Price Deflator, Gross 

Domestic Product (IPD–GDP) for the 

preceding 10-year period and round it to 

the nearest one-half dollar. This fee 

would be necessary in order to defray 

the BLM’s expenses in processing these 

types of applications, and it is in 

accordance with Section 304 of the 

Federal Land Policy and Management 

Act (43 U.S.C. 1734) and the 

Independent Offices Appropriation Act 

(31 U.S.C. 9701), which authorize the 

BLM to recover costs of processing 

applications and other documents 

relating to the public lands. Moreover, 

OMB Circular A–25 (titled ‘‘User 

Charges’’) provides that the Federal 

policy is to assess a charge against each 

identifiable recipient for special Federal 

benefits beyond those received by the 

general public. 

B. Proposed section 2804.30(g) would 

apply to applications for two types of 

grants that would authorize testing for 

wind energy potential outside 

designated leasing areas: (1) A sitespecific grant, which would authorize 

the installation and operation of a single 

meteorological tower or other wind 

study facility; and (2) A project area 

grant, which would authorize the 

installation and operation of any 

number of meteorological towers or 

other wind study facilities. These 

applications would be subject to a $2 

per-acre application filing fee in 

accordance with section 2804.12(a)(8). 

This regulation would allow only one 

applicant (i.e., a ‘‘preferred applicant’’) 

to apply for a wind energy testing grant. 

The preferred applicant would be the 

successful bidder in a competitive 

process beginning either with the filing 

of competing applications for the same 

facility or system, or with an offer by the 

BLM of a parcel for competitive bidding. 

In the latter process, the successful 

bidder also would have to submit the 

bonus bid to the BLM within 15 days of 

the date of the offer. See proposed 43 

CFR 2804.30(f). This information 

collection activity is necessary for the 

competitive process for lands outside 

designated leasing areas. 

C. Proposed section 2805.11(b)(2)(i) 

through (b)(2)(iii) would authorize 

applications for the two types of wind 

energy testing grants authorized under 

proposed section 2804.30(g), plus shortterm grants for geotechnical testing and 

other temporary land-disturbing 

activities associated with solar and 

wind energy. Applications for wind 

energy testing grants would be subject to 

a $2 per-acre application filing fee in 

accordance with section 2804.12(a)(8). 

Applications for other types of short 

term rights-of-way associated with solar 

or wind energy would be subject to a 

processing fee in accordance with 

section 2804.14. This information 

collection activity is necessary for the 

orderly management of activities that 

may precede an application for a longer 

term solar or wind energy right-of-way. 

D. Proposed section 2809.19(c) would 

provide a process for applying for shortterm grants for testing and monitoring 

purposes inside designated leasing 

areas. This application would apply to 

wind energy testing only, and would be 

subject to a $2 per-acre application 

filing fee in accordance with section 

2804.12(a)(8). This information 

collection activity is necessary for the 

competitive process for lands inside 

designated leasing areas. 

3. Application for, or Request To 

Assign, Solar or Wind Energy 

Development Right-of-Way 

As defined at section 2801.5 of the 

proposed rule, the term ‘‘application 

filing fee’’ would mean a nonrefundable 

filing fee specific to solar and wind 

energy right-of-way applications. This 

fee would be necessary in order to 

defray the BLM’s expenses in processing 

these types of applications, and it is 

accordance with Section 304 of the 

Federal Land Policy and Management 

Act (43 U.S.C. 1734) and the 

Independent Offices Appropriation Act 

(31 U.S.C. 9701), which authorize the 

BLM to recover costs of processing 

applications and other documents 

relating to the public lands. Moreover, 

OMB Circular A–25 (titled ‘‘User 

Charges’’) provides that the Federal 

policy is to assess a charge against each 

identifiable recipient for special Federal 

benefits beyond those received by the 

general public. 

Proposed section 2804.30(g) would 

allow only one applicant (i.e., a 

‘‘preferred applicant’’) to apply for a 

right-of-way grant outside a designated 

leasing area for a solar or wind energy 

development grant. The preferred 

applicant would be the successful 

bidder in a competitive process 

beginning either with the filing of 

competing applications for the same 


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facility or system, or with an offer by the 

BLM of a parcel for competitive bidding. 

In the latter process, the successful 

bidder also would have to submit the 

bonus bid to the BLM within 15 days of 

the date of the offer. See proposed 43 

CFR 2804.30(f). The information 

required in such an application is listed 

at existing 43 CFR 2804.12(a)(1) through 

(a)(7), which would not be amended in 

the proposed rule. This collection is 

necessary for the competitive process 

for lands outside designated leasing 

areas. 

A. Existing section 2807.21 allows a 

holder of a right-of-way grant to apply 

to assign any right or interest in that 

grant. This regulation also requires the 

proposed assignee to file an assignment 

application and follow the same 

procedures and standards as for a new 

right-of-way grant. 

As amended, section 2807.21 would: 

• Apply the requirements for 

assignments to right-of-way leases as 

well as grants; 

• Add a list of actions that may 

require an assignment; and 

• Provide that a change in the 

holder’s name only does not constitute 

an assignment. 

B. Proposed section 2804.12(a)(8) 

would require an ‘‘application filing 

fee’’ of $15 per acre for applications for, 

and requests to assign, solar and wind 

energy development rights-of-way. 

The BLM would adjust the 

application filing fee once every 10 

years by the average annual change in 

the Implicit Price Deflator, Gross 

Domestic Product (IPD–GDP) for the 

preceding 10-year period and round it to 

the nearest one-half dollar. This 

information collection activity is 

necessary for the orderly administration 

of right-of-way leases and grants. 

4. Application for Renewal of Wind 

Energy Project Area Testing Grant or 

Other Short Term Grant 

Proposed sections 2805.11(b)(2)(ii) 

and 2805.14(h) would authorize holders 

of short term grants for wind energy 

project area testing to apply for a 

renewal of up to three years, so long as 

the renewal application is accompanied 

by a wind energy development 

application and a Plan of Development. 

Authorizations for wind energy site 

specific testing would not be renewable. 

Proposed section 2805.11(b)(2)(iii) 

would authorize holders of other types 

of short term testing and monitoring 

grants (for example, geotechnical 

testing) to apply for a renewal of up to 

three years. Processing fees in 

accordance with 43 CFR 2804.14, as 

amended, would apply to these renewal 

applications. 

These opportunities for renewal of 

short term grants are necessary in order 

to enable the completion of complex 

testing of wind energy potential, and in 

order to apprise the BLM whether or not 

the holder of an expiring short term 

right-of-way intends to proceed with 

development. 

5. Environmental, Technical, and 

Financial Records, Reports, and Other 

Information 

Proposed 43 CFR 2805.12(a)(15) 

would authorize the BLM to require a 

holder of any type of right-of-way to 

provide, or give the BLM access to, any 

pertinent environmental, technical, and 

financial records, reports, and other 

information. The BLM would use the 

information for monitoring and 

inspection activities. 

6. Application for Renewal of Solar or 

Wind Energy Development Grant or 

Lease 

Proposed amendments to 43 CFR 

2805.14 and 2807.22 would authorize 

holders of leases and grants to apply for 

renewal of their rights-of-way. 

Processing fees in accordance with 43 

CFR 2804.14, as amended, would apply 

to these renewal applications. The BLM 

would use the information to decide 

whether to renew rights-of-way. 

7. Request for Amendment or Name 

Change (FLPMA) 

Proposed sections 2807.14(g) and 

2807.22 would require a holder of any 

type of FLPMA right-of-way to contact 

the BLM: 

• Before engaging in any activity that 

is a ‘‘substantial deviation’’ from what is 

authorized; 

• Whenever site-specific 

circumstances or conditions arise that 

result in the need for changes that are 

not substantial deviations; 

• Before assigning, in whole or in 

part, any right or interest in a grant or 

lease; and 

• Before changing the name of a 

holder (i.e., when the name change is 

not the result of an underlying change 

in control of the right-of-way). 

A request for an amendment of a 

right-of-way would be required in cases 

of a substantial deviation (for example, 

a change in the boundaries of the rightof-way, major improvements not 

previously approved by the BLM, or a 

change in the use of the right-of-way). 

Other changes, such as changes in 

project materials, or changes in 

mitigation measures within the existing, 

approved right-of-way area, would be 

required to be submitted to the BLM for 

review and approval. In order to assign 

a grant, the proposed assignee must file 

an assignment application and follow 

the same procedures and standards as 

for a new grant or lease, as well as pay 

application and processing fees. In order 

to request a name change, the holder 

would be required to file an application 

and follow the same procedures and 

standards as for a new grant or lease and 

pay processing fees, but no application 

fee would be required. The following 

documents are also required in the case 

of a name change: 

• A copy of the court order or legal 

document effectuating the name change 

of an individual; or 

• If the name change is for a 

corporation, a copy of the corporate 

resolution proposing and approving the 

name change, a copy of a document 

showing acceptance of the name change 

by the State in which incorporated, and 

a copy of the appropriate resolution, 

order, or other document showing the 

name change. 

In all these cases, the BLM would use 

the information for monitoring and 

inspection purposes, and to maintain 

current data on rights-of-way. 

7. Plan of Development for Solar Energy 

Development Lease Inside Designated 

Leasing Area and Plan of Development 

for Wind Energy Development Lease 

Inside Designated Leasing Area 

Proposed section 2809.18(c) would 

require the holder of a wind or solar 

energy development lease for lands 

inside a designated leasing area to 

submit a Plan of Development within 

two years of the lease issuance date that 

addresses all pre-development and 

development activities. This collection 

activity is necessary to ensure diligent 

development. 

This new provision would be a new 

use of Item # 7 of SF–299, which calls 

for the following information: 

Project description (describe in detail): (a) 

Type of system or facility (e.g., canal, 

pipeline, road); (b) related structures and 

facilities; (c) physical specifications (length, 

width, grading, etc.); (d) term of years 

needed; (e) time of year of use or operation; 

(f) volume or amount of product to be 

transported; (g) duration and timing of 

construction; and (h) temporary work areas 

needed for construction. 

This collection has been justified and 

authorized under 0596–0082. In 

addition, proposed section 2809.18(c) 

would provide that the minimum 

requirements for a ‘‘Wind Energy Plan 

of Development’’ or ‘‘Solar Energy Plan 

of Development’’ can be found at a link 

to a template at www.blm.gov. To some 

extent, that template duplicates the 

information required by Item # 7 of SF– 

299. The following requirements do not 

duplicate the elements listed in SF–299: 


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• Operations and maintenance. This 

information will assist the BLM in 

verifying the right-of-way holder’s 

compliance with terms and conditions 

regarding all aspects of operations and 

maintenance, including road 

maintenance and workplace safety; 

• Environmental considerations. This 

information will assist the BLM in 

monitoring compliance with terms and 

conditions regarding mitigation 

measures and site-specific issues such 

as protection of sensitive species and 

avoidance of conflicts with recreation 

uses of nearby lands; 

• Maps and drawings. This 

information will assist the BLM in 

monitoring compliance with all terms 

and conditions; and 

• Supplementary information. This 

information, which will be required 

after submission of the holder’s initial 

Plan of Development, will assist the 

BLM in reviewing possible alternative 

designs and mitigation measures for a 

final Plan of Development. 

8. General Description of Proposed Oil 

or Gas Pipeline 10 inches or More in 

Diameter and Schedule for Submittal of 

Plan of Development 

Section 2884.10(d)(3) would list 

conditions for BLM acceptance of an 

application for an oil or gas pipeline 10 

inches or more in diameter. One of these 

conditions would be the submission of 

a general description of the proposed 

project and a schedule for submitting a 

Plan of Development. The BLM would 

use the information to assist in its 

decision whether or not to process an 

application for a large-scale right-of-way 

of this type. 

9. Request for Amendment, Assignment, 

or Name Change (MLA) 

Proposed sections 2886.12 and 

2887.11 would pertain to holders of 

MLA rights-of-way and temporary use 

permits. A temporary use permit 

authorizes a holder of an MLA right-ofway to use land temporarily in order to 

construct, operate, maintain, or 

terminate a pipeline, or for purposes of 

environmental protection or public 

safety. See 43 CFR 2881.12. The 

proposed regulations would require 

these holders to contact the BLM: 

• Before engaging in any activity that 

is a ‘‘substantial deviation’’ from what is 

authorized; 

• Whenever site-specific 

circumstances or conditions arise that 

result in the need for changes that are 

not substantial deviations; 

• When the holder submits a 

certification of construction; 

• Before assigning, in whole or in 

part, any right or interest in a grant or 

lease; and 

• Before changing the name of a 

holder (i.e., when the name change is 

not the result of an underlying change 

in control of the right-of-way). 

A request for an amendment of a 

right-of-way or temporary use permit 

would be required in cases of a 

substantial deviation (for example, a 

change in the boundaries of the right-ofway, major improvements not 

previously approved by the BLM, or a 

change in the use of the right-of-way). 

Other changes, such as changes in 

project materials, or changes in 

mitigation measures within the existing, 

approved right-of-way area, would be 

required to be submitted to the BLM for 

review and approval. In order to assign 

a grant, the proposed assignee must file 

an assignment application and follow 

the same procedures and standards as 

for a new grant or lease, as well as pay 

processing fees. In order to request a 

name change, the holder would be 

required to file an application and 

follow the same procedures and 

standards as for a new grant or lease and 

pay processing fees, but no application 

fee would be required. The following 

documents are also required in the case 

of a name change: 

• A copy of the court order or legal 

document effectuating the name change 

of an individual; or 

• If the name change is for a 

corporation, a copy of the corporate 

resolution proposing and approving the 

name change, a copy of a document 

showing acceptance of the name change 

by the State in which incorporated, and 

a copy of the appropriate resolution, 

order, or other document showing the 

name change. 

In all these cases, the BLM would use 

the information for monitoring and 

inspection purposes, and to maintain 

current data on rights-of-way. 

10. Certification of Construction 

A certification of construction is a 

document a holder of an MLA right-ofway must submit to the BLM after 

finishing construction of a facility, but 

before operations begin. The BLM will 

use the information to verify that the 

holder has constructed and tested the 

facility to ensure that it complies with 

the terms of the right-of-way and is in 

accordance with applicable Federal and 

State laws and regulations. 

Summary of Information Collection 

Requirements Met by Existing SF–299 

All of the respondents that would be 

subject to the proposed rule, and that 

would be required to use SF–299, would 

be required to provide information 

about their identity (Item Numbers 1 

through 6, as applicable). The following 

table shows additional ways 

respondents would use SF–299 as 

currently approved under control 

number 0596–0082. 

INFORMATION COLLECTION REQUIREMENTS MET BY EXISTING SF–299 

Type of response Number of 

responses Key portions of SF–299 to be used by respondents, as applicable 

A. B. C. 

General description of proposed project 

and schedule for submittal of Plan of 

Development 43 CFR 2804.10(c)(4).

20 Project description (Item 7); Other data on the nature and location of the proposed 

project (Items 8, 11, 13, and 15); Technical and financial capability (Item 12); 

Other governmental approvals (Items 9, 14, and 20); and Probable effects (Items 

17 through 19). 

Application for wind energy testing grant, 

43 CFR 2804.12(a)(8), 2804.30(g), 

2805.11(b)(2)(i), 2805.11(b)(2)(ii), and 

2809.19(c).

40 Project description (Item 7); Other data on the nature and location of the proposed 

project (Items 8, 11, 13, and 15); Technical and financial capability (Item 12); 

Other governmental approvals (Items 9, 14, and 20); and Probable effects (Items 

17 through 19). 

Application for other short term grant related to solar or wind energy, 43 CFR 

2804.14 and 2805.11(b)(2)(iii).

1 Project description (Item 7); Other data on the nature and location of the proposed 

project (Items 8, 11, 13, and 15); Technical and financial capability (Item 12); 

Other governmental approvals (Items 9, 14, and 20); and Probable effects (Items 

17 through 19). 


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INFORMATION COLLECTION REQUIREMENTS MET BY EXISTING SF–299—Continued 

Type of response Number of 

responses Key portions of SF–299 to be used by respondents, as applicable 

A. B. C. 

Application for, or request to assign, solar 

or wind energy development right-ofway, 43 CFR 2804.12(a)(8), 

2804.30(g), and 2807.21.

11 Project description (Item 7); Other data on the nature and location of the proposed 

project (Items 8, 11, 13, and 15); Technical and financial capability (Item 12); 

Other governmental approvals (Items 9, 14, and 20); and Probable effects (Items 

17 through 19). 

Application for renewal of wind energy 

project area testing grant or other short 

term grant, 43 CFR 2804.14, 

2805.11(b)(2)(ii), and 2805.14(h).

6 Project description (Item 7); Other data on the nature and location of the proposed 

project (Items 8, 11, 13, and 15); Technical and financial capability (Item 12); 

Other governmental approvals (Items 9, 14, and 20); and Probable effects (Items 

17 through 19). 

Environmental, technical, and financial 

records, reports, and other information, 

43 CFR 2805.12(a)(15).

20 Project description (Item 7); Nature and location of the project (Items 7, 8, 11, 13, 

and 15); Technical and financial capability (Item 12); Other governmental approvals (Items 9, 14, and 20); and Probable effects (Items 17 through 19). 

Application for renewal of solar or wind 

energy development grant or lease, 43 

CFR 2805.14(g) and 2807.22.

1 Project description (Item 7); Other data on the nature and location of the proposed 

project (Items 8, 11, 13, and 15); Technical and financial capability (Item 12); 

Other governmental approvals (Items 9, 14, and 20); and Probable effects (Items 

17 through 19). 

Request for amendment or name change 

(FLPMA), 43 CFR 2807.11(b) and (d) 

and 2807.21.

30 Project description (Item 7); and Other data on the nature and location of the proposed project (Items 8, 11, 13, and 15). 

Plan of Development for solar energy development lease inside designated 

leasing area, 43 CFR 2809.18(c).

1 Project description (Item 7); and Other data on the nature and location of the proposed project (Items 8, 11, 13, and 15). 

Plan of Development for wind energy development lease inside designated 

leasing area, 43 CFR 2809.18(c).

1 Project description (Item 7); and Other data on the nature and location of the proposed project (Items 8, 11, 13, and 15). 

General description of proposed oil or 

gas pipeline 10 inches or more in diameter and schedule for submittal of 

Plan of Development, 43 CFR 

2884.10(d)(3).

105 Project description (Item 7); Other data on the nature and location of the proposed 

project (Items 8, 11, 13, and 15); Technical and financial capability (Item 12); 

Other governmental approvals (Items 9, 14, and 20); and Probable effects (Items 

17 through 19). 

Request for amendment, assignment, or 

name change (MLA), 43 CFR 

2886.12(b) and (d) and 43 CFR 

2887.11.

2,862 Project description (Item 7); and Other data on the nature and location of the proposed project (Items 8, 11, 13, and 15). 

Certification of construction, 43 CFR 

2886.12(f).

5 Project description (Item 7); and Other data on the nature and location of the proposed project (Items 8, 11, 13, and 15). 

Totals ................................................. 3,103 

The estimated hour burdens of the 

proposed supplemental collection 

requirements are shown in the following 

table. 

