43 C.F.R. §§ 2804.14–2804.22

§2804.14. What are the fee categories for cost recovery?

43 C.F.R. § 2804.14

(a)

Unless your fees are waived under § 2804.16, you must pay cost recovery fees for the reasonable costs associated with your application and grant. Subject to applicable laws and regulations, if 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. The fees for Categories 1 through 4 (see paragraph (b) of this section) are one-time fees and are not refundable. Reasonable costs are those costs defined in Section 304(b) of FLPMA (43 U.S.C. 1734(b)). The fees are categorized based on an estimate of the amount of time that the Federal Government will expend to process your application, issue a decision granting or denying the application, and monitor that land use authorization.

(b)

The BLM bases cost recovery fees on categories. The BLM will update the fee schedule for Categories 1 through 4 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 fees, which may include preliminary application review, processing, and monitoring, as specified in the applicable Master Agreement. Category 6 fees are for situations when a right-of-way activity will require more than 64 hours, or when an environmental impact statement (EIS) is required and may include preliminary application review costs. The cost recovery categories and the estimated range of Federal work hours for each category are:

(c)

You may obtain a copy of the current year's cost recovery fee schedule at https://www.blm.gov, by contacting your local BLM state, district, or field office, or by writing: Attention to the Division of Lands, Realty and Cadastral Survey, U.S. Department of the Interior, Director (HQ-350), Bureau of Land Management, 1849 C Street NW, Mail Stop 2134LM, Washington, DC 20240.

(d)

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

(e)

In processing your application, the BLM may determine at any time that the application requires preparing an EIS. If this occurs, the BLM will send you a decision changing your cost recovery category to Category 6. You may appeal this decision under § 2801.10.

(f)

To expedite processing of your application, you may notify the BLM in writing that you are waiving application of the factors identified in §§ 2804.20(a) and 2804.21 to determine reasonable costs and are electing to pay the actual costs incurred by the BLM in processing your application and monitoring your grant.

Notes, amendments, and revision history

Amendments

[89 FR 25959, Apr. 12, 2024]

Authority

Authority: 43 U.S.C. 1733, 1740, 1763, 1764, and 3003.

Source

Source: 70 FR 21058, Apr. 22, 2005, unless otherwise noted.

Amendments

[89 FR 25959, Apr. 12, 2024]

§2804.15. When does the BLM reevaluate the cost recovery fees?

43 C.F.R. § 2804.15

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

(a)

Technology;

(b)

The procedures for processing applications and monitoring grants;

(c)

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

(d)

The IPD-GDP.

Notes, amendments, and revision history

Authority

Authority: 43 U.S.C. 1733, 1740, 1763, 1764, and 3003.

Source

Source: 70 FR 21058, Apr. 22, 2005, unless otherwise noted.

§2804.16. When will the BLM waive cost recovery fees?

43 C.F.R. § 2804.16

(a)

The BLM may waive your cost recovery fees if:

(1)

You are a State or local government, or an agency of such a government, and the BLM issues the grant for governmental purposes benefitting the general public. However, if you collect revenue from charges you levy on customers for services similar to those of a profit-making corporation or business, or you assess similar fees to the United States for similar purposes, cost recovery fees will not be waived;

(2)

Your application under this subpart is associated with a cost-share road or reciprocal right-of-way agreement; or

(3)

You are a Federal agency, and your cost recovery category determination is Category 1 to 4.

(b)

The BLM will not waive your cost recovery fees if you are in trespass.

Notes, amendments, and revision history

Amendments

[89 FR 25960, Apr. 12, 2024]

Authority

Authority: 43 U.S.C. 1733, 1740, 1763, 1764, and 3003.

Source

Source: 70 FR 21058, Apr. 22, 2005, unless otherwise noted.

Amendments

[89 FR 25960, Apr. 12, 2024]

§2804.17. What is a Master Agreement (Cost Recovery Category 5) and what information must I provide to the BLM when I request one?

