Final Rule

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V. Procedural Matters

DEPARTMENT OF THE INTERIOR

I. Executive Summary

Bureau of Land Management
43 CFR Part 2800
[BLM_HQ_FRN_MO# 4500177145]
RIN 1004–AE78

Rights-of-Way, Leasing, and
Operations for Renewable Energy
Bureau of Land Management,
Interior.
ACTION: Final rule.
AGENCY:

This final rule updates
procedures governing the BLM’s
renewable energy and right-of-way
programs, focusing on two main topics.
The first topic is solar and wind energy
generation rents and fees, implementing
new authority from the Energy Act of
2020 to ‘‘reduce acreage rental rates and
capacity fees, or both, for existing and
new wind and solar authorizations’’ and
making certain findings required by the
statute. The second topic is expanding
agency discretion to process
applications for solar and wind energy
generation rights-of-way inside
designated leasing areas (DLAs). In
addition to these two main topics, this
final rule makes technical changes,
corrections, and clarifications to the
regulations. This final rule will update
the BLM’s procedures governing the
BLM’s administration of rights-of-way
issued under Title V of the Federal Land
Policy and Management Act (FLPMA),
including for solar and wind energy
applications and development
authorizations.
DATES: This rule is effective July 1,
2024.
FOR FURTHER INFORMATION CONTACT:
Jayme Lopez, Interagency Coordination
Liaison, by phone at (520) 235–4581, or
by email at [email protected] for
information relating to the BLM
Renewable Energy programs and
information about the final rule. Please
use ‘‘RIN 1004–AE78’’ in the subject
line. Individuals in the United States
who are deaf, deafblind, hard of hearing,
or have a speech disability may dial 711
(TTY, TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States.
SUPPLEMENTARY INFORMATION:

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SUMMARY:

I. Executive Summary
II. Background
III. Discussion of Public Comments on the
Proposed Rule
IV. Section-by-Section Discussion

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In 2021, the Bureau of Land
Management (BLM) initiated
preliminary activities related to
rulemaking through listening sessions
seeking public comment on the BLM’s
potential use of the Energy Act of 2020
(43 U.S.C. 3003) authority to ‘‘reduce
acreage rental rates and capacity fees’’ to
‘‘promote the greatest use of wind and
solar energy resources.’’ In May 2022,
the BLM published BLM Manual section
2806.60 as interim guidance to
implement that authority from the
Energy Act of 2020 pending completion
of this final rule. On June 16, 2023, the
BLM published a proposed rule (88 FR
39726 1) in the Federal Register, that,
among other things, proposed updates
to the BLM’s methodology for
determining acreage rents and capacity
fees for solar and wind energy
development projects, including
providing opportunities for reductions
to rents and fees under the authority of
the Energy Act of 2020. The BLM also
proposed more flexibility in how the
BLM processes applications for solar
and wind energy development inside
DLAs, and updates to how to prioritize
solar and wind energy applications. The
proposed rule also suggested technical
changes, corrections, and clarifications
to the existing right-of-way regulations.
After considering comments on the
proposed rule and other factors, the
BLM prepared this final rule.
II. Background
The BLM’s governing regulations for
rights-of-way, including for solar and
wind energy generation, are found at
Title 43 CFR part 2800. These
regulations were last comprehensively
updated by a final rule published in the
Federal Register on December 19, 2016,
‘‘Competitive Processes, Terms, and
Conditions for Leasing Public Lands for
Solar and Wind Energy Development
and Technical Changes and
Corrections’’ (81 FR 92122). That final
rule built upon existing rights-of-way
regulations and policies to expand
BLM’s ability to responsibly facilitate
solar and wind energy development.
Most recently, the BLM amended
components of 43 CFR part 2800 under
its final rule, ‘‘Update of the
Communications Uses Program, Cost
Recovery Fee Schedules, and Section
512 of FLPMA for Rights-of-Way,’’ (89
FR 25922) on April 12, 2024. That final
rule updated BLM regulations to
1 https://www.federalregister.gov/documents/
2023/06/16/2023-12178/rights-of-way-leasing-andoperations-for-renewable-energy.