PROPOSED INFORMATION COLLECTION REQUIREMENTS SUPPLEMENTAL TO SF–299: ESTIMATED ANNUAL HOUR BURDENS

Type of response Number of 

responses 

Hours per 

response 

Total hours 

(column B × 

column C) 

A. B. C. D. 

General description of proposed project and schedule for submittal of Plan of Development, 

43 CFR 2804.10(c)(4) .............................................................................................................. 20 2 40 

Application for wind energy testing grant, 43 CFR 2804.12(a)(8), 2804.30(g), 2805.11(b)(2)(i), 

2805.11(b)(2)(ii), and 2809.19(c) ............................................................................................. 40 8 320 

Application for other short term grant associated with solar or wind energy, 43 CFR 2804.14 

and 2805.11(b)(2)(iii) ................................................................................................................ 1 8 8 

Application for, or request to assign, solar or wind energy development right-of-way, 43 CFR 

2804.12(a)(8), 2804.30(g), and 2807.21 .................................................................................. 11 12 132 

Application for renewal of wind energy project area testing grant or other short term grant, 43 

CFR 2804.14, 2805.11(b)(2)(ii), and 2805.14(h) ..................................................................... 6 6 36 

Environmental, technical, and financial records, reports, and other information, 43 CFR 

2805.12(a)(15) .......................................................................................................................... 20 4 80 

Application for renewal of solar or wind energy development grant or lease, 43 CFR 

2805.14(g) and 2807.22 ........................................................................................................... 1 12 12 

Request for amendment or name change (FLPMA), 43 CFR 2807.11(b) and (d) and 2807.21 30 16 480 

Plan of Development for solar energy development lease inside designated leasing area, 43 

CFR 2809.18(c) ........................................................................................................................ 1 8 8 


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PROPOSED INFORMATION COLLECTION REQUIREMENTS SUPPLEMENTAL TO SF–299: ESTIMATED ANNUAL HOUR

BURDENS—Continued 

Type of response Number of 

responses 

Hours per 

response 

Total hours 

(column B × 

column C) 

A. B. C. D. 

Plan of Development for wind energy development lease inside designated leasing area, 43 

CFR 2809.18(c) ........................................................................................................................ 1 8 8 

General description of proposed oil or gas pipeline 10 inches or more in diameter and schedule for submittal of Plan of Development, 43 CFR 2884.10(d)(3) ........................................... 105 2 210 

Request for amendment, assignment, or name change (MLA), 43 CFR 2886.12(b) and (d) 

and 43 CFR 2887.11 ............................................................................................................... 2,862 16 45,792 

Certification of construction, 43 CFR 2886.12(f) ......................................................................... 5 4 20

Totals .................................................................................................................................... 3,103 ........................ 47,146 

Some of these proposed information 

collection activities would include fees 

to reimburse the United States for 

administrative costs. These fees would 

be collected under the authority of 43 

U.S.C. 1734, which authorizes the 

Secretary of the Interior to establish 

reasonable filing and service fees ‘‘with 

respect to applications and other 

documents relating to the public lands.’’ 

Other information collection 

requirements in the proposed rule 

would include fees to discourage 

speculation by use of frivolous right-ofway applications for solar or wind 

energy. The amounts of these fees are 

not intended for cost recovery. 

These fees (i.e., non-hour burdens) are 

itemized in the following table. 

PROPOSED INFORMATION COLLECTION REQUIREMENTS SUPPLEMENTAL TO SF–299: ESTIMATED ANNUAL NON-HOUR

BURDENS

Type of response Number of 

responses 

Amount of fee per 

response Purpose of fee 

Total fees 

(column B × 

column C) 

A. B. C. D. E. 

Application for wind energy testing grant, 43 CFR 

2804.12(a)(8), 2804.30(g), 2805.11(b)(2)(i), 

2805.11(b)(2)(ii), and 2809.19(c).

40 $2 per acre × average of 

6,000 acres per application = $12,000.

Discourage speculation ... $480,000 

Application for other short term grant related to solar 

or wind energy 43 CFR 2804.14 and 

2805.11(b)(2)(iii).

1 $1,124 1 ............................ Cost recovery .................. 1,124 

Application for, or request to assign, solar or wind 

energy development right-of-way 43 CFR 

2804.12(a)(8), 2804.30(g), and 2807.21.

11 $15 per acre × average of 

6,000 acres per application = $90,000.

Discourage speculation ... 990,000 

Application for renewal of wind energy project area 

testing grant or other short term grant 43 CFR 

2804.14, 2805.11(b)(2)(ii), 2805.11(b)(2)(iii), and 

2805.14(h).

6 $1,124 2 ............................ Cost recovery .................. 6,744 

Application for renewal of solar or wind energy development grant or lease 43 CFR 2805.14(g) and 

2807.22.

1 $1,124 3 ............................ Cost recovery .................. 1,124 

Totals .................................................................... 59 .......................................... .......................................... 1,478,992 

1This estimate is based on the BLM’s experience. The amount shown is for Processing Category Four for calendar year 2014, in accordance 

with 43 CFR 2804.14. 2This estimate is based on the BLM’s experience. The amount shown is for Processing Category Four for calendar year 2014, in accordance 

with 43 CFR 2804.14. 3This estimate is based on the BLM’s experience. The amount shown is for Processing Category Four for calendar year 2014, in accordance 

with 43 CFR 2804.14. 

Summary of Other Proposed 

Information Collection Requirements 

1. Pre-Application Information for 

Large-Scale Rights-of-Way 

In accordance with proposed 43 CFR 

2804.10, anyone interested in a right-ofway for a large-scale project (i.e., for 

solar or wind energy, for a transmission 

line with a capacity of 100 kV or more, 

or for any pipeline 10 inches or more in 

diameter) would be required to hold 

pre-application meetings. Among other 

things, these meetings would be 

opportunities for the proponent of a 

project to provide information to the 

BLM, other governmental entities, and 

various stakeholders. The potential 

applicant would be required to pay 

reasonable costs associated with the preapplication requirements, with the 

option of paying the-actual costs. The 

information would assist the BLM in 

protecting public lands and in 

facilitating application processing for 

these types of authorizations, which are 

generally larger and more complex than 

the average right-of-way authorization. 


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2. Showing of Good Cause 

Any right-of-way for solar and wind 

energy requires due diligence in 

development. In accordance with 

proposed 43 CFR 2805.12(c)(6), the BLM 

would notify the holder before 

suspending or terminating the right-ofway for lack of due diligence. This 

notice would provide the holder with a 

reasonable opportunity to correct any 

noncompliance or to start or resume use 

of the right-of-way. A showing of good 

cause would be required in response. 

That showing would have to include: 

• Reasonable justification for any 

delays in construction (for example, 

delays in equipment delivery, legal 

challenges, and acts of God); 

• The anticipated date of completion 

of construction and evidence of progress 

toward the start or resumption of 

construction; and 

• A request for extension of the 

timelines in the approved POD. 

The BLM would use the information to 

determine whether or not to suspend or 

terminate the right-of-way for failure to 

comply with due diligence 

requirements. 

3. Reclamation Cost Estimate for Lands 

Outside Designated Leasing Area 

The proposed rule provides that a 

bond would be required for each solar 

and wind energy development outside a 

designated leasing area. In accordance 

with proposed section 2305.20(a)(3), the 

bond amount would be based on the 

holder’s estimate of the costs for 

reclaiming and restoring the public 

lands, include the administrative costs 

for the BLM to administer a contract to 

reclaim and restore the lands in the 

authorization. The BLM would use the 

reclamation cost estimate to determine 

the appropriate bond amount. 

4. Nomination of Parcel of Land Inside 

Designated Leasing Area 

Under proposed section 2809.10, the 

BLM could: (1) On its own initiative 

offer lands competitively inside 

designated leasing areas for solar or 

wind energy development, or (2) solicit 

nominations for such development. 

Proposed section 2809.11 would 

describe the nomination process. 

In order to nominate a parcel under 

this process, the nominator would be 

required to be qualified to hold a rightof-way under 43 CFR 2803.10. After 

publication of a notice by the BLM, 

anyone meeting the qualifications could 

submit a nomination for a specific 

parcel of land to be developed for solar 

or wind energy. There would be a fee of 

$5 per acre for each nomination. The 

following information would be 

required: 

• The nominator’s name and personal 

or business address; and 

• The legal land description; and 

• A map of the nominated lands. 

The BLM would use the information to 

communicate with the nominator and to 

determine whether or not to proceed 

with a competitive offer. 

5. Expression of Interest in Parcel of 

Land Inside Designated Leasing Area 

Proposed section 2809.11 would 

provide that the BLM may consider 

informal expressions of interest 

suggesting lands to be included in a 

competitive offer. The expression would 

have to include a description of the 

suggested lands and a rationale for their 

inclusion in a competitive offer. The 

information would assist the BLM in 

determining whether or not to proceed 

with a competitive offer. 

The estimated hour and non-hour 

burdens of these proposed collection 

activities are shown in the following 

tables. 

OTHER PROPOSED INFORMATION COLLECTION REQUIREMENTS: ESTIMATED ANNUAL HOUR BURDENS

Type of response Number of 

responses 

Hours per 

response 

Total hours 

(column B × 

column C) 

Annual cost 

(column D × 

$61.22) 

A. B. C. D. E. 

Pre-application information for large-scale rights-of-way, 43 CFR 

2804.10(a)(4) and (b) ................................................................................... 20 2 40 $2,449 

Showing of good cause, 43 CFR 2805.12(c)(6) .............................................. 1 2 2 122 

Reclamation cost estimate for lands outside designated leasing area, 43 

CFR 2805.20(a)(3) ....................................................................................... 1 10 10 612 

Nomination of parcel of land inside designated leasing area, 43 CFR 

2809.11 ........................................................................................................ 1 4 4 245 

Expression of interest in parcel of land inside designated leasing area, 43 

CFR 2809.11 ................................................................................................ 1 4 4 245 

Totals ........................................................................................................ 24 ........................ 60 3,673 

In connection with the submission of 

pre-application information, the 

proposed rule would require a cost 

recovery fee to reimburse the United 

States for administrative costs. This fee 

would be collected under the authority 

of 43 U.S.C. 1734, which authorizes the 

Secretary of the Interior to establish 

reasonable filing and service fees ‘‘with 

respect to applications and other 

documents relating to the public lands.’’ 

In connection with the nomination of 

a parcel inside a designated leasing area, 

the proposed rule would require a fee 

set at an amount to discourage 

speculation by use of a frivolous 

nomination. The amount of this fee is 

not intended for cost recovery. 


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OTHER PROPOSED INFORMATION COLLECTION REQUIREMENTS: ESTIMATED ANNUAL NON-HOUR BURDENS

Type of response Number of 

responses Amount of fee per response Purpose of fee 

Total fees 

(column B × 

column C) 

A. B. C. D. E. 

Pre-application information for 

large-scale rights-of-way 43 CFR 

2804.10(a)(4) and (b).

20 $5,000 ............................................ Cost recovery ................................. $100,000 

Nomination of parcel of land inside 

designated leasing area 43 CFR 

2809.11.

1 $5 per acre × average of 6,000 

acres per nomination = $30,000.

Discourage speculation .................. $30,000 

Totals ....................................... 21 ........................................................ ........................................................ $130,000 

Author 

The principal author of this rule is 

Jayme Lopez, Realty Specialist of the 

National Renewable Energy 

Coordination Office Washington Office, 

Bureau of Land Management, 

Department of the Interior. He was 

assisted by Jean Sonneman and Charles 

Yudson of the Division of Regulatory 

Affairs, Washington Office, Bureau of 

Land Management, Department of the 

Interior. 

List of Subjects 

43 CFR Part 2800 

Communications, Electric power, 

Highways and roads, Penalties, Public 

lands and rights-of-way, Reporting and 

recordkeeping requirements. 

43 CFR Part 2880 

Administrative practice and 

procedures, Common carriers, Pipelines, 

Federal lands and rights-of-way, 

Reporting and recordkeeping 

requirements. 

Accordingly, for the reasons stated in 

the preamble, the BLM proposes to 

amend 43 CFR parts 2800 and 2880 as 

set forth below: 

PART 2800—RIGHTS–OF–WAY UNDER 

THE FEDERAL LAND POLICY AND 

MANAGEMENT ACT 

■ 1. Revise the heading of Part 2800 to 

read as set forth above. 

■ 2. The authority citation for part 2800 

continues to read as follows: 

Authority: 43 U.S.C. 1733, 1740, 1763, and 

1764. 

Subpart 2801—General Information 

■ 3. Amend § 2801.5(b) by: 

■ a. Adding, in alphabetical order, 

definitions of ‘‘Acreage rent,’’ 

‘‘Application filing fee,’’ ‘‘Assignment,’’ 

‘‘Designated leasing area,’’ ‘‘Megawatt 

(MW) capacity fee,’’ ‘‘Megawatt rate,’’ 

‘‘Performance and reclamation bond,’’ 

‘‘Reclamation cost estimate,’’ 

‘‘Screening criteria for solar and wind 

energy development,’’ and ‘‘Short-term 

right-of-way grant;’’ and 

■ b. Revising the definitions of 

‘‘Designated right-of-way corridor,’’ 

‘‘Management overhead costs,’’ and 

‘‘Right-of-way.’’ 

The additions and revisions read as 

follows: 

§ 2801.5 What acronyms and terms are 

used in the regulations in this part? 

* * * * * 

Acreage rent means rent assessed for 

solar and wind energy development 

grants and leases that is determined by 

the number of acres authorized for the 

grant or lease. 

* * * * * 

Application filing fee means a filing 

fee specific to solar and wind energy 

applications. 

Assignment means the transfer, in 

whole or in part, of any right or interest 

in a right-of-way grant or lease from the 

holder (assignor) to a subsequent party 

(assignee) with the BLM’s written 

approval. A change in ownership of the 

grant or lease, or other related changein-control transaction involving the 

holder, including a merger or 

acquisition, also constitutes an 

assignment for purposes of these 

regulations requiring the BLM’s written 

approval, unless applicable statutory 

authority provides otherwise. 

* * * * * 

Designated leasing area means a 

parcel of land with specific boundaries 

identified by the BLM land use planning 

process as being a preferred location for 

solar or wind energy development that 

must be leased competitively. Solar 

energy zones are an example of a 

designated leasing area for solar energy. 

Designated right-of-way corridor 

means a parcel of land with specific 

boundaries identified by law, Secretarial 

order, the land-use planning process, or 

other management decision, as being a 

preferred location for existing and 

future linear rights-of-way and facilities. 

The corridor may be suitable to 

accommodate more than one right-ofway use or facility, provided that they 

are compatible with one another and the 

corridor designation. 

* * * * * 

Management overhead costs means 

Federal expenditures associated with a 

particular Federal agency’s directorate. 

The BLM’s directorate includes all 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. 

Megawatt (MW) capacity fee means 

the fee paid in addition to the acreage 

rent, for solar and wind energy 

development grants and leases. The MW 

capacity fee is the approved MW 

capacity of the solar or wind energy 

grant or lease multiplied by the 

appropriate MW rate. A grant or lease 

may provide for stages of development 

and will be charged a fee for each stage 

by multiplying the MW rate to the 

approved stage of the project. 

Megawatt rate means the price of each 

MW of capacity for various solar and 

wind energy technologies as determined 

by the MW rate formula. Current MW 

rates are found on the BLM’s MW Rate 

Schedule which can be obtained at any 

BLM office or at http://www.blm.gov. 

The MW rate is calculated by 

multiplying the total hours per year by 

the net capacity factor, by the MW hour 

(MWh) price, and by the rate of return, 

where: 

(1) ‘‘Net capacity factor’’ means the 

average operational time divided by the 

average potential operational time of a 

solar or wind energy development, 

multiplied by the current technology 

efficiency rates. The net capacity factor 

for each technology type is: 

(i) Photovoltaic (PV)—20 percent; 

(ii) Concentrated photovoltaic (CPV) 

and concentrated solar power (CSP)—25 

percent; 

(iii) CSP with storage capacity of 3 

hours or more—30 percent; and 


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(iv) Wind energy—35 percent; 

(2) ‘‘Megawatt hour (MWh) price’’ 

means the 5-year average of the annual 

weighted average wholesale prices per 

MWh for the major Intercontinental 

Exchange (ICE) (see https://

beta.theice.com/marketdata/reports/

ReportCenter.shtml), or its successor in 

interest, at trading hubs serving the 11 

western States of the continental United 

States (U.S.); 

(3) ‘‘Rate of return’’ means the 

relationship of income (to the property 

owner) to revenue generated from 

authorized solar and wind energy 

development facilities based on the 10- 

year average of the 20-year U.S. 

Treasury bond yield rounded up to the 

nearest one-half percent; and 

(4) ‘‘Hours per year’’ means the total 

number of hours in a year, which, for 

purposes of this part, means 8,760 

hours. 

* * * * * 

Performance and reclamation bond 

means the document provided by the 

holder of a right-of-way grant or lease 

that provides the appropriate financial 

guarantees, including cash, to cover 

potential liabilities or specific 

requirements identified by the BLM for 

the construction, operation, 

decommissioning, and reclamation of an 

authorized right-of-way on public land. 

(1) Acceptable bond instruments 

include cash, cashier’s or certified 

check, certificate or book entry deposits, 

negotiable U.S. Treasury securities, and 

surety bonds from the approved list of 

sureties (U.S. Treasury Circular 570) 

payable to the BLM. Irrevocable letters 

of credit payable to the BLM and issued 

by banks or financial institutions 

organized or authorized to transact 

business in the United States are also 

acceptable bond instruments. Insurance 

policies can also qualify as acceptable 

bond instruments, provided that the 

BLM determines that the insurance 

policies will guarantee performance of 

financial obligations and are issued by 

insurance carriers that have the 

authority to issue insurance policies in 

the applicable jurisdiction and whose 

insurance operations are organized or 

authorized to transact business in the 

U.S. 

(2) Unacceptable bond instruments. 

The BLM will not accept a corporate 

guarantee as an acceptable form of bond 

instrument. 

* * * * * 

Reclamation cost estimate (RCE) 

means the estimate of costs to restore 

the land to a condition that will support 

pre-disturbance land uses. This includes 

the cost to remove all improvements 

made under the right-of-way 

authorization, return the land to 

approximate original contour, and 

establish a sustainable vegetative 

community. The RCE will be used to 

establish the appropriate amount for 

financial guarantees of land uses on the 

public lands, including those uses 

authorized by right-of-way grants or 

leases issued under this part. 

* * * * * 

Right-of-way means the public lands 

that the BLM authorizes a holder to use 

or occupy under a particular grant or 

lease. 

* * * * * 

Screening criteria for solar and wind 

energy development refers to the 

policies and procedures that the BLM 

uses to prioritize how it processes solar 

and wind energy development right-ofway applications in order to facilitate 

the environmentally responsible 

development of such facilities through 

the consideration of resource conflicts, 

land use plans, and applicable statutory 

and regulatory requirements. 

Applications with lesser resource 

conflicts are anticipated to be less costly 

and time-consuming for the BLM to 

process and will be prioritized over 

those with greater resource conflicts. 

Short-term right-of-way grant means 

any grant issued for a term of 3 years or 

less for such uses as storage sites, 

construction areas, and site testing and 

monitoring activities, including site 

characterization studies and 

environmental monitoring. 

* * * * * 

■ 4. In § 2801.6, revise paragraph (a)(2) 

to read as follows: 

§ 2801.6 Scope. 

(a) * * * 

(2) Grants to Federal departments or 

agencies for all systems and facilities 

identified in § 2801.9(a), including 

grants for transporting by pipeline and 

related facilities, commodities such as 

oil, natural gas, synthetic liquid or 

gaseous fuels, and any refined products 

produced from them; and 

* * * * * 

■ 5. Amend § 2801.9 by revising 

paragraphs (a)(4) and (a)(7), and by 

adding paragraph (d) to read as follows: 

§ 2801.9 When do I need a grant? 