43 C.F.R. § 2804.17

(a)

A Master Agreement (Cost Recovery Category 5) is a written agreement covering processing and monitoring fees (see § 2804.14) negotiated between the BLM and you that involves multiple BLM grant approvals and/or monitoring scenarios for projects within defined geographic areas or for a specific common activity for many projects.

(b)

Your request for a Master Agreement must—

(1)

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

(2)

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

(3)

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

(4)

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

(5)

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

Notes, amendments, and revision history

Amendments

[70 FR 21058, Apr. 22, 2005, as amended at 89 FR 25960, Apr. 12, 2024]

Authority

Authority: 43 U.S.C. 1733, 1740, 1763, 1764, and 3003.

Source

Source: 70 FR 21058, Apr. 22, 2005, unless otherwise noted.

Amendments

[70 FR 21058, Apr. 22, 2005, as amended at 89 FR 25960, Apr. 12, 2024]

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

43 C.F.R. § 2804.18

(a)

A Master Agreement—

(1)

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

(2)

Describes the work you will do and the work the BLM will do to complete right-of-way activities;

(3)

Describes the method of periodic billing, payment, and auditing;

(4)

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

(5)

Explains how the BLM will monitor a grant and how the BLM will receive payment for this work;

(6)

Describes existing agreements between the BLM and other Federal agencies for cost reimbursement;

(7)

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

(8)

Contains specific conditions for terminating the Agreement;

(9)

May be prepared so that it includes previously granted rights-of-way held by the right-of-way holder; and

(10)

Contains any other provisions BLM considers necessary.

(b)

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

(c)

If you sign a Master Agreement, you waive your right to request a reduction of cost recovery fees.

Notes, amendments, and revision history

Amendments

[70 FR 21058, Apr. 22, 2005, as amended at 81 FR 92209, Dec. 19, 2016; 89 FR 25960, Apr. 12, 2024]

Amendments

[89 FR 25960, Apr. 12, 2024]

Authority

Authority: 43 U.S.C. 1733, 1740, 1763, 1764, and 3003.

Source

Source: 70 FR 21058, Apr. 22, 2005, unless otherwise noted.

Amendments

[70 FR 21058, Apr. 22, 2005, as amended at 81 FR 92209, Dec. 19, 2016; 89 FR 25960, Apr. 12, 2024]

Amendments

[89 FR 25960, Apr. 12, 2024]

§2804.19. How will the BLM manage my Category 6 project?

43 C.F.R. § 2804.19

(a)

For Category 6 applications, you and the BLM must enter into a written agreement that describes how the BLM will process your application and monitor your grant. The BLM may require that the final agreement contain a work plan and a financial plan, and a description of any existing agreements you have with other Federal agencies for cost reimbursement associated with your application or grant.

(b)

In processing your application, the BLM will—

(1)

Determine the issues subject to analysis under NEPA;

(2)

Prepare a preliminary work plan, if applicable;

(3)

Develop a preliminary financial plan, if applicable, which estimates the reasonable costs of processing your application and monitoring your project;

(4)

Collect, in advance and at the BLM's discretion, a deposit for your Category 6 project to initiate processing your application while all of the plans and agreements are being completed;

(5)

Discuss with you—

(i)

The preliminary plans and data;

(ii)

The availability of funds and personnel;

(iii)

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

(iv)

Financial information you must submit; and

(6)

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

(c)

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

(d)

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

(e)

We may collect reimbursement for reasonable costs to the United States for processing applications and other documents under this part relating to the public lands.

Notes, amendments, and revision history

Amendments

[70 FR 21058, Apr. 22, 2005, as amended at 81 FR 92209, Dec. 19, 2016; 89 FR 25961, Apr. 12, 2024]

Authority

Authority: 43 U.S.C. 1733, 1740, 1763, 1764, and 3003.

Source

Source: 70 FR 21058, Apr. 22, 2005, unless otherwise noted.