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enhance the communications uses
program, update its cost recovery fee
schedules, and add provisions
governing the development and
approval of operations, maintenance,
and fire prevention plans and
agreements for rights-of-way for electric
transmission and distribution facilities
(i.e., powerlines). That final rule also
included technical changes to certain
sections that this renewable energy rule
proposed to make changes to, as will be
discussed further in the section-bysection discussion of this final rule.
Solar and Wind Energy Rents and Fees
Title V of FLPMA (43 U.S.C. 1761–
1772) generally requires grant holders,
leaseholders, or both (holders) to ‘‘pay
in advance the fair market value’’ for
use of the public lands, subject to
certain exceptions. The Energy Act of
2020, 43 U.S.C. 3003, introduced a new
exception to FLPMA’s fair market value
requirement, authorizing the Secretary
to ‘‘reduce acreage rental rates and
capacity fees, or both, for existing and
new wind and solar authorizations’’ if
the agency makes certain findings.
These findings can include that the
existing rates ‘‘exceed fair market
value,’’ ‘‘impose economic hardships’’
or ‘‘limit commercial interest in a
competitive lease sale or right-of-way
grant,’’ or ‘‘that a reduced rental rate or
capacity fee is necessary to promote the
greatest use of wind and solar energy
resources.’’ 43 U.S.C. 3003(b)(1)(A)–(C)
and 3003(b)(2).
As reflected in this final rule, the
BLM determined that the changes to the
acreage rents and capacity fees for solar
and wind energy right-of-way
authorizations are needed to ‘‘promote
the greatest use of wind and solar
energy resources’’ and maximize
‘‘commercial interest’’ in lease sales and
right-of-way grants. Reducing the
acreage rent and capacity fee in this
final rule will encourage solar and wind
energy development with a goal of
increasing the share of clean energy that
is part of the United States’ domestic
power infrastructure as authorized by
the Energy Act of 2020 and directed by
Executive Orders 14008 and 14057. This
will be done by decreasing the costs for
developers to construct and operate
solar and wind energy development,
allowing them to increase investments
in new facilities and thus promote
additional development. These changes
will result in the most additional
deployment of solar and wind energy
development (see Regulatory Impact
Analysis 3.1.D). The BLM’s
determination is supported by a
regulatory impact analysis of economic
impacts, public comments received on

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Federal Register / Vol. 89, No. 85 / Wednesday, May 1, 2024 / Rules and Regulations
the proposed rule, and the BLM’s
experience with solar and wind energy
development on public lands.
Reductions in costs will also benefit
smaller-scale projects or projects that
are on the margins of being
economically profitable. Additionally,
the BLM expects that the rule will not
only increase interest among renewable
energy developers to use BLMadministered public lands, but it will
decrease the cost for developers such
that they may be able to invest in
additional wind and solar projects on
Tribal, State, or private lands. Further,
the decrease in cost to developers is
expected to translate, over time, to a
reduction in the average cost per MW of
solar and wind energy, which will make
solar- and wind-generated energy more
competitive with other energy sources
and will stabilize or even reduce the
cost of energy to consumers, even as the
cost of other energy sources may
experience increased volatility.
The BLM also determined that the
authority provided under the Energy
Act of 2020, 43 U.S.C. 3003, supports
two other reductions to the capacity fees
under two potentially qualifying
circumstances: (1) a Domestic Content
reduction when a grant holder or lease
holder demonstrates the use of
American-made iron, steel, construction
materials, or manufactured products in
the construction of the project
consistent with the requirements set
forth in this final rule; and (2) a
reduction for Project Labor Agreements
(PLAs), i.e., when the holder uses PLAs
to hire labor for the development and
construction of a solar or wind
development. The additional, voluntary
reductions offered in this final rule
advance the Energy Act of 2020 goal of
promoting the greatest use of solar and
wind energy resources. First, a Domestic
Content reduction will provide an
incentive to use components made or
manufactured in the United States in
the construction of the solar or wind
energy development project by
offsetting those costs, which, if broadly
adopted, could increase demand for
domestically produced renewable
energy parts and materials and, over the
long term, lead to decreased costs for
parts and materials, decreased reliance
on potentially volatile foreign-sourced
parts and materials, and ultimately
increased economic certainty for and
promotion of wind and solar energy
resources on public lands. Second, the
PLA reduction will incentivize good
labor practices and in turn lead to
responsible and productive
construction, minimize the potential
duration, and improve construction
standards, thereby promoting the