(a) * * * 

(4) Systems for generating, 

transmitting, and distributing 

electricity, including solar and wind 

energy development facilities and 

associated short-term actions such as 

site and geotechnical testing for solar 

and wind energy projects; 

* * * * * 

(7) Such other necessary 

transportation or other systems or 

facilities including any temporary or 

short-term surface disturbing activities 

associated with approved systems or 

facilities and which are in the public 

interest and which require rights-ofway. 

* * * * * 

(d) All systems, facilities, and related 

activities for solar and wind energy 

projects are specifically authorized as 

follows: 

(1) Wind energy site specific testing 

activities, including those with 

individual meteorological towers and 

instrumentation facilities, are 

authorized with a short-term right-ofway grant issued for 3 years or less; 

(2) Wind energy project area testing 

activities are authorized with a shortterm right-of-way grant for an initial 

term of 3 years or less with the option 

to renew for one additional 3-year 

period under § 2805.14(h) when the 

renewal application is accompanied by 

a wind energy development application; 

(3) Other associated actions not 

specifically included in § 2801.9(d)(1) 

and (2), such as geotechnical testing and 

other temporary land disturbing 

activities, are authorized with a shortterm right-of-way grant issued for 3 

years or less; 

(4) Solar and wind energy 

development facilities located outside 

designated leasing areas, except as 

provided for by § 2809.17(d)(2), are 

authorized with a right-of-way grant 

issued for up to 30 years (plus the initial 

partial year of issuance). An application 

for renewal of the grant may be 

submitted under § 2805.14(g); and 

(5) Solar and wind energy 

development facilities located inside 

designated leasing areas are authorized 

with a solar or wind energy 

development lease when issued 

competitively under subpart 2809. The 

term is fixed for 30 years (plus the 

initial partial year of issuance). An 

application for renewal of the lease may 

be submitted under § 2805.14(g). 

Subpart 2802—Lands Available for 

FLPMA Grants 

■ 6. In § 2802.11, revise the section 

heading and paragraph (a), revise the 

introductory language of paragraph (b), 

and revise paragraphs (b)(3), (b)(4), 

(b)(6), (b)(7), and (d) to read as follows: 

§ 2802.11 How does the BLM designate 

right-of-way corridors and designated 

leasing areas? 

(a) The BLM may determine the 

locations and boundaries of right-of-way 

corridors or designated leasing areas 

during the land use planning process 

described in part 1600 of this chapter. 


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During this process, the 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 the extent to which 

you may use public lands and resources 

for specific purposes. 

(b) When determining which lands 

may be suitable for right-of-way 

corridors or designated leasing areas, 

the factors the BLM considers include, 

but are not limited to, the following: 

* * * * * 

(3) Physical effects and constraints on 

corridor placement or leasing areas due 

to geology, hydrology, meteorology, soil, 

or land forms; 

(4) Costs of construction, operation, 

and maintenance and costs of modifying 

or relocating existing facilities in a 

proposed right-of-way corridor or 

designated leasing area (i.e., the 

economic efficiency of placing a rightof-way within a proposed corridor or 

providing a lease inside a designated 

leasing area); 

* * * * * 

(6) Potential health and safety hazards 

imposed on the public by facilities or 

activities located within the proposed 

right-of-way corridor or designated 

leasing area; 

(7) Social and economic impacts of 

the right-of-way corridor or designated 

leasing area on public land users, 

adjacent landowners, and other groups 

or individuals; 

* * * * * 

(d) The resource management plan or 

plan amendment may also identify areas 

where the BLM will not allow right-ofway corridors or designated leasing 

areas for environmental, safety, or other 

reasons. 

Subpart 2804—Applying for FLPMA 

Grants 

■ 7. Amend § 2804.10 by: 

■ a. Revising the introductory text of 

paragraph (a), and revising paragraphs 

(a)(2) and (a)(4); 

■ b. Redesignating paragraph (b) as 

paragraph (d); 

■ c. Adding paragraphs (b) and (c); and 

■ d. Revising newly redesignated 

paragraph (d). 

The revisions and additions read as 

follows: 

§ 2804.10 What should I do before I file my 

application? 

(a) Except as provided in paragraph 

(b) of this section, we encourage you to 

make an appointment for a preapplication meeting with the 

appropriate personnel in the BLM office 

having jurisdiction over the lands you 

seek to use. During the pre-application 

meeting, the BLM may: 

* * * * * 

(2) Determine whether the lands are 

located inside a designated or existing 

right-of-way corridor or a designated 

leasing area; 

* * * * * 

(4) Inform you of your financial 

obligations, such as processing and 

monitoring costs and rents. In addition 

to such costs, you are required to pay 

reasonable costs, and may elect to pay 

the actual costs, that are associated with 

the pre-application requirements 

identified in paragraph (b) of this 

section. 

(b) Before submitting an application 

for any solar energy or wind energy 

project, for any transmission line with a 

capacity of 100 kV or more, or for any 

pipeline 10 inches or more in diameter, 

you must do all of the following: 

(1) Schedule and hold an initial preapplication meeting with the BLM to 

discuss: 

(i) The general project proposal; 

(ii) The status of BLM land use 

planning for the lands involved; 

(iii) Potential siting issues or 

concerns; 

(iv) Potential environmental issues or 

concerns; 

(v) Potential alternative site locations; 

and 

(vi) The right-of-way application 

process. 

(2) Schedule and hold, in 

coordination with the BLM, one 

additional pre-application meeting with 

appropriate Federal and State agencies 

and tribal and local governments to 

facilitate coordination of potential 

environmental and siting issues and 

concerns. The BLM and you may agree 

mutually to schedule and hold 

additional pre-application meetings. 

(3) Initiate early discussions with any 

grazing permittees that may be affected 

by the proposed project in accordance 

with 43 CFR 4110.4–2(b). 

(c) In addition to all other preapplication, application, and holder 

requirements specified in this part, the 

BLM will accept an application under 

this subpart for any solar energy or wind 

energy development project, for any 

transmission line with a capacity of 100 

kV or more, or any pipeline 10 inches 

or more in diameter, only if: 

(1) The written proposal addresses 

known potential resource conflicts with 

sensitive resources and values that are 

the basis for special designations or 

protections, and includes applicantproposed measures to avoid, minimize, 

and mitigate such resource conflicts; 

(2) The proposal for solar energy or 

wind energy development is not sited 

on lands inside a designated leasing 

area, except as provided for by 

§ 2809.19; 

(3) The pre-application meetings 

described in § 2804.10(b)(1) and (2) have 

been completed to the BLM’s 

satisfaction; and 

(4) The proposal is accompanied by a 

general description of the proposed 

project and a schedule for the submittal 

of a plan of development (POD) 

conforming to the POD template at 

http://www.blm.gov. 

(d) Subject to § 2804.13, BLM may 

share any information you provide 

under paragraph (a) of this section with 

Federal, State, tribal, and local 

government agencies to ensure that: 

(1) These agencies are aware of any 

authorizations you may need from them; 

and 

(2) We initiate effective coordinated 

planning as soon as possible. 

■ 8. In § 2804.12: 

■ a. Revise the second sentence of the 

introductory text of paragraph (a); 

■ b. Remove each semicolon at the end 

of paragraphs (a)(1) through (a)(5) and 

add in each place a period; 

■ c. At the end of paragraph (a)(6), 

remove the phrase ‘‘; and’’ and add in 

its place a period; and 

■ d. Add new paragraphs (a)(8) and 

(a)(9). 

The revisions and additions read as 

follows: 

§ 2804.12 What information must I submit 

in my application? 

(a) * * * Your completed application 

must include all of the following: 

* * * * * 

(8) A nonrefundable application filing 

fee for solar and wind energy 

applications. The fee is $15 per acre for 

solar and wind energy development 

applications and $2 per acre for wind 

energy project area and site specific 

testing applications. The BLM will 

adjust the application filing fee at least 

once every 10 years by the average 

annual change in the Implicit Price 

Deflator, Gross Domestic Product (IPD– 

GDP) for the preceding 10-year period 

and round it to the nearest one-half 

dollar. This 10-year average will be 

adjusted at the same time as the Per 

Acre Rent Schedule for linear rights-ofway under § 2806.22. 

(9) A schedule for the submittal of a 

POD conforming to the POD template at 

http://www.blm.gov, should the BLM 

require you to submit a POD under 

§ 2804.25(b). 

* * * * * 

■ 9. In § 2804.14, revise paragraphs (a), 

(b), and (c) to read as follows: 


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59068 Federal Register / Vol. 79, No. 189 / Tuesday, September 30, 2014 / Proposed Rules 

§ 2804.14 What is the processing fee for a 

grant application? 

(a) Unless you are exempt under 

§ 2804.16, you must pay a fee to the 

BLM for the reasonable costs of 

processing your application. Subject to 

applicable laws and regulations, if 

processing your application involves 

Federal agencies other than the BLM, 

your fee may also include the 

reasonable costs estimated to be 

incurred by those Federal agencies. 

Instead of paying the BLM a fee for the 

reasonable costs incurred by other 

Federal agencies in processing your 

application, you may pay other Federal 

agencies directly for such costs. 

Reasonable costs are those costs as 

defined in Section 304(b) of FLPMA (43 

U.S.C. 1734(b)). The fees for Processing 

Categories 1 through 4 (see paragraph 

(b) of this section) are one-time fees and 

are not refundable. The fees are 

categorized based on an estimate of the 

amount of time that the Federal 

Government will expend to process 

your application and issue a decision 

granting or denying the application. 

(b) There is no processing fee if the 

Federal Government’s work is estimated 

to take 1 hour or less. Processing fees 

are based on categories. The BLM will 

update the processing fees for Categories 

1 through 4 in the schedule each 

calendar year, based on the previous 

year’s change in the IPD–GDP, as 

measured second quarter to second 

quarter rounded to the nearest dollar. 

The BLM will update Category 5 

processing fees as specified in the 

Master Agreement. These categories and 

the estimated range of Federal work 

hours for each category are: 

PROCESSING CATEGORIES

Processing category Federal work hours involved 

(1) Applications for new grants, assignments, renewals, and amendments to existing grants ........................ Estimated Federal work hours are 

>1 ≤ 8. 

(2) Applications for new grants, assignments, renewals, and amendments to existing grants ........................ Estimated Federal work hours are 

> 8 ≤ 24. 

(3) Applications for new grants, assignments, renewals, and amendments to existing grants ........................ Estimated Federal work hours are 

> 24 ≤ 36. 

(4) Applications for new grants, assignments, renewals, and amendments to existing grants ........................ Estimated Federal work hours are 

> 36 ≤ 50. 

(5) Master agreements ....................................................................................................................................... Varies. 

(6) Applications for new grants, assignments, renewals, and amendments to existing grants ........................ Estimated Federal work hours are 

> 50. 

(c) You may obtain a copy of the 

current year’s processing fee schedule 

from any BLM state, district, or field 

office or by writing: U.S. Department of 

the Interior, Bureau of Land 

Management, 20 M Street, SE., Room 

2134LM, Washington, DC 20003. The 

BLM also posts the current processing 

fee schedule at http://www.blm.gov. 

* * * * * 

■ 10. Amend § 2804.18 by redesignating 

paragraphs (a)(6) through (a)(8) as 

paragraphs (a)(7) through (a)(9) and 

adding new paragraph (a)(6). The 

addition reads as follows: 

§ 2804.18 What provisions do Master 

Agreements contain and what are their 

limitations? 

(a) * * * 

(6) Describes existing agreements 

between the BLM and other Federal 

agencies for cost reimbursement; 

* * * * * 

■ 11. Amend § 2804.19 by revising 

paragraph (a) and adding new paragraph 

(e) to read as follows: 

§ 2804.19 How will BLM process my 

Processing Category 6 application? 

(a) For Processing Category 6 

applications, you and the BLM must 

enter into a written agreement that 

describes how the BLM will process 

your application. The final agreement 

consists of a work plan, a financial plan, 

and a description of any existing 

agreements you have with other Federal 

agencies for cost reimbursement 

associated with your application. 

* * * * * 

(e) We may collect reimbursement to 

the U.S. for reasonable costs for 

processing applications and other 

documents under this part relating to 

the public lands. 

■ 12. Amend § 2804.20 by revising 

paragraphs (a)(1) and (a)(5), 

redesignating paragraph (a)(6) as 

paragraph (a)(8), and adding new 

paragraphs (a)(6) and (a)(7). The 

revisions and additions read as follows: 

§ 2804.20 How does BLM determine 

reasonable costs for Processing Category 6 

or Monitoring Category 6 applications? 

* * * * * 

(a) * * * 

(1) Actual costs to the Federal 

Government (exclusive of management 

overhead costs) of processing your 

application and of monitoring 

construction, operation, maintenance, 

and termination of a facility authorized 

by the right-of-way grant; 

* * * * * 

(5) Any tangible improvements, such 

as roads, trails, and recreation facilities, 

which provide significant public service 

and are expected in connection with 

constructing and operating the facility; 

(6) Existing agreements between the 

BLM and other Federal agencies for cost 

reimbursement associated with such 

application; 

(7) Costs associated with the preapplication requirements applicable to 

your project under § 2804.10; and 

* * * * * 

■ 13. Amend § 2804.23 by revising the 

section heading and paragraphs (a)(1) 

and (c) and adding new paragraphs (d) 

and (e) to read as follows: 

§ 2804.23 When will the BLM use a 

competitive process? 

(a) * * * 

(1) Processing Category 1 through 4. 

You must reimburse the Federal 

Government for processing costs as if 

the other application or applications 

had not been filed. 

* * * * * 

(c) If we determine that competition 

exists, we will describe the procedures 

for a competitive bid through a bid 

announcement in a newspaper of 

general circulation in the area affected 

by the potential right-of-way and by a 

notice in the Federal Register. We may 

also provide notice by other methods, 

including the Internet. We may offer 

lands through a competitive process on 

our own initiative. 

(d) Competitive process for solar and 

wind energy development outside 

designated leasing areas. Lands outside 

designated leasing areas may be made 

available for solar and wind energy 

applications through a competitive 


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application process established by the 

BLM under § 2804.30. 

(e) Competitive process for solar and 

wind energy development inside 

designated leasing areas. Lands inside 

designated leasing areas may be offered 

competitively under subpart 2809. 

■ 14. Amend § 2804.24 by revising 

paragraph (a), redesignating paragraph 

(b) as paragraph (c), and adding new 

paragraph (b) to read as follows: 

§ 2804.24 Do I always have to submit an 

application for a grant using Standard Form 

299? 

* * * * * 

(a) The BLM offers lands 

competitively under § 2804.23(c) and 

you have already submitted an 

application for the facility or system; 

(b) The BLM offers lands for 

competitive lease under subpart 2809 of 

this part; or 

* * * * * 

■ 15. Amend § 2804.25 by revising 

paragraphs (b) and (d) to read as 

follows: 

§ 2804.25 How will BLM process my 

application? 

* * * * * 

(b) The BLM may require you to 

submit additional information necessary 

to process the application. This 

information may include a detailed 

construction, operation, rehabilitation, 

and environmental protection plan (i.e., 

a POD), and any needed cultural 

resource surveys or inventories for 

threatened or endangered species. If the 

BLM needs more information, the BLM 

will identify this information in a 

written deficiency notice asking you to 

provide the additional information 

within a specified period of time. The 

BLM will notify you of any other grant 

applications which involve all or part of 

the lands for which you applied. The 

BLM will not process your application 

if you have any trespass action pending 

against you for any activity on BLMadministered lands (see § 2808.12) or 

have any unpaid debts owed to the 

Federal Government. Except as 

otherwise provided in this paragraph, 

the only applications the BLM would 

process to resolve the trespass would be 

for a right-of-way as authorized in this 

part, or a lease or permit under the 

regulations found at 43 CFR part 2920, 

but only after outstanding debts are 

paid. 

* * * * * 

(d) In processing an application, the 

BLM will: 

(1) Hold public meetings if sufficient 

public interest exists to warrant their 

time and expense. The BLM will 

publish a notice in the Federal Register, 

a newspaper of general circulation in 

the vicinity of the lands involved in the 

area affected by the potential right-ofway, or use other notification methods 

including the Internet, to announce in 

advance any public hearings or 

meetings. 

(2) If your application is for solar or 

wind energy development: 

(i) Hold a public meeting in the area 

affected by the potential right-of-way; 

(ii) Apply screening criteria to 

prioritize processing applications with 

lesser resource conflicts priority over 

applications with greater resource 

conflicts, and categorize screened 

applications according to the criteria 

listed in § 2804.35; and 

(iii) Evaluate the application based on 

the information provided by the 

applicant and the input of Federal, 

State, and local government agencies, 

tribes, and comments received in preapplication meetings held under 

§ 2804.10(b) and the public meeting 

held under § 2804.25(d)(2)(i). Based on 

this evaluation, the BLM will either 

deny your application or continue 

processing it. 

(3) Determine whether the POD 

schedule submitted with your 

application for solar or wind energy 

development, transmission line with a 

capacity of 100 kV or more, or pipeline 

10 inches or more in diameter meets the 

development schedule and other 

requirements described in 

§§ 2804.10(c)(4) and 2804.12(a)(9), or 

whether the applicant must supply 

additional information; 

(4) Complete a National 

Environmental Policy Act (NEPA) 

analysis for the application or approve 

a NEPA analysis previously completed 

for the application, as required by 40 

CFR parts 1500 through 1508; 

(5) Determine whether your proposed 

use complies with applicable Federal 

and state laws; 

(6) If your application is for a road, 

determine whether it is in the public 

interest to require you to grant the U.S. 

an equivalent authorization across lands 

that you own; 

(7) Consult, as necessary, on a 

government to government basis with 

tribes and other governmental entities; 

and 

(8) Take any other action necessary to 

fully evaluate and decide whether to 

approve or deny your application. 

* * * * * 

■ 16. Amend § 2804.26 by revising 

paragraph (a)(5), redesignating 

paragraph (a)(6) as paragraph (a)(8), and 

adding new paragraphs (a)(6) and (a)(7). 

The revisions read as follows: 

§ 2804.26 Under what circumstances may 

BLM deny my application? 

(a) * * * 

(5) You do not have or cannot 

demonstrate the technical or financial 

capability to construct the project or 

operate facilities within the right-ofway. 

(i) Applicants must have or be able to 

demonstrate technical and financial 

capability to construct, operate, 

maintain, and terminate a project 

throughout the application process and 

authorization period. You can 

demonstrate your financial and 

technical capability to construct, 

operate, maintain, and terminate a 

project by: 

(A) Documenting any previous 

successful experience in construction, 

operation, and maintenance of similar 

facilities on either public or non-public 

lands; 

(B) Providing information on the 

availability of sufficient capitalization to 

carry out development, including the 

preliminary study stage of the project 

and the environmental review and 

clearance process; or 

(C) Providing written copies of 

conditional commitments of Federal 

and other loan guarantees; confirmed 

power purchase agreements; 

engineering, procurement, and 

construction contracts; and supply 

contracts with credible third-party 

vendors for the manufacture or supply 

of key components for the project 

facilities. 