Amendments

[70 FR 21058, Apr. 22, 2005, as amended at 81 FR 92209, Dec. 19, 2016; 89 FR 25961, Apr. 12, 2024]

§2804.20. How does the BLM determine reasonable costs for Category 6 right-of-way activities?

43 C.F.R. § 2804.20

The BLM will consider the factors in paragraph (a) of this section and § 2804.21 of this subpart to determine reasonable costs. Submit to the BLM field office having jurisdiction over the lands covered by your application a written analysis of those factors applicable to your project unless you agree in writing to waive consideration of those factors and elect to pay actual costs (see § 2804.14(f) of this subpart). Submitting your analysis with the application will expedite its handling. The BLM may require you to submit additional information in support of your position. The BLM will continue to work on your application while you are responding to our request, as long as a deposit has been received by the BLM as provided in § 2804.19(a)(4).

(a)

FLPMA factors. If the BLM determines that a Category 6 cost recovery fee is appropriate for your project, the BLM will apply the following factors as set forth in Section 304(b) of FLPMA, 43 U.S.C. 1734(b), to determine the amount you owe:

(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;

(2)

Monetary value of the rights or privileges you seek;

(3)

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

(4)

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

(5)

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

(6)

Existing agreements between the BLM and other Federal agencies for cost reimbursement associated with such application; and

(7)

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

(b)

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

Notes, amendments, and revision history

Amendments

[70 FR 21058, Apr. 22, 2005, as amended at 81 FR 92209, Dec. 19, 2016; 89 FR 25961, Apr. 12, 2024]

Authority

Authority: 43 U.S.C. 1733, 1740, 1763, 1764, and 3003.

Source

Source: 70 FR 21058, Apr. 22, 2005, unless otherwise noted.

Amendments

[70 FR 21058, Apr. 22, 2005, as amended at 81 FR 92209, Dec. 19, 2016; 89 FR 25961, Apr. 12, 2024]

§2804.21. What other factors will the BLM consider in determining cost recovery fees?

43 C.F.R. § 2804.21

(a)

Other factors. If you include this information in your application, in arriving at your cost recovery fee in any category, the BLM will consider whether:

(1)

Payment of actual costs would—

(i)

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

(ii)

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

(2)

The costs of performing any or all right-of-way activities grossly exceed the costs of constructing the project;

(3)

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

(i)

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

(ii)

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

(4)

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

(5)

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

(6)

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

(7)

For whatever other reason, such as public benefits or public services provided, cost recovery fees would be inconsistent with prudent and appropriate management of public lands and with your equitable interests or the equitable interests of the United States.

(b)

Fee determination. With your written application, submit your analysis of how each of the factors, as applicable, in paragraph (a) of this section, pertains to your application. The BLM will notify you in writing of the fee determination. You may appeal this decision under § 2801.10 of this part.

Notes, amendments, and revision history

Amendments

[70 FR 21058, Apr. 22, 2005, as amended at 89 FR 25961, Apr. 12, 2024]

Authority

Authority: 43 U.S.C. 1733, 1740, 1763, 1764, and 3003.

Source

Source: 70 FR 21058, Apr. 22, 2005, unless otherwise noted.

Amendments

[70 FR 21058, Apr. 22, 2005, as amended at 89 FR 25961, Apr. 12, 2024]

§2804.22. How will the availability of funds affect the timing of the BLM's processing your application?

43 C.F.R. § 2804.22

(a)

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

(b)

The BLM may deny your application if we have not received requested reasonable costs for processing your application within 90 days.

(c)

If your cost recovery agreement provides that a portion of the funds you pay will be used in the hiring of additional staff or contractors, such funds may not be refundable.

Notes, amendments, and revision history

Amendments

[89 FR 35678, May 1, 2024]

Authority

Authority: 43 U.S.C. 1733, 1740, 1763, 1764, and 3003.

Source

Source: 70 FR 21058, Apr. 22, 2005, unless otherwise noted.

Amendments

[89 FR 35678, May 1, 2024]