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greatest use of wind and solar resources.
These reductions will also incentivize
project proponents to advance other
Congressional and Administration goals
that strengthen the use of American
products and manufacturing and the
associated labor markets.
Therefore, reductions in the final rule
that rely upon authority from the Energy
Act of 2020 include an 80 percent
reduction to the MWh rate when setting
the capacity fee and the two additional
reductions to the capacity fee for which
right-of-way holders may qualify: a 20
percent Domestic Content reduction and
a 20 percent PLA reduction. The MWh
rate reduction applies to projects when
they are permitted (or grants or rightsof-way are re-issued under 2806.51(c))
and continues for the life of the grant.
The MWh rate reduction will be 80
percent through 2035, 60 percent for
new authorizations in 2036, 40 percent
for new authorizations in 2037, and 20
percent for new authorizations in 2038
and beyond. Additional information on
the MWh rate is found under the
discussions of §§ 2801.5 and 2806.52(b)
of this preamble, as well as more
broadly under part 2806 of this
preamble.
This final rule also codifies a new
rate-setting methodology for solar and
wind energy development projects.
Under this rule, the BLM will collect
from right-of-way holders the greater of
either an acreage rent or a capacity fee.
The BLM will assess acreage rent by
applying the rate schedule, based on a
survey of values for pastureland from
the National Agricultural Statistics
Service (NASS) Cash Rents Survey, to
the number of acres that the right-ofway authorizes for use. Capacity fees
reflect the value of generating electricity
from solar and wind energy resources,
which are quantified by the number of
megawatt hours (MWh) of electricity
produced from public lands. In this
rule, the BLM has changed the
definition of capacity to move away
from the maximum capacity that a solar
facility could produce and towards
ensuring that the capacity fee reflects
the actual capacity for solar or wind
energy generation of a site covered by a
given right-of-way grant or lease, taking
into consideration environmental or
other factors that may impact generation
capacity of the site, including weather,
servicing, and Acts of God. As provided
in the final rule, the BLM will
determine the capacity fee by
considering the wholesale prices for
major trading hubs serving 11 western
States, and documentation concerning
the price received by the right-of-way
holder under a Power Purchase
Agreement.

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The final rule provides that, when
issuing a grant or lease for solar or wind
energy development, or a renewal of
such grant or lease, the BLM will set the
per-acre rate and the MWh rate
(including applicable reductions). The
acreage rent and capacity fee will be
adjusted annually, however, using an
annual adjustment factor set at the
beginning of the grant or lease term.
Upon renewal of a right-of-way, the peracre rate and the MWh rate and
reductions would be updated based on
the then-current rates, as well as any
applicable reductions for which the
right-of-way holder qualifies at that
time.
Existing right-of-way holders may
elect to continue using their current rate
setting methodology, which may be
updated periodically for changes in the
market, or change to the new rate setting
methodology in this final rule.
Otherwise, the new rate setting
methodology would only apply to new
or renewed rights-of-way. If an existing
right-of-way holder elects to change to
the new rate setting methodology, that
methodology will apply until the end of
the right-of-way term.
This final rule bases the capacity fee
for solar and wind energy generation
facilities on actual energy generation at
each facility rather than on nameplate
capacity. The BLM believes this change
more accurately reflects the actual
capacity for energy production of an
individual project based on a
developer’s selection of technology,
project design, and the solar or wind
resource available at a particular site.
This change to the capacity fee indexes
the required payment to the projects’
energy generation, being greater when
the project generates more energy and
less when it generates less.
This rule improves payment
predictability for grant and leaseholders
by revising the key data used for
determining the acreage rent and the
capacity fee—the state-wide pastureland
rent values and the wholesale price of
electricity—at the time the right-of-way
is issued. In doing so, the per-acre and
MWh rates are set for the term of the
right-of-way and only adjusted by the
annual adjustment factor and, in the
case of the capacity fee, by the holder’s
actual annual energy production. See
preamble §§ 2806.50 and 2805.52 for a
more detailed discussion of the BLM’s
proposed methodology for determining
the acreage rent and capacity fee.
Solar and Wind Energy Applications
Inside Designated Leasing Areas
In this final rule, the BLM clarifies
that it will review and process
applications, including on a non-