(ii) Failure to sustain technical and 

financial capability is grounds for 

denying the application or terminating 

the authorization; 

(6) The PODs required by 

§§ 2804.10(c)(4) and 2804.12(a)(9) do 

not meet the development schedule or 

other requirements in the POD template 

and the applicant is unable to 

demonstrate why the POD should be 

approved; 

(7) The BLM’s evaluation of your solar 

or wind application made under 

§ 2804.25(d)(2)(iii) provides a basis for a 

denial; or 

* * * * * 

■ 17. In § 2804.27, revise the 

introductory text to read as follows: 

§ 2804.27 What fees do I owe if BLM 

denies my application or if I withdraw my 

application? 

If the BLM denies your application or 

you withdraw it, you must still pay any 

pre-application costs under 

§ 2804.10(a)(4), any application filing 

fees under § 2804.12(a)(8), and any 

processing fee set forth at § 2804.14, 

unless you have a Processing Category 


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5 or 6 application. Then, the following 

conditions apply: 

* * * * * 

■ 18. Add § 2804.30 to subpart 2804 to 

read as follows: 

§ 2804.30 What is the competitive process 

for solar or wind energy development for 

lands outside of designated leasing areas? 

(a) Available land. The BLM may offer 

through a competitive process any land 

not inside a designated leasing area and 

open to right-of-way applications under 

§ 2802.10. 

(b) Variety of competitive procedures 

available. The BLM may use any type of 

competitive process or procedure to 

conduct its competitive offer and any 

method, including the use of the 

Internet, to conduct the actual auction 

or competitive bid procedure. Possible 

bid procedures could include, but are 

not limited to: Sealed bidding, oral 

auctions, modified competitive bidding, 

electronic bidding, or any combination 

thereof. 

(c) Competitive offer. The BLM may 

identify a parcel for competitive offer if 

competition exists or may include land 

in a competitive offer on its own 

initiative. 

(d) Notice of competitive offer. The 

BLM will publish a notice in a 

newspaper of general circulation in the 

area affected by the potential right-ofway, use other notification methods, 

including the Internet, and publish a 

notice in the Federal Register at least 30 

days prior to the competitive offer. The 

notice would explain that the successful 

bidder would become the preferred 

applicant (see paragraph (g) of this 

section) and must apply for a grant. The 

newspaper and Federal Register notices 

must also include: 

(1) The date, time, and location, if 

any, of the competitive offer; 

(2) The legal land description of the 

parcel to be offered; 

(3) The bidding methodology and 

procedures to be used in conducting the 

competitive offer, which may include 

any of the competitive procedures 

identified in § 2804.30(b); 

(4) The minimum bid required (see 

§ 2804.30(e)(2)); 

(5) The qualification requirements of 

potential bidders (see § 2803.10); and 

(6) The requirements for the 

successful bidder to submit a schedule 

for the submittal of a POD for the lands 

involved in the competitive offer (see 

§ 2804.12(a)(9)). 

(e) Bidding—(1) Bid submissions. The 

BLM will accept your bid only if it 

includes payment for the minimum bid 

and at least 20 percent of the bonus bid. 

(2) Minimum bid. The minimum bid 

is not prorated among all bidders, but 

paid entirely by the successful bidder. 

The minimum bid consists of: 

(i) The administrative costs incurred 

by the BLM and other Federal agencies 

in preparing for and conducting the 

competitive offer, including required 

environmental reviews; and 

(ii) An amount determined by the 

authorizing officer and disclosed in the 

notice of competitive offer. This amount 

will be based on known or potential 

values of the parcel. In setting this 

amount, the BLM will consider factors 

that include, but are not limited to the 

acreage rent, megawatt capacity fee, and 

mitigation costs. 

(3) Bonus bid. The bonus bid consists 

of any dollar amount that a bidder 

wishes to bid in addition to the 

minimum bid. 

(4) If you are not the successful 

bidder, as defined in paragraph (f) of 

this section, the BLM will refund your 

bid. 

(f) Successful bidder. The successful 

bidder is determined by the highest total 

bid. If you are the successful bidder, you 

become the preferred applicant only if, 

within 15 calendar days after the day of 

the offer, you submit the balance of the 

bonus bid to the BLM office conducting 

the offer. You must make payments by 

personal check, cashier’s check, 

certified check, bank draft, money order, 

or by other means deemed acceptable by 

the BLM, payable to the ‘‘Department of 

the Interior—Bureau of Land 

Management.’’ 

(g) Preferred applicant. The preferred 

applicant is the only applicant that may 

apply for the parcel identified in the 

offer. The preferred applicant may apply 

for a wind energy project area testing 

grant, a wind energy site specific testing 

grant, or a solar or wind energy 

development grant. Grant approval is 

not guaranteed by winning the subject 

bid and is solely at the BLM’s 

discretion. 

(h) Reservations. (1) The BLM may 

reject bids regardless of the amount 

offered. If the BLM rejects your bid 

under this provision, you will be 

notified in writing and such notice will 

include the reasons for the rejection and 

what refunds to which you are entitled. 

(2) The BLM may make the next 

highest bidder the preferred applicant if 

the first successful bidder fails to satisfy 

the requirements under paragraph (f) of 

this section. 

(3) If the BLM is unable to determine 

the successful bidder, such as in the 

case of a tie, the BLM may re-offer the 

lands competitively to the tied bidders, 

or to all bidders. 

(4) If lands offered under this section 

receive no bids the BLM may: 

(i) Re-offer the lands through the 

competitive process under this section; 

or 

(ii) Make the lands available through 

the non-competitive application process 

found in subparts 2803, 2804, and 2805 

of this part, if the BLM determines that 

doing so is in the public interest. 

■ 19. Add § 2804.35 to subpart 2804 to 

read as follows: 

§ 2804.35 How will the BLM prioritize my 

solar or wind energy application? 

The BLM will prioritize your 

application by placing it into one of 

three categories and may re-categorize 

your application based on new 

information received through surveys, 

public meetings, or other data 

collection, or after any changes to the 

application. The BLM will categorize 

your application based on the following 

screening criteria. 

(a) High-priority applications are 

given processing priority over mediumand low-priority applications, and may 

include lands that meet the following 

criteria: 

(1) Lands specifically identified for 

solar or wind energy development, other 

than designated leasing areas; 

(2) Previously disturbed sites or areas 

adjacent to previously disturbed or 

developed sites; 

(3) Lands currently designated as 

Visual Resource Management Class IV; 

or 

(4) Lands identified as suitable for 

disposal in BLM land use plans. 

(b) Medium-priority applications are 

given priority over low-priority 

applications and may include lands that 

meet the following criteria: 

(1) BLM special management areas 

that provide for limited development, 

including recreation sites and facilities; 

(2) Areas where a project may 

adversely affect conservation lands, to 

include lands with wilderness 

characteristics that have been identified 

in an updated wilderness characteristics 

inventory; 

(3) Right-of-way avoidance areas; 

(4) Areas where project development 

may adversely affect resources and 

properties listed nationally such as the 

National Register of Historic Places, 

National Natural Landmarks, or 

National Historic Landmarks; 

(5) Sensitive habitat areas, including 

important eagle use areas, priority sage 

grouse habitat, riparian areas, or areas of 

importance for Federal or State sensitive 

species; 

(6) Lands currently designated as 

Visual Resource Management Class III; 

(7) Department of Defense operating 

areas with land use or operational 

conflicts; or 


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(8) Projects with proposed 

groundwater uses within groundwater 

basins that have been allocated by state 

water resource agencies. 

(c) Low-priority applications may not 

be feasible to authorize. These 

applications may include lands that 

meet the following criteria: 

(1) Lands near or adjacent to lands 

designated by Congress, the President, 

or the Secretary for the protection of 

sensitive viewsheds, resources, and 

values (e.g., units of the National Park 

System, Fish and Wildlife Service 

Refuge System, some National Forest 

System units, and the BLM National 

Landscape Conservation System), which 

may be adversely affected by 

development; 

(2) Lands near or adjacent to Wild, 

Scenic, and Recreational Rivers and 

river segments determined suitable for 

Wild or Scenic River status, if project 

development may have significant 

adverse effects on sensitive viewsheds, 

resources, and values; 

(3) Designated critical habitat for 

federally threatened or endangered 

species, if project development is likely 

to result in the destruction or adverse 

modification of that critical habitat; 

(4) Lands currently designated as 

Visual Resource Management Class I or 

Class II; 

(5) Right-of-way exclusion areas; or 

(6) Lands currently designated as no 

surface occupancy for oil and gas 

development in BLM land use plans. 

Subpart 2805—Terms and Conditions 

of Grants 

■ 20. Amend § 2805.10 as follows: 

■ a. Revise the section heading; 

■ b. Revise paragraph (a); 

■ c. Redesignate paragraph (b) and (c) as 

paragraphs (c) and (d) respectively; and 

■ d. Add new paragraph (b). 

The revisions and additions read as 

follows: 

§ 2805.10 How will I know whether the 

BLM has approved or denied my application 

or if my bid for a solar or wind energy 

development grant or lease is successful or 

unsuccessful? 

(a) The BLM will send you a written 

response when it has made a decision 

on your application or if you are the 

successful bidder for a solar or wind 

energy development grant or lease. If we 

approve your application, we will send 

you an unsigned grant for your review 

and signature. If you are the successful 

bidder for a solar or wind energy lease 

inside a designated leasing area under 

§ 2809.15, we will send you an unsigned 

lease for your review and signature. If 

your bid is unsuccessful, it will be 

refunded under §§ 2804.30(e)(4) or 

2809.14(d) and you will receive written 

notice from us. 

(b) Your unsigned grant or lease 

document: 

(1) Will include any terms, 

conditions, and stipulations that we 

determine to be in the public interest, 

such as modifying your proposed use or 

changing the route or location of the 

facilities; 

(2) May include terms that prevent 

your use of the right-of-way until you 

have an approved Plan of Development 

and BLM has issued a Notice to 

Proceed; and 

(3) Will impose a specific term for the 

grant or lease. Each grant or lease that 

we issue for 20 or more years will 

contain a provision requiring periodic 

review at the end of the twentieth year 

and subsequently at 10-year intervals. 

We may change the terms and 

conditions of the grant or lease, 

including leases issued under subpart 

2809, as a result of these reviews in 

accordance with § 2805.15(e). 

* * * * * 

■ 21. Amend § 2805.11 by redesignating 

paragraph (b)(2) as paragraph (b)(3), 

adding new paragraph (b)(2), and 

revising newly redesignated paragraph 

(b)(3)to read as follows: 

§ 2805.11 What does a grant contain? 

* * * * * 

(b) * * * 

(2) Specific terms for solar and wind 

energy grants and leases are as follows: 

(i) For a wind energy site-specific 

testing grant, the term is 3 years or less, 

without the option of renewal; 

(ii) For a wind energy project area 

testing grant, the initial term is 3 years 

or less, with the option to renew for one 

additional 3-year period when the 

renewal application is also 

accompanied by a wind energy 

development application and a POD as 

required by § 2804.10(c)(4); 

(iii) For a short-term grant for all other 

associated actions not specifically 

included in paragraphs (b)(2)(i) and (ii) 

of this section, such as geotechnical 

testing and other temporary land 

disturbing activities, the term is 3 years 

or less; 

(iv) For solar and wind energy 

development grants located outside of 

designated leasing areas, the term is for 

up to 30 years (plus the initial partial 

year of issuance) with adjustable terms 

and conditions. The grantee may submit 

an application for renewal under 

§ 2805.14(g); and 

(v) For solar and wind energy 

development leases located inside 

designated leasing areas, the term is 

fixed for 30 years (plus the initial partial 

year of issuance). The lessee may submit 

an application for renewal under 

§ 2805.14(g). 

(3) All grants and leases, except those 

issued for a term of 3 years or less and 

those issued in perpetuity, will expire 

on December 31 of the final year of the 

grant or lease. For grants and leases with 

terms greater than 3 years, the actual 

term includes the number of full years 

specified, plus the initial partial year, if 

any. 

* * * * * 

■ 22. Revise § 2805.12 to read as 

follows: 

§ 2805.12 What terms and conditions must 

I comply with? 

(a) By accepting a grant or lease, you 

agree to comply with and be bound by 

the following terms and conditions. 

During construction, operation, 

maintenance, and termination of the 

project you must: 

(1) To the extent practicable, comply 

with all existing and subsequently 

enacted, issued, or amended Federal 

laws and regulations and State laws and 

regulations applicable to the authorized 

use; 

(2) Rebuild and repair roads, fences, 

and established trails destroyed or 

damaged by the project; 

(3) Build and maintain suitable 

crossings for existing roads and 

significant trails that intersect the 

project; 

(4) Do everything reasonable to 

prevent and suppress wildfires on or in 

the immediate vicinity of the right-ofway area; 

(5) Not discriminate against any 

employee or applicant for employment 

during any stage of the project because 

of race, creed, color, sex, sexual 

orientation, or national origin. You must 

also require subcontractors to not 

discriminate; 

(6) Pay monitoring fees and rent 

described in § 2805.16 and subpart 

2806; 

(7) Assume full liability if third 

parties are injured or damages occur to 

property on or near the right-of-way (see 

§ 2807.12); 

(8) Comply with project-specific 

terms, conditions, and stipulations, 

including requirements to: 

(i) Restore, revegetate, and curtail 

erosion or conduct any other 

rehabilitation measure the BLM 

determines necessary; 

(ii) Ensure that activities in 

connection with the grant comply with 

air and water quality standards or 

related facility siting standards 

contained in applicable Federal or State 

law or regulations; 

(iii) Control or prevent damage to: 


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(A) Scenic, aesthetic, cultural, and 

environmental values, including fish 

and wildlife habitat; 

(B) Public and private property; and 

(C) Public health and safety; 

(iv) Protect the interests of individuals 

living in the general area who rely on 

the area for subsistence uses as that term 

is used in Title VIII of Alaska National 

Interest Lands Conservation Act 

(ANILCA) (16 U.S.C. 3111 et seq.); 

(v) Ensure that you construct, operate, 

maintain, and terminate the facilities on 

the lands in the right-of-way in a 

manner consistent with the grant or 

lease, including the approved POD, if 

one was required; 

(vi) When the State standards are 

more stringent than Federal standards, 

comply with State standards for public 

health and safety, environmental 

protection, and siting, constructing, 

operating, and maintaining any facilities 

and improvements on the right-of-way; 

and 

(vii) Grant the BLM an equivalent 

authorization for an access road across 

your land if the BLM determines that a 

reciprocal authorization is needed in the 

public interest and the authorization the 

BLM issues to you is also for road 

access; 

(9) Immediately notify all Federal, 

State, tribal, and local agencies of any 

release or discharge of hazardous 

material reportable to such entity under 

applicable law. You must also notify the 

BLM at the same time and send the BLM 

a copy of any written notification you 

prepared; 

(10) Not dispose of or store hazardous 

material on your right-of-way, except as 

provided by the terms, conditions, and 

stipulations of your grant; 

(11) Certify your compliance with all 

requirements of the Emergency Planning 

and Community Right-to-Know Act of 

1986, (42 U.S.C. 11001 et seq.), when 

you receive, assign, renew, amend, or 

terminate your grant; 

(12) Control and remove any release 

or discharge of hazardous material on or 

near the right-of-way arising in 

connection with your use and 

occupancy of the right-of-way, whether 

or not the release or discharge is 

authorized under the grant. You must 

also remediate and restore lands and 

resources affected by the release or 

discharge to the BLM’s satisfaction and 

to the satisfaction of any other Federal, 

State, tribal, or local agency having 

jurisdiction over the land, resource, or 

hazardous material; 

(13) Comply with all liability and 

indemnification provisions and 

stipulations in the grant; 

(14) As the BLM directs, provide 

diagrams or maps showing the location 

of any constructed facility; 

(15) The BLM may require you to 

provide, or give access to, any pertinent 

environmental, technical, and financial 

records, reports, and other information, 

such as Power Purchase and 

Interconnection Agreements or the 

production and sale data of electricity 

generated from the approved facilities 

on public land. The BLM may use this 

and similar information for the purpose 

of monitoring your authorization and for 

periodic evaluation of financial 

obligations under the authorization, as 

appropriate. Any records the BLM 

obtains will be made available to the 

public for inspection and duplication 

under the Freedom of Information Act. 

Any information marked confidential or 

proprietary will be kept confidential to 

the extent allowed by law. Failure to 

comply with such requirements may, at 

the discretion of the BLM, result in 

suspension or termination of the rightof-way authorization; and 

(16) Comply with all other 

stipulations that the BLM may require. 

(b) You must comply with the 

bonding requirements under § 2805.20. 

(c) By accepting a grant or lease for 

solar or wind energy development, you 

also agree to comply with and be bound 

by the following terms and conditions. 

You must: 

(1) Not begin any ground disturbing 

activities until the BLM issues a Notice 

to Proceed (see § 2807.10) or written 

approval to proceed with ground 

disturbing activities; 

(2) Complete construction within the 

timeframes in the approved POD, but no 

later than 24 months after the start of 

construction, unless the project has 

been approved for staged development; 

(3) If an approved POD provides for 

staged development and not otherwise 

agreed to by BLM: 

(i) Begin construction of the initial 

phase of development within 12 months 

after issuance of the Notice to Proceed, 

but no later than 24 months after the 

effective date of the right-of-way 

authorization; 

(ii) Begin construction of each stage of 

development (following the first) within 

3 years of the start of construction of the 

previous stage of development, and 

complete construction no later than 24 

months after the start of construction for 

that stage; and 

(iii) Have no more than 3 

development stages, unless the BLM 

approves more development stages in 

advance. 

(4) Maintain all onsite electrical 

generation equipment and facilities in 

accordance with the design standards in 

the approved POD; 

(5) Repair, place into service, or 

remove from the site damaged or 

abandoned facilities that have been 

inoperative for any continuous period of 

3 months that present an unnecessary 

hazard to the public lands. You must 

take appropriate remedial action within 

30 days after receipt of a written 

noncompliance notice, unless you have 

been provided an extension of time by 

the BLM. Alternatively, you must show 

good cause for any delays in repairs, 

use, or removal; estimate when 

corrective action will be completed; 

provide evidence of diligent operation 

of the facilities; and submit a written 

request for an extension of the 30-day 

deadline. If you do not comply with this 

provision, the BLM may suspend or 

terminate the authorization under 

§§ 2807.17 through 2807.19; and 

(6) Comply with the diligent 

development provisions of the 

authorization or the BLM may suspend 

or terminate your grant or lease under 

§ 2807.17. Before suspending or 

terminating the authorization, the BLM 

will send you a notice that gives you a 

reasonable opportunity to correct any 

noncompliance or to start or resume use 

of the right-of-way (see § 2807.18). In 

response to this notice, you must: 

(i) Provide reasonable justification for 

any delays in construction (for example, 

delays in equipment delivery, legal 

challenges, and acts of God); 

(ii) Provide the anticipated date of 

completion of construction and 

evidence of progress toward the start or 

resumption of construction; and 

(iii) Submit a written request under 

§ 2807.11(d) for extension of the 

timelines in the approved POD. If you 

do not comply with the requirements of 

§ 2804.12(c)(7), the BLM may deny your 

request for an extension of the timelines 

in the approved POD. 

(7) In addition to the RCE 

requirements of § 2805.20(a)(5) for a 

grant, the bond secured for a grant or 

lease must cover cultural resource and 

Indian cultural resource identification, 

protection and mitigation. 

(d) For wind energy site or project 

testing grants: 

(1) You must install all monitoring 

facilities within 12 months after the 

effective date of the grant or other 

authorization. If monitoring facilities 

under a site testing and monitoring 

right-of-way authorization have not 

been installed within 12 months after 

the effective date of the authorization or 

consistent with the timeframe of the 

approved POD, you must show good 

cause for and the nature of any delay, 

the anticipated date of installation of 


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facilities, and evidence of progress 

toward site monitoring activities; 

(2) You must maintain all onsite 

equipment and facilities in accordance 

with the approved design standards; 

(3) You must repair, place into 

service, or remove from the site 

damaged or abandoned facilities that 

have been inoperative for any 

continuous period of 3 months that 

present an unnecessary hazard to the 

public lands; and 

(4) If you do not comply with the due 

diligence terms and conditions of either 

the wind site testing and monitoring 

authorization or the wind energy 

development authorization, the BLM 

may terminate your authorization under 

§ 2807.17. 

■ 23. Amend § 2805.14 by removing 

‘‘and’’ from the end of paragraph (e), 

removing the period from the end of 

paragraph (f) and adding ‘‘; and’’ in its 

place, and adding paragraphs (g) and (h) 

to read as follows: 

§ 2805.14 What rights does a grant 

convey? 

* * * * * 

(g) Apply to renew your solar or wind 

energy development grant or lease, 

under § 2807.22; and 

(h) Apply to renew your wind energy 

project area testing grant for one 

additional term of 3 years or less when 

the renewal application also includes a 

wind energy development application. 

■ 24. In § 2805.15, revise the first 

sentence of paragraph (b) to read as 

follows: 

§ 2805.15 What rights does the United 

States retain? 

* * * * * 

(b) Require common use of your rightof-way, including facilities (see 

§ 2805.14(b)), subsurface and air space, 

and authorize use of the right-of-way for 

compatible uses. * * * 

* * * * * 

■ 25. Revise § 2805.16 to read as 

follows: 

§ 2805.16 If I hold a grant, what monitoring 

fees must I pay? 

(a) You must pay a fee to the BLM for 

the reasonable costs the Federal 

Government incurs in monitoring the 

construction, operation, maintenance, 

and termination of the project and 

protection and rehabilitation of the 

public lands your grant covers. Instead 

of paying the BLM a fee for the 

reasonable costs incurred by other 

Federal agencies in monitoring your 

grant, you may pay the other Federal 

agencies directly for such costs. The 

BLM will annually adjust the Category 

1 through 4 monitoring fees in the 

manner described at § 2804.14(b). The 

BLM will update Category 5 monitoring 

fees as specified in the Master 

Agreement. The BLM categorizes the 

monitoring fees based on the estimated 

number of work hours necessary to 

monitor your grant. Category 1 through 

4 monitoring fees are one-time fees and 

are not refundable. The monitoring 

categories and work hours are as 

follows: 

MONITORING CATEGORIES

Monitoring category Federal work hours involved 

(1) Applications for new grants, assignments, renewals, and amendments to existing grants ........................ Estimated Federal work hours are 

> 1 ≤ 8. 

(2) Applications for new grants, assignments, renewals, and amendments to existing grants ........................ Estimated Federal work hours are 

> 8 ≤ 24. 

(3) Applications for new grants, assignments, renewals, and amendments to existing grants ........................ Estimated Federal work hours are 

> 24 ≤ 36. 

(4) Applications for new grants, assignments, renewals, and amendments to existing grants ........................ Estimated Federal work hours > 36 

≤ 50. 

(5) Master Agreements ...................................................................................................................................... Varies. 

(6) Applications for new grants, assignments, renewals, and amendments to existing grants ........................ Estimated Federal work hours are 

> 50. 

(b) The monitoring cost schedule is 

available from any BLM state, district, 

or field office or by writing: U.S. 

Department of the Interior, Bureau of 

Land Management, 20 M Street SE., 

Room 2134LM, Washington, DC 20003. 

The BLM also posts the current 

schedule at http://www.blm.gov. 

■ 26. Add § 2805.20 to subpart 2805 to 

read as follows: 

§ 2805.20 Bonding requirements. 

If you hold a grant or lease under this 

part, you must comply with the 

following bonding requirements. 

(a) The BLM may require that you 

obtain, or certify that you have obtained, 

a performance and reclamation bond or 

other acceptable bond instrument to 

cover any losses, damages, or injury to 

human health, the environment, and 

property in connection with your use 

and occupancy of the right-of-way, 

including terminating the grant, and to 

secure all obligations imposed by the 

grant and applicable laws and 

regulations. If you plan to use hazardous 

materials in the operation of your grant, 

you must provide a bond that covers 

liability for damages or injuries 

resulting from releases or discharges of 

hazardous materials. The BLM may 

require a new bond, an increase or 

decrease in the value of an existing 

bond, or other acceptable security at any 

time during the term of the grant or 

lease. 

(1) The BLM must be listed as an 

additionally named insured on the bond 

instrument if a State regulatory 

authority requires a bond to cover some 

portion of environmental liabilities, 

such as hazardous material damages or 

releases, reclamation, or other 

requirements for the project. The bond 

must: 

(i) Be redeemable by the BLM; 

(ii) Be held or approved by a State 

agency for the same reclamation 

requirements as specified by our rightof-way authorization; and 

(iii) Provide the same or greater 

financial guarantee that we require for 

the portion of environmental liabilities 

covered by the State’s bond. 

(2) Bond acceptance. The BLM 

authorized officer must review and 

approve all bonds, including any State 

bonds, prior to acceptance, and at the 

time of any right-of-way assignment, 

amendment, or renewal. 

(3) Bond amount. Unless you hold a 

solar or wind energy lease under 

subpart 2809, the bond amount will be 

determined based on the preparation of 

a RCE. We may require you to prepare 

and submit an acceptable RCE. The 

estimate must include our cost to 

administer a reclamation contract. 

(4) You must post a bond on or before 

the deadline that we give you. 

(5) Bond components that must be 

addressed when determining the RCE 

amount include, but are not limited to: 


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(i) Environmental liabilities such as 

use of hazardous materials waste and 

hazardous substances, herbicide use, the 

use of petroleum-based fluids, and dust 

control or soil stabilization materials; 

(ii) The decommissioning, removal, 

and proper disposal, as appropriate, of 

any improvements and facilities; and 

(iii) Interim and final reclamation, revegetation, recontouring, and soil 

stabilization. This component must 

address the potential for flood events 

and downstream sedimentation from the 

site that may result in offsite impacts. 

(6) You may ask us to accept a 

replacement performance and 

reclamation bond at any time after the 

approval of the initial bond. We will 

review the replacement bond for 

adequacy. A surety company is not 

released from obligations that accrued 

while the surety bond was in effect 

unless the replacement bond covers 

those obligations to our satisfaction. 

(7) You must notify us that 

reclamation has occurred and you may 

request that the BLM reevaluate your 

bond. If we determine that you have 

completed reclamation, we may release 

all or part of your bond. 

(8) If you hold a grant, you are still 

liable under § 2807.12 if: 

(i) We release all or part of your bond; 

(ii) The bond amount does not cover 

the cost of reclamation; or 

(iii) There is no bond in place. 

(b) If you hold a grant for solar energy 

development outside of designated 

leasing areas, you must provide a 

performance and reclamation bond (see 

paragraph (a) of this section). We will 

determine the bond amount based on 

the RCE (see paragraph (a)(3) of this 

section) and it must be no less than 

$10,000 per acre. 

(c) If you hold a grant for wind energy 

development outside of designated 

leasing areas, you must provide a 

performance and reclamation bond (see 

paragraph (a) of this section). We will 

determine the bond amount based on 

the RCE (see paragraph (a)(3) of this 

section) and must be no less than 

$20,000 per authorized turbine. For 

short-term right-of-way grants for wind 

energy site or project testing, the bond 

amount must be no less than $2,000 per 

authorized meteorological tower. 

Subpart 2806—Rents 

■ 27. Amend § 2806.12 by revising the 

section heading and paragraphs (a) and 

(b) and adding paragraph (d) to read as 

follows: 

§ 2806.12 When and where do I pay rent? 

(a) You must pay rent for the initial 

rental period before the BLM issues you 

a grant or lease. 

(1) If your non-linear grant or lease is 

effective on: 

(i) January 1 through September 30 

and qualifies for annual payments, your 

initial rent bill is pro-rated to include 

only the remaining full months in the 

initial year; or 

(ii) October 1 through December 31 

and qualifies for annual payments, your 

initial rent bill is pro-rated to include 

the remaining full months in the initial 

year plus the next full year. 

(2) If your non-linear grant allows for 

multi-year payments, such as a short 

term grant issued for wind energy site 

specific testing, you may request that 

your initial rent bill be for the full term 

of the grant instead of the initial rent 

bill periods provided paragraphs 

(a)(1)(i) or (ii) of this section. 

(b) You must make all other rental 

payments for linear rights-of-way 

according to the payment plan 

described in § 2806.24. 

* * * * * 

(d) You make all rental payments as 

instructed by us or as provided for by 

Secretarial order or legislative authority. 

■ 28. Amend § 2806.13 by: 

a. Revising the section heading and 

paragraph (a); 

b. Redesignating paragraph (e) as 

paragraph (f); and 

c. Adding new paragraphs (e) and (g). 

The revisions and additions read as 

follows: 

§ 2806.13 What happens if I do not pay 

rents and fees or if I pay the rents or fees 

late? 

(a) If the BLM does not receive the 

rent or fee payment required in this 

subpart 2806 within 15 calendar days 

after the payment was due under 

§ 2806.12, we will charge you a late 

payment fee of $25 or 10 percent of the 

amount you owe, whichever is greater, 

per authorization. 

* * * * * 

(e) Subject to applicable laws and 

regulations, we will retroactively bill for 

uncollected or under-collected rent, 

fees, and late payments, if: 

(1) A clerical error is identified; 

(2) An adjustment to rental schedules 

is not applied; or 

(3) An omission or error in complying 

with the terms and conditions of the 

authorized right-of-way is identified. 

* * * * * 

(g) We will not approve any further 

activities associated with your right-ofway until you make any outstanding 

payments that are due. 

■ 29. In § 2806.20, revise paragraph (c) 

to read as follows: 

§ 2806.20 What is the rent for a linear 

right-of-way grant? 

* * * * * 

(c) You may obtain a copy of the 

current Per Acre Rent Schedule from 

any BLM state, district, or field office or 

by writing: U.S. Department of the 

Interior, Bureau of Land Management, 

20 M Street SE., Room 2134LM, 

Washington, DC 20003. We also post the 

current rent schedule at http://

www.blm.gov. 

■ 30. In § 2806.22, revise the second 

sentence of paragraph (a) to read as 

follows: 

§ 2806.22 When and how does the Per 

Acre Rent Schedule change? 

(a) * * * For example, the average 

annual change in the IPD–GDP from 

1994 to 2003 (the 10-year period 

immediately preceding the year (2004) 

that the 2002 National Agricultural 

Statistics Service Census data became 

available) was 1.9 percent. * * * 

* * * * * 

■ 31. Amend § 2806.23 by removing 

paragraph (b) and redesignating 

paragraph (c) as paragraph (b). 

■ 32. In § 2806.24, revise paragraph (c) 

to read as follows: 

§ 2806.24 How must I make rental 

payments for a linear grant? 

* * * * * 

(c) Proration of payments. The BLM 

prorates the first year rental amount 

based on the number of months left in 

the calendar year after the effective date 

of the grant. If your grant requires, or 

you chose a 10-year payment term, or 

multiples thereof, the initial rent bill 

consists of the remaining partial year 

plus the next 10 years, or multiple 

thereof. 

■ 33. Amend § 2806.30 by: 

■ a. Revising paragraphs (a)(1) and 

(a)(2); 

■ b. Removing paragraph (b); and 

■ c. Redesignating paragraph (c) as 

paragraph (b). 

The revisions read as follows: 

§ 2806.30 What are the rents for 

communication site rights-of-way? 

(a) Rent schedule. (1) The BLM uses 

a rent schedule for communication site 

rights-of-way to calculate the rent for 

communication site rights-of-way. The 

schedule is based on nine population 

strata (the population served), as 

depicted in the most recent version of 

the Ranally Metro Area (RMA) 

Population Ranking, and the type of 

communication use or uses for which 

we normally grant communication site 

rights-of-way. These uses are listed as 

part of the definition of 

‘‘communication use rent schedule,’’ set 

out at § 2801.5(b). You may obtain a 

copy of the current schedule from any 

BLM state, district, or field office or by 


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writing: U.S. Department of the Interior, 

Bureau of Land Management, 20 M 

Street SE., Room 2134LM, Washington, 

DC 20003. We also post the current 

communication use rent schedule at 

http://www.blm.gov. 

(2) We update the schedule annually 

based on two sources: The U.S. 

Department of Labor Consumer Price 

Index for All Urban Consumers, U.S. 

City Average (CPI–U), as of July of each 

year (difference in CPI–U from July of 

one year to July of the following year), 

and the RMA population rankings. 

* * * * * 

■ 34. In § 2806.34, revise the second 

sentence of paragraph (b)(4) to read as 

follows: 

§ 2806.34 How will BLM calculate the rent 

for a grant or lease authorizing a multipleuse communication facility? 

* * * * * 

(4) * * * This paragraph does not 

apply to facilities exempt from rent 

under § 2806.14(a)(4) except when the 

facility also includes ineligible facilities. 

■ 35. In § 2806.43, revise the third 

sentence of paragraph (a) to read as 

follows: 

§ 2806.43 How does BLM calculate rent for 

passive reflectors and local exchange 

networks? 

(a) * * * For passive reflectors and 

local exchange networks not covered by 

a Forest Service regional schedule, we 

use the provisions in § 2806.70 to 

determine rent. * * * 

* * * * * 

■ 36. Amend § 2806.44 by adding 

introductory text and revising paragraph 

(a) to read as follows: 

§ 2806.44 How will BLM calculate rent for 

a facility owner’s or facility manager’s grant 

or lease which authorizes communication 

uses. 

This section applies to a grant or lease 

that authorizes a mixture of 

communication uses, some of which are 

subject to the communication use rent 

schedule and some of which are not. We 

will determine rent for these leases 

under the provisions of this section. 

(a) The BLM establishes the rent for 

each of the uses in the facility that are 

not covered by the communication use 

rent schedule using § 2806.70. 

* * * * * 

■ 37. Remove the undesignated centered 

heading preceding § 2806.50. 

■ 38. Redesignate § 2806.50 as 

§ 2806.70. 

■ 39. Add an undesignated centered 

heading and new § 2806.50 to read as 

follows: 

Solar Energy Rights-of-Way 

§ 2806.50 Rents and fees for solar energy 

rights-of-way. 

If you hold a solar energy right-of-way 

authorization, you must pay an annual 

rent and fee in accordance with this 

section and subpart. Your solar energy 

right-of-way authorization will either be 

a grant (if located outside a designated 

leasing area) or a lease (if located inside 

a designated leasing area). Rents and 

fees for either type of authorization 

consist of an acreage rent that must be 

paid prior to issuance of the 

authorization and a phased-in MW 

capacity fee. Both the acreage rent and 

the phased-in MW capacity fee are 

charged and calculated consistent with 

§ 2806.11 and prorated consistent with 

§ 2806.12(a). The MW capacity fee will 

vary depending on the size and 

technology of the solar energy 

development project. 

■ 40. Add new § 2806.52 to read as 

follows: 

§ 2806.52 Rents and fees for solar energy 

development grants. 

You must pay an annual rent and fee 

for your solar energy development grant 

as follows: 

(a) Acreage rent. The acreage rent is 

calculated by multiplying the number of 

acres (rounded up to the nearest tenth 

of an acre) within the authorized area 

times the per-acre county rate in effect 

at the time the authorization is issued; 

(1) Per-acre county rate. The per-acre 

county rate is 200 percent of the peracre rent value for each county using the 

BLM’s linear rent schedule (see 

§ 2806.20(c)). The BLM will adjust the 

per-acre county rates each year based on 

the average annual change in the IPD– 

GDP as determined under § 2806.22(a). 

Adjusted rates are effective each year on 

January 1. You may obtain a copy of the 

current per-acre county rates for solar 

energy development from any BLM 

state, district, or field office or by 

writing: U.S. Department of the Interior, 

Bureau of Land Management, 20 M 

Street SE., Room 2134LM, Attention: 

Renewable Energy Coordination Office, 

Washington, DC 20003; 

(2) Acreage rent payment. You must 

pay the acreage rent regardless of the 

stage of development or operations on 

the entire public land acreage described 

in the right-of-way authorization. The 

BLM State Director may approve a 

rental payment plan consistent with 

§ 2806.15(c); 

(3) Acreage rent adjustments. For 

authorizations outside of designated 

leasing areas, the BLM will adjust the 

acreage rent annually to reflect the 

change in the per-acre county rates as 

specified in paragraph (a)(1) of this 

section. The BLM will use the most 

current per-acre county rates to 

calculate the acreage rent for each year 

of the grant term. If you hold a solar 

energy lease, acreage rent will be 

adjusted under § 2806.54(a)(3); 

(b) MW capacity fee. The MW 

capacity fee is calculated by multiplying 

the approved MW capacity by the MW 

rate (for the applicable type of 

technology employed by the project) 

from the MW Rate Schedule (see 

paragraph (b)(2) of this section). You 

must pay the MW capacity fee annually 

when electricity generation begins or is 

scheduled to begin in the approved 

POD, whichever comes first; 

(1) MW rate. The MW rate is 

calculated by multiplying the total 

hours per year, by the net capacity 

factor, by the MWh price, by the rate of 

return. For an explanation of each of 

these terms, see the definition of MW 

rate in § 2801.5. The MW rate is phased 

in as described under paragraph (b)(4) of 

this section. 

(2) MW rate schedule. You may obtain 

a copy of the current MW Rate Schedule 

for solar energy development from any 

BLM state, district, or field office or by 

writing: U.S. Department of the Interior, 

Bureau of Land Management, 20 M 

Street SE., Room 2134LM, Attention: 

Renewable Energy Coordination Office, 

Washington, DC 20003. The BLM also 

posts the current MW Rate Schedule for 

solar energy development at http://

www.blm.gov; 

(3) Periodic adjustments in the MW 

rate. The BLM will adjust the MW rate 

every 5 years, beginning in 2020, by 

recalculating the following two 

components of the MW rate formula: 

(i) The adjusted MWh price is the 5- 

year average of the annual weighted 

average wholesale price per MWh for 

the major ICE trading hubs serving the 

11 Western States of the continental 

United States for the 5-year period 

preceding the adjustment, rounded to 

the nearest five dollar increment; and 

(ii) The adjusted rate of return is the 

10-year average of the 20-year U.S. 

Treasury bond yield for the 10-year 

period preceding the adjustment, 

rounded up to the nearest one-half 

percent, with a minimum rate of return 

of four percent. 

(4) MW rate phase-in. If you hold a 

solar energy development grant, the MW 

rate will be phased in as follows: 

(i) There is a 3-year phase-in of the 

MW rate after generation of electricity 

starts at the rates of: 

(A) 25 percent for the first year. The 

MW rate for year 1 of the phase-in 

period is for the first partial calendar 


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year of operations (at 25 percent of the 

current MW rate); 

(B) 50 percent for the second year; 

and 

(C) 100 percent for the third and 

subsequent years of operations. 

(ii) After generation of electricity 

starts and an approved POD provides for 

staged development: 

(A) The 3-year phase-in of the MW 

rate applies to each stage of 

development; and 

(B) The MW capacity fee is calculated 

using the authorized MW capacity 

approved for that stage plus any 

previously approved stages, multiplied 

by the MW rate. 

■ 41. Add new § 2806.54 to read as 

follows: 

§ 2806.54 Rents and fees for solar energy 

development leases inside designated 

leasing areas. 

If you hold a solar energy 

development lease obtained through 

competitive bidding under subpart 2809 

of this part, you must pay an annual 

rent and fee in accordance with this 

section and subpart, in addition to the 

one-time, upfront bonus bid you paid to 

obtain the lease. The annual rent and fee 

includes an acreage rent for the number 

of acres included within the solar 

energy lease and an additional MW 

capacity fee based on the total 

authorized MW capacity for the 

approved solar energy project on the 

public land. 

(a) Acreage rent. The BLM will 

calculate and bill you an acreage rent 

that must be paid prior to issuance of 

your lease as described in § 2806.52(a). 

(1) Per-acre county rate. See § 2806.52 

(a)(1). 

(2) Acreage rent payment. See 

§ 2806.52(a)(2). 

(3) Acreage rent adjustments. Once 

the acreage rent is determined under 

§ 2806.52(a), no further adjustments in 

the annual acreage rent will be made 

until year 11 of the lease term and each 

subsequent 10-year period thereafter. 

The BLM will use the per-acre county 

rates in effect when it adjusts the annual 

acreage rent at those 10-year intervals. 

(b) MW capacity fee. See § 2806.52 

(b)(1), (2), and (3). 

(c) MW rate phase-in. If you hold a 

solar energy development lease, the MW 

capacity fee will be phased in, starting 

when electricity begins to be generated. 

The MW capacity fee for years 1–20 will 

be calculated using the MW rate in 

effect when the lease is issued. The MW 

capacity fee for years 21–30 will be 

calculated using the MW rate in effect 

in year 21 of the lease. These rates will 

be phased-in as follows: 

(1) For years 1 through 10 of the lease, 

plus any initial partial year, the MW 

capacity fee is calculated by multiplying 

the project’s authorized MW capacity by 

50 percent of the applicable solar 

technology MW rate, as described in 

§ 2806.52(b); 

(2) For years 11 through 20 of the 

lease, the MW capacity fee is calculated 

by multiplying the project’s authorized 

MW capacity by 100 percent of the 

applicable solar technology MW rate, as 

described in § 2806.52(b). 

(3) For years 21 through 30 of the 

lease, the MW capacity fee is calculated 

by multiplying the project’s authorized 

MW capacity by 100 percent of the 

applicable solar technology MW rate, as 

described in § 2806.52(b)(2). 

(4) If the lease is renewed, the MW 

capacity fee is calculated using the MW 

rates at the beginning of the renewed 

lease period and will remain at that rate 

through the initial 10-year period of the 

renewal term. The MW capacity fee will 

be adjusted using the MW rate at the 

beginning of each subsequent 10-year 

period of the renewed lease term. 

(5) If an approved POD provides for 

staged development, the MW capacity 

fee is calculated using the MW capacity 

approved for that stage plus any 

previously approved stages, multiplied 

by the MW rate as described under this 

section. 

■ 42. Add new § 2806.56 to read as 

follows: 

§ 2806.56 Rent for support facilities 

authorized under separate grant(s). 

If a solar energy development project 

includes separate right-of-way 

authorizations issued for support 

facilities only (administration building, 

groundwater wells, construction lay 

down and staging areas, surface water 

management and control structures, 

etc.) or linear right-of-way facilities 

(pipelines, roads, power lines, etc.), rent 

is determined using the Per Acre Rent 

Schedule for linear facilities (see 

§ 2806.20(c)). 

■ 43. Add an undesignated centered 

heading and new §§ 2806.60, 2806.62, 

2806.64, 2806.66, and 2806.68, to read 

as follows: 

Wind Energy Rights-of-Way 

§ 2806.60 Rents and fees for wind energy 

rights-of-way. 

If you hold a grant for wind energy 

site-specific testing or project-area 

testing or if you hold a wind energy 

development right-of-way authorization, 

you must pay an annual rent and fee in 

accordance with this section and 

subpart. Your wind energy development 

right-of-way authorization will either be 

a grant (if located outside a designated 

leasing area) or a lease (if located inside 

a designated leasing area). Rents and 

fees for either type of authorization 

consist of an acreage rent that must be 

paid prior to issuance of the 

authorization and a phased-in MW 

capacity fee. Both the acreage rent and 

the phased-in MW capacity fee are 

charged and calculated consistent with 

§ 2806.11 and prorated consistent with 

§ 2806.12(a). The MW capacity fee will 

vary depending on the size of the wind 

energy development project. 

§ 2806.62 Rents and fees for wind energy 

development grants. 

You must pay an annual rent and fee 

for your wind energy development grant 

as follows: 

(a) Acreage rent. The acreage rent is 

calculated by multiplying the number of 

acres (rounded up to the nearest tenth 

of an acre) within the authorized area 

times the per-acre county rate in effect 

at the time the authorization is issued; 

(1) Per-acre county rate. The per-acre 

county rate is 20 percent of the per acre 

rent value for each county using the 

BLM’s Per Acre Rent Schedule (see 

§ 2806.20(c)). We will adjust the peracre county rates each year based on the 

average annual change in the IPD–GDP 

as determined under § 2806.22(a). 

Adjusted rates are effective each year on 

January 1. You may obtain a copy of the 

current per-acre county rates for wind 

energy development from any BLM 

state, district, or field office or by 

writing: U.S. Department of the Interior, 

Bureau of Land Management, 20 M 

Street SE., Room 2134LM, Attention: 

Renewable Energy Coordination Office, 

Washington, DC 20003. The BLM also 

posts the current per-acre county rate 

for wind energy development at http:// 

www.blm.gov. 

(2) Acreage rent payment. You must 

pay the acreage rent regardless of the 

stage of development or operations on 

the entire public land acreage described 

in the right-of-way authorization. The 

BLM State Director may approve a 

rental payment plan consistent with 

§ 2806.15(c); and 

(3) Acreage rent adjustments. We will 

adjust the acreage rent annually to 

reflect the change in the per-acre county 

rates as specified in paragraph (a)(1) of 

this section. The BLM will use the most 

current per-acre county rates to 

calculate the acreage rent for each year 

of the grant term. If you hold a wind 

energy lease, acreage rent will be 

adjusted under § 2806.64(a)(3). 

(b) MW capacity fee. The MW 

capacity fee is calculated by multiplying 

the approved MW capacity by the MW 

rate. You must pay the MW capacity fee 

annually when electricity generation 

begins or is scheduled to begin in the 

approved POD, whichever comes first. 


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(1) MW rate. The MW rate is 

calculated by multiplying the total 

hours per year by the net capacity 

factor, by the MWh price, by the rate of 

return. For an explanation of each of 

these terms, see the definition of MW 

rate in § 2801.5. If your right-of-way 

includes approved stages of 

development, your rate will be phased 

in as described under paragraph (b)(4) of 

this section. 

(2) MW rate schedule. You may obtain 

a copy of the current MW rate schedule 

for wind energy development from any 

BLM state, district, or field office or by 

writing: U.S. Department of the Interior, 

Bureau of Land Management, 20 M 

Street SE., Room 2134LM, Attention: 

Renewable Energy Coordination Office, 

Washington, DC 20003. The BLM also 

posts the current MW Rate Schedule for 

wind energy development at http://

www.blm.gov; 

(3) Periodic adjustments in the MW 

rate. We will adjust the MW rate every 

5 years, beginning in 2020, by 

recalculating the following two 

components of the MW rate formula: 

(i) The adjusted MWh price is the 5- 

year average of the annual weighted 

average wholesale price per MWh for 

the major ICE trading hubs serving the 

11 Western States of the continental 

United States for the 5-year period 

preceding the adjustment, rounded to 

the nearest five dollar increment; and 

(ii) The adjusted rate of return is the 

10-year average of the 20-year U.S. 

Treasury bond yield for the 10-year 

period preceding the adjustment, 

rounded up to the nearest one-half 

percent, with a minimum rate of return 

of four percent. 

(4) MW rate phase-in. If you hold a 

wind energy development grant, the 

MW rate will be phased in as follows: 

(i) There is a 3-year phase-in of the 

MW rate after generation of electricity 

starts at the rates of: 

(A) 25 percent for the first year. The 

MW rate for year 1 of the phase-in 

period is for the first partial calendar 

year of operations (at 25 percent of the 

current MW rate); 

(B) 50 percent for the second year; 

and 

(C) 100 percent for the third and 

subsequent years of operations. 

(ii) After generation of electricity 

starts and an approved POD provides for 

staged development: 

(A) The 3-year phase-in of the MW 

rate applies to each stage of 

development; and 

(B) The MW capacity fee is calculated 

using the authorized MW capacity 

approved for that stage plus any 

previously approved stages, multiplied 

by the MW rate. 

§ 2806.64 Rents and fees for wind energy 

development leases inside designated 

leasing areas. 

If you hold a wind energy 

development lease obtained through 

competitive bidding under subpart 2809 

of this part, you must pay an annual 

rent and fee in accordance with this 

section and subpart, in addition to the 

one-time, up front bonus bid you paid 

to obtain the lease. The annual rent 

includes an acreage rent for the number 

of acres included within the wind 

energy lease and an additional MW 

capacity fee based on the total 

authorized MW capacity for the 

approved wind energy project on the 

public land. 

(a) Acreage rent. The BLM will 

calculate and bill you an acreage rent 

that must be paid prior to issuance of 

your lease as described in § 2806.62(a). 

(1) Per-acre county rate. See 

§ 2806.62(a)(1). 

(2) Acreage rent payment. See 

§ 2806.62(a)(2). 

(3) Acreage rent adjustments. Once 

the acreage rent is determined under 

§ 2806.62(a), no further adjustments in 

the annual acreage rent will be made 

until year 11 of the lease term and each 

subsequent 10-year period thereafter. 

We will use the per-acre county rates in 

effect at the time the acreage rent is due 

(at the beginning of each 10-year period) 

to calculate the annual acreage rent for 

each of the subsequent 10-year periods. 

(b) MW capacity fee. See 

§ 2806.62(b)(1), (2), and (3). 

(c) MW rate phase-in. If you hold a 

wind energy development lease, the 

MW capacity fee will be phased in, 

starting when electricity begins to be 

generated. The MW capacity fee for 

years 1–20 will be calculated using the 

MW rate in effect when the lease is 

issued. The MW capacity fee for years 

21–30 will be calculated using the MW 

rate in effect in year 21 of the lease. 

These rates will be phased-in as follows: 

(1) For years 1 through 10 of the lease, 

plus any initial partial year, the MW 

capacity fee is calculated by multiplying 

the project’s authorized MW capacity by 

50 percent of the wind energy 

technology MW rate, as described in 

§ 2806.62(b); 

(2) For years 11 through 20 of the 

lease, the MW capacity fee is calculated 

by multiplying the project’s authorized 

MW capacity by 100 percent of the wind 

energy technology MW rate described in 

§ 2806.62(b); 

(3) For years 21 through 30 of the 

lease, the MW capacity fee is calculated 

by multiplying the project’s authorized 

MW capacity by 100 percent of the wind 

energy technology MW rate as described 

in § 2806.62(b). 

(4) If the lease is renewed, the MW 

capacity fee is calculated using the MW 

rates at the beginning of the renewed 

lease period and will remain at that rate 

through the initial 10 year period of the 

renewal term. The MW capacity fee will 

continue to adjust at the beginning of 

each subsequent 10 year period of the 

renewed lease term to reflect the then 

currently applicable MW rates. 

(5) If an approved POD provides for 

staged development, the MW capacity 

fee is calculated using the MW capacity 

approved for that stage plus any 

previously approved stage, multiplied 

by the MW rate, as described in this 

section. 

§ 2806.66 Rent for support facilities 

authorized under separate grant(s). 

If a wind energy development project 

includes separate right-of-way 

authorizations issued for support 

facilities only (administration building, 

groundwater wells, construction lay 

down and staging areas, surface water 

management, and control structures, 

etc.) or linear right-of-way facilities 

(pipelines, roads, power lines, etc.), rent 

is determined using the Per Acre Rent 

Schedule for linear facilities (see 

§ 2806.20(c)). 

§ 2806.68 Rent for wind energy 

development testing grant(s). 

(a) Grant for wind energy site specific 

testing. You must pay $100 per year for 

each meteorological tower or 

instrumentation facility location. BLM 

offices with approved small site rental 

schedules may use those fee structures 

if the fees in those schedules charge 

more than $100 per meteorological 

tower per year. In lieu of annual 

payments, you may instead pay for the 

entire term of the grant (3 years or less). 

(b) Grant for wind energy project area 

testing. You must pay $2,000 per year or 

$2 per acre per year for the lands 

authorized by the grant, whichever is 

greater. There is no additional rent for 

the installation of each meteorological 

tower or instrumentation facility located 

within the site testing and monitoring 

project area. 

■ 44. Add an undesignated centered 

heading between §§ 2806.68 and 

2806.70 to read as follows: 

Other Rights-of-Way 

■ 45. Revise newly redesignated 

§ 2806.70 to read as follows: 

§ 2806.70 How will the BLM determine the 

rent for a grant or lease when the linear, 

communication use, solar energy, or wind 

energy rent schedules do not apply? 

When we determine that the linear, 

communication use, solar, or wind 

energy rent schedules do not apply, we 


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may determine your rent through a 

process based on comparable 

commercial practices, appraisals, 

competitive bids, or other reasonable 

methods. We will notify you in writing 

of the rent determination. If you 

disagree with the rent determination, 

you may appeal our final determination 

under § 2801.10. 

Subpart 2807—Grant Administration 

and Operation 

■ 46. Amend § 2807.11 by: 

■ a. Revising paragraph (b); 

■ b. Redesignating paragraphs (d) and 

(e) as paragraphs (f) and (g); and 

■ c. Adding new paragraphs (d) and (e). 

The revisions and additions read as 

follows: 

§ 2807.11 When must I contact BLM during 

operations? 

* * * * * 

(b) When your use requires a 

substantial deviation from the grant. 

You must seek an amendment to your 

grant under § 2807.20 and obtain our 

approval before you begin any activity 

that is a substantial deviation; 

* * * * * 

(d) Whenever site-specific 

circumstances or conditions result in 

the need for changes to an approved 

right-of-way grant or lease, POD, site 

plan, mitigation measures, or 

construction, operation, or termination 

procedures that are not substantial 

deviations in location or use authorized 

by a right-of-way grant or lease. Changes 

for authorized actions, project materials, 

or adopted mitigation measures within 

the existing, approved right-of-way area 

must be submitted to us for review and 

approval. 

(e) To identify and correct 

discrepancies or inconsistencies. 

* * * * * 

■ 47. Amend § 2807.17 by redesignating 

existing paragraph (d) as paragraph (e) 

and adding new paragraph (d) to read as 

follows: 

§ 2807.17 Under what conditions may the 

BLM suspend or terminate my grant? 

* * * * * 

(d) The BLM may suspend or 

terminate another Federal agency’s grant 

only if: 

(1) The terms and conditions of the 

Federal agency’s grant allow it; or 

(2) The agency head holding the grant 

consents to it. 

* * * * * 

■ 48. Amend § 2807.21 as follows: 

■ a. Revise the section heading; 

■ b. Revise paragraph (a); 

■ c. Redesignate paragraphs (b), (c), (d) 

and (e) as paragraphs (d), (e), (f) and (g); 

■ d. Add paragraphs (b), (c), (h), and (i); 

and 

■ e. Revise redesignated paragraphs (d) 

and (f). 

The revisions and additions read as 

follows: 

§ 2807.21 May I assign or make other 

changes to my grant or lease? 

(a) With the BLM’s approval, you may 

assign, in whole or in part, any right or 

interest in a grant or lease. Actions that 

may require an assignment include, but 

are not limited to, the following: 

(1) The voluntary transfer by the 

holder (assignor) of any right or interest 

in the grant or lease to a third party 

(assignee); and 

(2) Changes in ownership or other 

related change in control transactions 

involving the BLM right-of-way holder 

and another business entity (assignee), 

including corporate mergers or 

acquisitions. In those instances where 

the grant or lease holder becomes a 

wholly owned subsidiary of a new third 

party, but still holds the grant and does 

business under its original name, it may 

only need to file new or revised 

information in conformance with 

subpart 2803, § 2804.12(b), and 

§ 2807.11 in order to obtain our 

approval of the change in the grant or 

lease. 

(b) Changes in the holder’s name only 

(see paragraph (i) of this section) do not 

constitute an assignment. 

(c) Changes in the holder’s articles of 

incorporation do not constitute an 

assignment. 

(d) In order to assign a grant, the 

proposed assignee must file an 

assignment application and follow the 

same procedures and standards as for a 

new grant or lease, including paying 

application and processing fees, and the 

grant must be in compliance with the 

terms and conditions of § 2805.12. We 

will not approve any assignment until 

the assignor makes any outstanding 

payments that are due (see § 2806.13(g)). 

* * * * * 

(f) We will not recognize an 

assignment until we approve it in 

writing. We will approve the assignment 

if doing so is in the public interest. 

Except for leases issued under subpart 

2809 of this part, we may modify the 

grant or lease or add bonding and other 

requirements, including additional 

terms and conditions, to the grant when 

approving the assignment. We may 

decrease rents if the new holder 

qualifies for an exemption (see 

§ 2806.14), or waiver or reduction (see 

§ 2806.15) and the previous holder did 

not. Similarly, we may increase rents if 

the previous holder qualified for an 

exemption or waiver or reduction and 

the new holder does not. If we approve 

the assignment, the benefits and 

liabilities of the grant apply to the new 

grant or lease holder. 

* * * * * 

(h) Only interests in issued right-ofway grants and leases are assignable. 

Pending right-of-way applications do 

not create any property rights or other 

interest and may not be assigned from 

one entity to another, except that an 

entity with a pending application may 

continue to pursue that application even 

if that entity becomes a wholly owned 

subsidiary of a new third party. 

(i) To complete a change in name 

only, (i.e., when the name change in 

question is not the result of an 

underlying change in control of the 

right-of-way grant), the following 

requirements must be met: 

(1) The holder must file an 

application requesting a name change 

and follow the same procedures as for 

a new grant, including paying 

processing fees, but not application fees 

(see subpart 2804 of this part). The 

name change request must include: 

(i) If the name change is for an 

individual, a copy of the court order or 

other legal document effectuating the 

name change; or 

(ii) If the name change is for a 

corporation, a copy of the corporate 

resolution(s) proposing and approving 

the name change, a copy of the 

acceptance of the change in name by the 

State or Territory in which 

incorporated, and a copy of the 

appropriate resolution, order or other 

documentation showing the name 

change. 

(2) In connection with its processing 

of a name change only, we may, under 

§ 2805.15, modify the grant or lease or 

add bonding and other requirements, 

including additional terms and 

conditions to the grant. We may only 

modify a lease issued under subpart 

2809 in accordance with § 2805.15(e). 

(3) We will recognize a name change 

in writing. 

■ 49. Amend § 2807.22 by: 

■ a. Revising the section heading and 

paragraphs (a), (b), and (d); 

■ b. Redesignating paragraph (f) as 

paragraph (g); and 

■ c. Adding new paragraph (f). 

The revisions and additions read as 

follows: 

§ 2807.22 How do I renew my grant or 

lease? 

(a) If your grant or lease specifies the 

terms and conditions for its renewal, 

and you choose to renew it, you must 

request a renewal from the BLM at least 

120 calendar days before your grant or 

lease expires consistent with the 


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renewal terms and conditions specified 

in your grant or lease. We will renew 

the grant or lease if you are in 

compliance with the renewal terms and 

conditions; the other terms, conditions, 

and stipulations of the grant or lease; 

and other applicable laws and 

regulations. 

(b) If your grant or lease does not 

specify the terms and conditions for its 

renewal, you may apply to us to renew 

the grant or lease. You must send us 

your application at least 120 calendar 

days before your grant or lease expires. 

In your application you must show that 

you are in compliance with the terms, 

conditions, and stipulations of the grant 

or lease and other applicable laws and 

regulations, and explain why a renewal 

of your grant or lease is necessary. We 

may approve or deny your application 

to renew your grant or lease. 

* * * * * 

(d) We will review your application 

and determine the applicable terms and 

conditions of any renewed grant or 

lease. 

* * * * * 

(f) If you make timely and sufficient 

application for a renewal of your 

existing grant or lease, or for a new grant 

or lease in accordance with this section, 

the existing grant does not expire until 

we have issued a decision to approve or 

deny the application. 

* * * * * 

■ 50. Revise subpart 2809 to read as 

follows: 

Subpart 2809—Competitive Process 

for Leasing Public Lands for Solar and 

Wind Energy Development Inside 

Designated Leasing Areas 

Sec. 

2809.10 General. 

2809.11 How will BLM solicit nominations? 

2809.12 How will BLM select and prepare 

parcels? 

2809.13 How will BLM conduct 

competitive offers? 

2809.14 What types of bids are acceptable? 

2809.15 How will BLM select the successful 

bidder? 

2809.16 When do variable offsets apply? 

2809.17 Will BLM ever reject bids or reconduct a competitive offer? 

2809.18 What terms and conditions apply 

to leases? 

2809.19 Applications in designated leasing 

areas, or on lands that later become 

designated leasing areas. 

Subpart 2809—Competitive Process 

for Leasing Public Lands for Solar and 

Wind Energy Development Inside 

Designated Leasing Areas 

§ 2809.10 General. 

(a) Lands inside designated leasing 

areas may be made available for solar 

and wind energy development through 

a competitive leasing offer process 

established by the BLM under this 

subpart. 

(b) The BLM may include lands in a 

competitive offer on its own initiative. 

(c) The BLM may solicit nominations 

by publishing a call for nominations 

under § 2809.11(b). 

§ 2809.11 How will BLM solicit 

nominations? 

(a) Call for nominations. The BLM 

will publish a notice in a newspaper of 

general circulation in the area affected 

by the potential offer of public land for 

solar and wind energy development; use 

other notification methods, including 

the Internet; and publish a notice in the 

Federal Register to solicit nominations 

and expressions of interest for parcels of 

land inside designated leasing areas for 

solar or wind energy development. 

(b) Nomination submission. A 

nomination must be in writing and must 

include the following: 

(1) Nomination fee. If you nominate a 

specific parcel of land under paragraph 

(a) of this section, you must also include 

a non-refundable nomination fee of $5 

per acre. We will adjust the nomination 

fee once every 10 years by the average 

annual change in the IPD–GDP for the 

preceding 10-year period and round it to 

the nearest half dollar. This 10 year 

average will be adjusted at the same 

time as the Per Acre Rent Schedule for 

linear rights-of-way under § 2806.22. 

(2) Nominator’s name and personal or 

business address. The name of only one 

citizen, association, partnership, 

corporation, or municipality may appear 

as the nominator. All communications 

relating to leasing will be sent to that 

name and address, which constitutes 

the nominator’s name and address of 

record. 

(3) The legal land description and a 

map of the nominated lands. 

(c) We may consider informal 

expressions of interest suggesting lands 

to be included in a competitive offer. If 

you submit a written expression of 

interest, you must provide a description 

of the suggested lands and rationale for 

their inclusion in a competitive offer. 

(d) In order to submit a nomination, 

you must be qualified to hold a grant or 

lease under § 2803.10. 

(e) Nomination withdrawals. A 

nomination cannot be withdrawn, 

except by the BLM for cause, in which 

case all nomination monies will be 

refunded to the nominator. 

§ 2809.12 How will BLM select and prepare 

parcels? 

(a) The BLM will identify parcels for 

competitive offer based on nominations 

and expressions of interest or on its own 

initiative. 

(b) The BLM and other Federal 

agencies will conduct necessary studies 

and site evaluation work, including 

applicable environmental reviews and 

public meetings, before offering lands 

competitively. 

§ 2809.13 How will BLM conduct 

competitive offers? 

(a) Variety of competitive procedures 

available. The BLM may use any type of 

competitive process or procedure to 

conduct its competitive offer, and any 

method, including the use of the 

Internet, to conduct the actual auction 

or competitive bid procedure. Possible 

bid procedures could include, but are 

not limited to: Sealed bidding, oral 

auctions, modified competitive bidding, 

electronic bidding, or any combination 

thereof. 

(b) Notice of competitive offer. We 

will publish a notice in a newspaper of 

general circulation in the area affected 

by the potential right-of-way; use other 

notification methods, including the 

Internet; and publish a notice in the 

Federal Register at least 30 days prior 

to the competitive offer. The newspaper 

and Federal Register notices will 

include: 

(1) The date, time, and location, if 

any, of the competitive offer; 

(2) The legal land description of the 

parcel to be offered; 

(3) The bidding methodology and 

procedures to be used in conducting the 

competitive offer, which may include 

any of the competitive procedures 

identified in paragraph (a) of this 

section; 

(4) The minimum bid required (see 

§ 2809.14(a)), including an explanation 

of how we determined this amount; 

(5) The qualification requirements of 

potential bidders (see § 2803.10); 

(6) If a variable offset (see § 2809.16) 

is offered; 

(i) The percent of each offset; 

(ii) How bidders may pre-qualify for 

each offset; and 

(iii) The documentation required to 

pre-qualify for each offset; and 

(7) The terms and conditions of the 

lease, including the requirements for the 

successful bidder to submit a POD for 

the lands involved in the competitive 

offer (see § 2809.18) and the lease 

mitigation requirements. 

(c) We will notify you in writing of 

our decision to conduct a competitive 

offer at least 30 days prior to the 

competitive offer if you nominated 

lands and paid the nomination fees 

required by § 2809.11(b)(1). 


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§ 2809.14 What types of bids are 

acceptable? 

(a) Bid submissions. The BLM will 

accept your bid only if: 

(1) It includes the minimum bid and 

at least 20 percent of the bonus bid; and 

(2) The BLM determines that you are 

qualified to hold a grant under 

§ 2803.10. You must include 

documentation of your qualifications 

with your bid, unless we have 

previously approved your qualifications 

under §§ 2809.10(d) or 2809.11(d). 

(b) Minimum bid. The minimum bid 

is not prorated among all bidders, but 

must be paid entirely by the successful 

bidder. The minimum bid consists of: 

(1) The administrative costs incurred 

by the BLM and other Federal agencies 

in preparing for and conducting the 

competitive offer, including required 

environmental reviews; and 

(2) An amount determined by the 

authorized officer and disclosed in the 

notice of competitive offer. This amount 

will be based on known or potential 

values of the parcel. In setting this 

amount, the BLM will consider factors 

that include, but are not limited to, the 

acreage rent, megawatt capacity fee, and 

mitigation costs. 

(c) Bonus bid. The bonus bid consists 

of any dollar amount that a bidder 

wishes to bid in addition to the 

minimum bid. 

(d) If you are not the successful 

bidder, as defined in § 2809.15(a), the 

BLM will refund your bid. 

§ 2809.15 How will BLM select the 

successful bidder? 

(a) The bidder with the highest total 

bid, prior to any variable offset, is the 

successful bidder and will be offered a 

lease in accordance with § 2805.10. 

(b) The BLM will determine the 

variable offsets for the successful bidder 

in accordance with § 2809.16 before 

issuing final payment terms. 

(c) Payment terms. If you are the 

successful bidder, you must: 

(1) Make payments by personal check, 

cashier’s check, certified check, bank 

draft, or money order, or by other means 

deemed acceptable by the BLM, payable 

to the Department of the Interior— 

Bureau of Land Management; and 

(2) By the close of official business 

hours on the day of the offer or such 

other time as the BLM may have 

specified in the offer notices, submit for 

each parcel: 

(i) Twenty percent of the bonus bid 

(before the offsets are applied under 

paragraph (b) of this section); 

(ii) The total amount of the minimum 

bid specified in § 2809.14(b); and 

(3) Within 15 calendar days after the 

day of the offer, submit the balance of 

the bonus bid (after the variable offsets 

are applied under paragraph (b) of this 

section) to the BLM office conducting 

the offer; and 

(4) Within 15 calendar days after the 

day of the offer, submit the acreage rent 

for the first full year of the solar or wind 

energy development lease as provided 

in §§ 2806.54(a) or 2806.64(a), 

respectively. This amount will be 

applied toward the first 12 months 

acreage rent, if the successful bidder 

becomes the lessee. 

(d) The BLM will approve your rightof-way lease if you are the successful 

bidder and: 

(1) Satisfy the qualifications in 

§ 2803.10; 

(2) Make the payments required under 

paragraph (c) of this section; and 

(3) Do not have any trespass action 

pending against you for any activity on 

BLM-administered lands (see § 2808.12) 

or have any unpaid debts owed to the 

Federal Government. 

(e) The BLM will not offer a lease to 

the successful bidder and will keep all 

money that has been submitted, if the 

successful bidder does not satisfy the 

requirements of § paragraph (d) of this 

section. In this case, the BLM may offer 

the lease to the next highest bidder 

under § 2809.17(b) or re-offer the lands 

under § 2809.17(d). 

§ 2809.16 When do variable offsets apply? 

(a) The successful bidder may be 

eligible for an offset of up to 20 percent 

of the bonus bid based on the factors 

identified in the notice of competitive 

offer. 

(b) The BLM may apply a variable 

offset to the bonus bid of the successful 

bidder. The notice of competitive offer 

will identify each factor of the variable 

offset, the specific percentage for each 

factor that would be applied to the 

bonus bid, and the documentation 

required to be provided to the BLM 

prior to the day of the offer to qualify 

for the offset. The total variable offset 

cannot be larger than 20 percent of the 

bonus bid. 

(c) The variable offset may be based 

on any of the following factors: 

(1) Power purchase agreement; 

(2) Large generator interconnect 

agreement; 

(3) Preferred solar or wind energy 

technologies; 

(4) Prior site testing and monitoring 

inside the designated leasing area; 

(5) Pending applications inside the 

designated leasing area; 

(6) Submission of nomination fees; 

(7) Timeliness of project 

development, financing, and economic 

factors; 

(8) Environmental benefits; 

(9) Holding a solar or wind energy 

lease on adjacent or mixed land 

ownership; 

(10) Public benefits; and 

(11) Other similar factors. 

(d) The BLM will determine your 

variable offset prior to the competitive 

offer. 

§ 2809.17 Will BLM ever reject bids or reconduct a competitive offer? 

(a) The BLM may reject bids 

regardless of the amount offered. If the 

BLM rejects your bid under this 

provision, you will be notified in 

writing and such notice will include the 

reason(s) for the rejection and what 

refunds to which you are entitled. If the 

BLM rejects a bid, the bidder may 

appeal that decision under § 2801.10. 

(b) We may offer the lease to the next 

highest qualified bidder if the successful 

bidder does not execute the lease or is 

for any reason disqualified from holding 

the lease. 

(c) If we are unable to determine the 

successful bidder, such as in the case of 

a tie, we may re-offer the lands 

competitively (under § 2809.13) to the 

tied bidders, or to all prospective 

bidders. 

(d) If lands offered under § 2809.13 

receive no bids, we may: 

(1) Re-offer the lands through the 

competitive process under § 2809.13; or 

(2) Make the lands available through 

the non-competitive application process 

found in subparts 2803, 2804, and 2805 

of this part, if we determine that doing 

so is in the public interest. 

§ 2809.18 What terms and conditions 

apply to leases? 

The lease will be issued subject to the 

following terms and conditions: 

(a) Lease term. The term of your lease 

includes the initial partial year in which 

it is issued, plus 30 additional full 

years. The lease will terminate on 

December 31 of the final year of the 

lease term. You may submit an 

application for renewal under 

§ 2805.14(g). 

(b) Rent. You must pay rent as 

specified in: 

(1) Section 2806.54 if your lease is for 

solar energy development; or 

(2) Section 2806.64 if your lease is for 

wind energy development. 

(c) POD. You must submit, within 2 

years of the lease issuance date, a POD 

that: 

(1) Is consistent with the development 

schedule and other requirements in the 

POD template posted at http://

www.blm.gov; and 

(2) Addresses all pre-development 

and development activities. 

(d) Cost recovery. You must pay the 

reasonable costs for the BLM or other 


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Federal agencies to review and approve 

your POD and to monitor your lease. To 

expedite review of your POD and 

monitoring of your lease, you may 

notify BLM in writing that you are 

waiving paying reasonable costs and are 

electing to pay the full actual costs 

incurred by the BLM. 

(e) Performance and reclamation 

bond. (1) For Solar Energy 

Development, you must provide a bond 

in the amount of $10,000 per acre prior 

to written approval to proceed with 

ground disturbing activities. 

(2) For Wind Energy Development, 

you must provide a bond in the amount 

of $20,000 per authorized turbine prior 

to written approval to proceed with 

ground disturbing activities. 

(3) The BLM will adjust the solar and 

wind energy development bond 

amounts every 10 years by the average 

annual change in the IPD–GDP for the 

preceding 10-year period rounded to the 

nearest $100. This 10-year average will 

be adjusted at the same time as the Per 

Acre Rent Schedule for linear rights-ofway under § 2806.22. 

(f) Assignments. You may assign your 

lease under § 2807.21, and if an 

assignment is approved, the BLM will 

not make any changes to the lease terms 

or conditions, as provided for by 

§ 2807.21(f). 

(g) Due diligence of operations. You 

must start construction within 5 years 

and begin generation of electricity no 

later than 7 years from the date of lease 

issuance, as specified in your approved 

POD. A request for an extension may be 

granted for up to 3 years with a show 

of good cause and approval by the BLM. 

§ 2809.19 Applications in designated 

leasing areas, or on lands that later become 

designated leasing areas. 

(a) Applications for solar or wind 

energy development filed on lands 

outside of designated leasing areas, 

which subsequently become designated 

leasing areas: 

(1) Will continue to be processed by 

the BLM and are not subject to the 

competitive leasing offer process of this 

subpart, if such applications are filed 

prior to the publication of the notice of 

availability of the draft or proposed land 

use plan amendment to designate the 

solar or wind leasing area; or 

(2) Will remain in pending status 

unless withdrawn by the applicant or 

denied by the BLM, or the subject lands 

become available for application or 

leasing under this part, if such 

applications are filed on or after the date 

of publication of the notice of 

availability of the draft or proposed land 

use plan amendment to designate the 

solar or wind leasing area. An applicant 

that submits a bid on a parcel of land 

for which an application is pending: 

(i) May qualify for a variable offset 

under § 2809.16; and 

(ii) Will not receive a refund for any 

application fees or processing costs 

incurred if the lands identified in the 

application are subsequently leased to 

another entity under § 2809.12. 

(b) After the effective date of this 

regulation, the BLM will not accept a 

new application for solar or wind 

energy development inside designated 

leasing areas (see § 2804.10(c)(2)). 

(c) You may file a new application 

under part 2804 for testing and 

monitoring purposes inside designated 

leasing areas. If the BLM approves your 

application, you will receive a short 

term grant in accordance with 

§§ 2805.11(b)(2)(i) or (ii), which may 

qualify you for an offset under 

§ 2809.16. 

PART 2880—RIGHTS–OF–WAY UNDER 

THE MINERAL LEASING ACT 

■ 51. The authority citation for part 

2880 continues to read as follows: 

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

Subpart 2884—Applying for MLA 

Grants or TUPs 

■ 52. Amend § 2884.10 by: 

■ a. Revising the introductory text in 

paragraph (b) and revising paragraph 

(b)(4); 

■ b. Redesignating paragraphs (c) and 

(d) as paragraphs (e) and (f); and 

■ c. Adding new paragraphs (c) and (d). 

The revisions and additions read as 

follows: 

§ 2884.10 What should I do before I file my 

application? 

* * * * * 

(b) Before filing an application with 

the BLM, we encourage you to make an 

appointment for a pre-application 

meeting with the appropriate personnel 

in the BLM state, district, or field office 

nearest the lands you seek to use. Preapplication meetings are mandatory for 

applications for any oil and gas pipeline 

10 inches or more in diameter under 

paragraph (c) of this section. During the 

pre-application meeting the BLM can: 

* * * * * 

(4) Provide you information about 

qualifications for holding grants and 

TUPs and inform you of your financial 

obligations, such as processing and 

monitoring costs and rents. In addition 

to such costs, you are required to pay 

the reasonable costs, and may elect to 

pay the actual costs that are associated 

with the pre-application requirements 

identified in paragraph (c) of this 

section; and 

* * * * * 

(c) Prior to submitting an application 

for any oil and gas pipeline 10 inches 

or more in diameter, you must: 

(1) Schedule and hold an initial preapplication meeting with us to discuss: 

(i) The general project proposal; 

(ii) The status of BLM land use 

planning for the lands involved; 

(iii) Potential siting issues or 

concerns; 

(iv) Potential environmental issues or 

concerns at the landscape scale; 

(v) Potential alternative site locations; 

and 

(vi) The right-of-way application 

process; 

(2) Schedule and hold, in 

coordination with the BLM, one 

additional pre-application meeting with 

appropriate Federal and State agencies, 

tribal, and local governments to 

facilitate coordination of potential 

environmental and siting issues and 

concerns. The BLM and you may agree 

mutually to schedule and hold 

additional pre-application meetings; 

and 

(3) Initiate early discussions with 

grazing permittees that may be affected 

by the proposed project in accordance 

with 43 CFR 4110.4–2(b). 

(d) In addition to all other preapplication, application, and holder 

requirements specified in this part, we 

will accept an application for oil and 

gas pipelines 10 inches or more in 

diameter only if the: 

(1) Proposal avoids areas where 

development could cause significant 

impacts to sensitive resources and 

values that are the basis for special 

designations or protections; 

(2) The pre-application meetings 

described in paragraphs (c)(1) and (2) of 

this section have been completed to our 

satisfaction; and 

(3) Application is accompanied by a 

general description of the proposed 

project and a schedule for the submittal 

of a POD conforming to the POD 

template at http://www.blm.gov. 

■ 53. In § 2884.11, revise paragraph 

(c)(5) to read as follows: 

§ 2884.11 What information must I submit 

in my application? 

* * * * * 

(c) * * * 

(5) The estimated schedule for 

constructing, operating, maintaining, 

and terminating the project (a POD). 

Your POD must be consistent with the 

development schedule and other 

requirements as noted on the POD 

template for oil and gas pipelines at 

http://www.blm.gov; 

* * * * * 


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■ 54. In § 2884.12, revise paragraphs (a), 

(b), and (c) to read as follows: 

§ 2884.12 What is the processing fee for a 

grant or TUP application? 

(a) You must pay a processing fee 

with the application to cover the costs 

to the Federal Government of processing 

your application before the Federal 

Government incurs them. Subject to 

applicable laws and regulations, if 

processing your application will involve 

Federal agencies other than the BLM, 

your fee may also include the 

reasonable costs estimated to be 

incurred by those Federal agencies. 

Instead of paying the BLM a fee for the 

estimated work of other Federal 

agencies in processing your application, 

you may pay other Federal agencies 

directly for the costs estimated to be 

incurred by them in processing your 

application. The fees for Processing 

Categories 1 through 4 are one-time fees 

and are not refundable. The fees are 

categorized based on an estimate of the 

amount of time that the Federal 

Government will expend to process 

your application and issue a decision 

granting or denying the application. 

(b) There is no processing fee if work 

is estimated to take 1 hour or less. 

Processing fees are based on categories. 

We update the processing fees for 

Categories 1 through 4 in the schedule 

each calendar year, based on the 

previous year’s change in the IPD–GDP, 

as measured second quarter to second 

quarter. We will round these changes to 

the nearest dollar. We will update 

Category 5 processing fees as specified 

in the Master Agreement. These 

processing categories and the estimated 

range of Federal work hours for each 

category are: 

PROCESSING CATEGORIES

Processing category Federal work hours involved 

(1) Applications for new grants or TUPs, assignments, renewals, and amendments to existing grants or 

TUPs.

Estimated Federal work hours are 

>1 ≤8. 

(2) Applications for new grants or TUPs, assignments, renewals, and amendments to existing grants or 

TUPs.

Estimated Federal work hours are 

>8 ≤24. 

(3) Applications for new grants or TUPs, assignments, renewals, and amendments to existing grants or 

TUPs.

Estimated Federal work hours are 

>24 ≤36. 

(4) Applications for new grants or TUPs, assignments, renewals, and amendments to existing grants or 

TUPs.

Estimated Federal work hours are 

>36 ≤50. 

(5) Master Agreements. ..................................................................................................................................... Varies. 

(6) Applications for new grants or TUPs, assignments, renewals, and amendments to existing grants or 

TUPs.

Estimated Federal work hours are 

>50. 

(c) You may obtain a copy of the 

current schedule from any BLM state, 

district, or field office or by writing: 

U.S. Department of the Interior, Bureau 

of Land Management, 20 M Street SE., 

Room 2134LM, Washington, DC 20003. 

The BLM also posts the current 

schedule at http://www.blm.gov. 

* * * * * 

■ 55. Amend § 2884.16 by redesignating 

paragraphs (a)(6), (a)(7), and (a)(8) as 

paragraphs (a)(7), (a)(8), and (a)(9), and 

adding new paragraph (a)(6). The 

addition reads as follows: 

§ 2884.16 What provisions do Master 

Agreements contain and what are their 

limitations? 

(a) * * * 

(6) Describes existing agreements 

between the BLM and other Federal 

agencies for cost reimbursement; 

* * * * * 

■ 56. Amend § 2884.17 by revising 

paragraph (a) and adding new paragraph 

(e) to read as follows: 

§ 2884.17 How will BLM process my 

Processing Category 6 application? 

(a) For Processing Category 6 

applications, you and the BLM must 

enter into a written agreement that 

describes how we will process your 

application. The final agreement 

consists of a work plan, a financial plan, 

and a description of any existing 

agreements you have with other Federal 

agencies for cost reimbursement 

associated with such application. 

* * * * * 

(e) We may collect funds to reimburse 

the Federal Government for reasonable 

costs for processing applications and 

other documents under this part relating 

to the Federal lands. 

■ 57. In § 2884.18, revise revising 

paragraphs (a)(1) and (c) to read as 

follows: 

§ 2884.18 What if there are two or more 

competing applications for the same 

pipeline? 

(a) * * * 

(1) Processing Categories 1 through 4. 

You must reimburse the Federal 

Government for processing costs as if 

the other application or applications 

had not been filed. 

* * * * * 

(c) If we determine that competition 

exists, we will describe the procedures 

for a competitive bid through a bid 

announcement in a newspaper of 

general circulation; use other 

notification methods, including the 

Internet, in the area affected by the 

potential right-of-way; and by 

publishing a notice in the Federal 

Register. We may offer lands through a 

competitive process on our own 

initiative. 

■ 58. Amend § 2884.20 by revising the 

introductory text of paragraph (a) and 

revising paragraph (d) to read as 

follows: 

§ 2884.20 What are the public notification 

requirements for my application? 

(a) When the BLM receives your 

application, it will publish a notice in 

the Federal Register, a newspaper of 

general circulation in the vicinity of the 

lands involved, or use other notification 

methods, including the Internet. If we 

determine the pipeline(s) will have only 

minor environmental impacts, we are 

not required to publish this notice. The 

notice will, at a minimum, contain: 

* * * * * 

(d) We may hold public hearings or 

meetings on your application if we 

determine that there is sufficient 

interest to warrant the time and expense 

of such hearings or meetings. We will 

publish a notice in the Federal Register, 

in a newspaper of general circulation in 

the vicinity of the lands involved, or use 

other notification methods, including 

the Internet, to announce in advance 

any public hearings or meetings. 

■ 59. Amend § 2884.21 by: 

■ a. Redesignating paragraphs (b) and 

(c) as paragraphs (c) and (d); 

■ b. Adding new paragraph (b); and 

■ c. Revising redesignated paragraph 

(d)(4). 

The revisions and additions read as 

follows: 


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§ 2884.21 How will BLM process my 

application? 

* * * * * 

(b) Except as otherwise provided in 

this paragraph, the BLM will not 

process your application if you have any 

trespass action pending for any activity 

on BLM-administered lands (see 

§ 2888.11) or have any unpaid debts 

owed to the Federal Government. The 

only applications the BLM would 

process to resolve the trespass would be 

for a right-of-way as authorized in this 

part, or a lease or permit under the 

regulations found at 43 CFR part 2920, 

but only after outstanding debts are 

paid. 

* * * * * 

(d) * * * 

(4) Hold public meetings, if sufficient 

public interest exists to warrant their 

time and expense. The BLM will 

publish a notice in the Federal Register, 

in a newspaper of general circulation in 

the vicinity of the lands involved, or use 

other methods, including the Internet, to 

announce in advance any public 

hearings or meetings; and 

* * * * * 

■ 60. Amend § 2884.23 by redesignating 

paragraph (a)(6) as paragraph (a)(7), 

adding new paragraph (a)(6), and 

revising newly redesignated paragraph 

(a)(7) to read as follows: 

§ 2884.23 Under what circumstances may 

BLM deny my application? 

(a) * * * 

(6) The POD required by 

§§ 2884.10(d)(3) and 2884.11(c)(5) does 

not meet the development schedule and 

other requirements as noted on the POD 

template and the applicant is unable to 

demonstrate why the POD should be 

approved; or 

(7) You do not adequately comply 

with a deficiency notice (see 

§ 2804.25(b) of this chapter) or with any 

requests from the BLM for additional 

information needed to process the 

application. 

* * * * * 

■ 61. Amend § 2884.24 by revising the 

first sentence of the introductory text to 

read as follows: 

§ 2884.24 What fees do I owe if BLM 

denies my application or if I withdraw my 

application? 

If the BLM denies your application, or 

you withdraw it, you must pay costs 

incurred under § 2884.10(b)(4) and the 

processing fee set forth at § 2884.12(b), 

unless you have a Processing Category 

5 or 6 application.* * * 

* * * * * 

■ 62. Amend § 2885.11 by revising the 

introductory text of paragraph (a) and 

revising paragraph (b)(7) to read as 

follows: 

§ 2885.11 What terms and conditions must 

I comply with? 

(a) Duration. All grants, except those 

issued for a term of 3 years or less, will 

expire on December 31 of the final year 

of the grant. The term of a grant may not 

exceed 30 years, with the initial partial 

year of the grant considered to be the 

first year of the term. The term of a TUP 

may not exceed 3 years. The BLM will 

consider the following factors in 

establishing a reasonable term: 

* * * * * 

(b) * * * 

(7) If we require, obtain or certify that 

you have obtained a performance and 

reclamation bond or other acceptable 

security to cover any losses, damages, or 

injury to human health, the 

environment, and property incurred in 

connection with your use and 

occupancy of the right-of-way or TUP 

area, including terminating the grant or 

TUP, and to secure all obligations 

imposed by the grant or TUP and 

applicable laws and regulations. Your 

bond must cover liability for damages or 

injuries resulting from releases or 

discharges of hazardous materials. We 

may require a bond, an increase or 

decrease in the value of an existing 

bond, or other acceptable security at any 

time during the term of the grant or 

TUP. This bond is in addition to any 

individual lease, statewide, or 

nationwide oil and gas bonds you may 

have. All other provisions noted at 

§ 2805.12(b) of this chapter regarding 

bond requirements for grants and leases 

issued under FLPMA also apply to oil 

and gas pipelines issued under this part; 

* * * * * 

■ 63. Amend § 2885.15 by revising 

paragraph (b) to read as follows: 

§ 2885.15 How will BLM charge me rent? 

* * * * * 

(b) There are no reductions or waivers 

of rent for grants or TUPs, except as 

provided under § 2885.20(b). 

* * * * * 

■ 64. Amend § 2885.16 by revising 

paragraph (a) to read as follows: 

§ 2885.16 When do I pay rent? 

(a) You must pay rent for the initial 

rental period before we issue you a grant 

or TUP. We prorate the initial rental 

amount based on the number of full 

months left in the calendar year after the 

effective date of the grant or TUP. If 

your grant qualifies for annual 

payments, the initial rent consists of the 

remaining partial year plus the next full 

year. If your grant or TUP allows for 

multi-year payments, your initial rent 

payment may be for the full term of the 

grant or TUP. See § 2885.21 for 

additional information on payment of 

rent. 

* * * * * 

■ 65. Amend § 2885.17 by revising the 

section heading, redesignating 

paragraph (e) as paragraph (f), and by 

adding new paragraph (e) to read as 

follows: 

§ 2885.17 What happens if I do not pay 

rent or if I pay the rent late? 

* * * * * 

(e) We will retroactively bill for 

uncollected or under-collected rent, 

including late payment and 

administrative fees, upon discovery if: 

(1) A clerical error is identified; 

(2) An adjustment to rental schedules 

is not applied; or 

(3) An omission or error in complying 

with the terms and conditions of the 

authorized right-of-way is identified. 

* * * * * 

■ 66. In § 2885.19, revise paragraph (b) 

to read as follows: 

§ 2885.19 What is the rent for a linear 

right-of-way grant? 

* * * * * 

(b) You may obtain a copy of the 

current Per Acre Rent Schedule from 

any BLM state, district, or field office or 

by writing: U.S. Department of the 

Interior, Bureau of Land Management, 

20 M Street SE., Room 2134LM, 

Washington, DC 20003. The BLM also 

posts the current rent schedule at 

http://www.blm.gov. 

■ 67. In § 2885.20, revise paragraph (b) 

to read as follows: 

§ 2885.20 How will the BLM calculate my 

rent for linear rights-of-way the Per Acre 

Rent Schedule covers? 

(a) * * * 

(b) Phase-in provisions: If, as the 

result of any revisions made to the Per 

Acre Rent Schedule under 

§ 2885.19(a)(2), the payment of your 

new annual rental amount would cause 

you undue hardship, you may qualify 

for a 2-year phase-in period if you are 

a small business entity as that term is 

defined in Small Business 

Administration regulations and if it is in 

the public interest. We will require you 

to submit information to support your 

claim. If approved by the BLM State 

Director, payment of the amount in 

excess of the previous year’s rent may 

be phased-in by equal increments over 

a 2-year period. In addition, the BLM 

will adjust the total calculated rent for 

year 2 of the phase-in period by the 

annual index provided by 

§ 2885.19(a)(1). 

* * * * * 


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■ 68. Revise § 2885.24 to read as 

follows: 

§ 2885.24 If I hold a grant or TUP, what 

monitoring fees must I pay? 

(a) Monitoring fees. Subject to 

§ 2886.11, you must pay a fee to the 

BLM for any costs the Federal 

Government incurs in monitoring the 

construction, operation, maintenance, 

and termination of the pipeline and 

protection and rehabilitation of the 

affected public lands your grant or TUP 

covers. We update the monitoring fees 

for Categories 1 through 4 in the 

schedule each calendar year, based on 

the previous year’s change in the IPD– 

GDP, as measured second quarter to 

second quarter. We will round these 

changes to the nearest dollar. We will 

update Category 5 monitoring fees as 

specified in the Master Agreement. We 

categorize the monitoring fees based on 

the estimated number of work hours 

necessary to monitor your grant or TUP. 

Monitoring fees for Categories 1 through 

4 are one-time fees and are not 

refundable. These monitoring categories 

and the estimated range of Federal work 

hours for each category are: 

MONITORING CATEGORIES

Monitoring category Federal work hours involved 

(1) Applications for new grants and TUPs, assignments, renewals, and amendments to existing grants and 

TUPs.

Estimated Federal work hours are 

>1 ≤8. 

(2) Applications for new grants and TUPs, assignments, renewals, and amendments to existing grants and 

TUPs.

Estimated Federal work hours are 

>8 ≤24. 

(3) Applications for new grants and TUPs, assignments, renewals, and amendments to existing grants and 

TUPs.

Estimated Federal work hours are 

>24 ≤36. 

(4) Applications for new grants and TUPs, assignments, renewals, and amendments to existing grants and 

TUPS.

Estimated Federal work hours are 

>36 ≤50. 

(5) Master Agreements ...................................................................................................................................... Varies. 

(6) Applications for new grants and TUPs, assignments, renewals, and amendments to existing grants and 

TUPs.

Estimated Federal work hours >50. 

(b) The current monitoring cost 

schedule is available from any BLM 

state, district, or field office or by 

writing: U.S. Department of the Interior, 

Bureau of Land Management, 20 M 

Street SE., Room 2134LM, Washington, 

DC 20003. The BLM also posts the 

current schedule at http://www.blm.gov. 

■ 69. Amend § 2886.12 by: 

■ a. Revising paragraph (b); 

■ b. Redesignating paragraph (d) as 

paragraph (g); and 

■ c. Adding new paragraphs (d), (e), and 

(f). 

The revisions and additions read as 

follows: 

§ 2886.12 When must I contact BLM during 

operations? 

* * * * * 

(b) When your use requires a 

substantial deviation from the grant or 

TUP. You must seek an amendment to 

your grant or TUP under § 2887.10 and 

obtain our approval before you begin 

any activity that is a substantial 

deviation; 

* * * * * 

(d) Whenever site-specific 

circumstances or conditions arise that 

result in the need for changes to an 

approved right-of-way grant or TUP, 

POD, site plan, mitigation measures, or 

construction, operation, or termination 

procedures that are not substantial 

deviations in location or use authorized 

by a right-of-way grant or TUP. Changes 

for authorized actions, project materials, 

or adopted mitigation measures within 

the existing, approved right-of-way or 

TUP area must be submitted to the BLM 

for review and approval; 

(e) To identify and correct 

discrepancies or inconsistencies; 

(f) When you submit a certification of 

construction, if the terms of your grant 

require it. A certification of construction 

is a document you submit to the BLM 

after you have finished constructing a 

facility, but before you begin operating 

it, verifying that you have constructed 

and tested the facility to ensure that it 

complies with the terms of the grant and 

with applicable Federal and State laws 

and regulations; and 

* * * * * 

Subpart 2887—Amending, Assigning, 

or Renewing MLA Grants and TUPs 

■ 70. Revise § 2887.11 to read as 

follows: 

§ 2887.11 May I assign or make other 

changes to my grant or TUP? 

(a) With the BLM’s approval, you may 

assign, in whole or in part, any right or 

interest in a grant or TUP. Actions that 

may require an assignment include, but 

are not limited to, the following: 

(1) The voluntary transfer by the 

holder (assignor) of any right or interest 

in the grant or TUP to a third party 

(assignee); and 

(2) Changes in ownership or other 

related change in control transactions 

involving the BLM right-of-way grant 

holder or TUP holder and another 

business entity (assignee), including 

corporate mergers or acquisitions. In 

those instances where the grant or TUP 

holder becomes a wholly owned 

subsidiary of a new third party, but still 

holds the grant or TUP and does 

business under its original name, it may 

only need to file new or revised 

information in conformance with 

subpart 2883, §§ 2884.11(c) and 2886.12 

in order to obtain the BLM’s approval of 

the changes in the grant or TUP. 

(b) Changes in the holder’s name only 

(see paragraph (i) of this section) do not 

constitute an assignment. 

(c) Changes in the holder’s articles of 

incorporation do not constitute an 

assignment. 

(d) In order to assign a grant or TUP, 

the proposed assignee, subject to 

§ 2886.11, must file an application and 

follow the same procedures and 

standards as for a new grant or TUP, 

including paying processing fees (see 

§ 2884.12). 

(e) The assignment application must 

also include: 

(1) Documentation that the assignor 

agrees to the assignment; and 

(2) A signed statement that the 

proposed assignee agrees to comply 

with and to be bound by the terms and 

conditions of the grant or TUP that is 

being assigned and all applicable laws 

and regulations. 

(f) We will not recognize an 

assignment until we approve it in 

writing. We will approve the assignment 

if doing so is in the public interest. The 

BLM may modify the grant or TUP or 

add bonding and other requirements, 

including terms and conditions, to the 

grant or TUP when approving the 

assignment. If we approve the 

assignment, the benefits and liabilities 

of the grant or TUP apply to the new 

grant or TUP holder. 


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(g) The processing time and 

conditions described at § 2884.21 apply 

to assignment applications. 

(h) Only interests in issued right-ofway grants and TUPs are assignable. 

Pending right-of-way and TUP 

applications do not create any property 

rights or other interest and may not be 

assigned from one entity to another, 

except that an entity with a pending 

application may continue to pursue that 

application even if that entity becomes 

a wholly owned subsidiary of a new 

third party. 

(i) Change in name only of holder. 

Name only changes are made by 

individuals, partnerships, corporations, 

and other right-of-way and TUP holders 

for a variety of business or legal reasons. 

To complete a change in name only, 

(i.e., when the name change in question 

is not the result of an underlying change 

in control of the right-of-way grant or 

TUP), the following requirements must 

be met: 

(1) The holder must file an 

application requesting a name change 

and follow the same procedures as for 

a new grant or TUP, including paying 

processing fees (see subpart 2884 of this 

part). The name change request must 

include: 

(i) If the name change is for an 

individual, a copy of the court order or 

other legal document effectuating the 

name change; or 

(ii) If the name change is for a 

corporation, a copy of the corporate 

resolution(s) proposing and approving 

the name change, a copy of the filing/ 

acceptance of the change in name by the 

State or territory in which incorporated, 

and a copy of the appropriate 

resolution(s), order(s), or other 

documentation showing the name 

change. 

(2) In connection with its processing 

of a name change only, the BLM retains 

the authority under § 2885.13 to modify 

the grant or TUP, or add bonding and 

other requirements, including 

additional terms and conditions, to the 

grant or TUP. 

(3) The BLM will recognize a name 

change in writing. 

■ 71. In § 2887.12, add new paragraphs 

(d) and (e) to read as follows: 

§ 2887.12 How do I renew my grant? 

* * * * * 

(d) If you make timely and sufficient 

application for a renewal of your 

existing grant or for a new grant in 

accordance with this section, the 

existing grant does not expire until we 

have issued a decision to approve or 

deny the application. 

(e) If we deny your application, you 

may appeal the decision under 

§ 2881.10. 

Dated: September 23, 2014. 

Janice M. Schneider, 

Assistant Secretary, Land and Minerals 

Management, U.S. Department of the Interior. 

[FR Doc. 2014–23089 Filed 9–26–14; 11:15 am] 

BILLING CODE 4310–84–P 


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