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competitive basis, for proposed solar
and energy generation rights-of-way
inside DLAs, which are defined at 43
CFR 2801.5(b). The BLM retains
discretion to conduct competitive
processes, either inside or outside of
DLAs, where the authorized officer
decides to do so. In the proposed rule,
the BLM used the terms ‘‘competitive
offer’’ and ‘‘competitive process’’
interchangeably. To provide clarity and
minimize confusion, the final rule uses
only the term ‘‘competitive process’’ to
describe the method by with the BLM
will offer parcels in a competitive
bidding process. To learn more about
BLM’s DLAs, see the 2012 Western
Solar Plan (https://blmsolar.anl.gov/
documents/solar-peis/), which
identified approximately 285,000 acres
of agency preferred development
locations (i.e., DLAs) with high
potential for solar energy production
and low conflicts with other resources
and uses. Subsequently, the BLM
designated approximately 388,000 acres
of preferred development locations for
solar energy in California through the
2016 Desert Renewable Energy
Conservation Plan (https://
blmsolar.anl.gov/documents/drecp/)
and over 192,000 acres of preferred
development locations for solar, wind,
and geothermal energy in Arizona
through the 2017 Restoration Design
Energy Project. Currently, the BLM is in
the process of updating its 2012 Western
Solar Plan to, among other things, make
programmatic planning decisions for
solar development on BLMadministered lands in 11 western states,
including Arizona, California (exclusive
of the area covered by the Desert
Renewable Energy Conservation Plan),
Colorado, Idaho, Montana, Nevada, New
Mexico, Utah, Oregon, Washington, and
Wyoming (See https://
eplanning.blm.gov/eplanning-ui/
project/2022371/510).
Under this final rule, if no
competitive interest exists for a
particular parcel, the BLM may issue
leases without a competitive process.
This change to the rule provides the
BLM with increased flexibility and
discretion to issue grants and leases
through either competitive or noncompetitive processes across all public
lands inside and outside of DLAs,
which is expected to maximize interest
in renewable energy leasing and
accelerate the deployment of solar and
wind energy on the public lands. See
subpart 2809 for a discussion of the
competitive process for solar and wind
energy.

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Need for the Rule
FLPMA provides the BLM with
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’’ unless otherwise
provided by law (43 U.S.C. 1732(a)).
Further, FLPMA authorizes the BLM to
issue rights-of-way on the public lands
for electric generation systems,
including solar and wind energy
generation systems, and mandates that
the United States receive fair market
value for the use of the public lands and
their resources unless otherwise
provided for by statute (43 U.S.C.
1764(g)).
On December 27, 2020, the Energy
Act of 2020 was enacted, establishing a
minimum goal of ‘‘authoriz[ing]
production of not less than 25 gigawatts
of electricity from wind, solar, and
geothermal energy projects by not later
than 2025’’ on Federal lands. 43 U.S.C.
3004. Current information regarding the
BLM’s approved energy development
projects and number of gigawatts is
available on its website.2 The Energy
Act of 2020 also provides the BLM with
new authority to reduce rates below fair
market value based on specific findings,
including ‘‘that a reduced rental rate or
capacity fee is necessary to promote the
greatest use of wind and solar energy
resources’’ 43 U.S.C. 3003(b)(2). The
BLM has determined that reduced rates
and fees are necessary to promote the
greatest use of wind and solar energy
resources, and this rule seeks to
implement such reductions consistent
with the direction in the Energy Act of
2020.
On January 27, 2021, President Biden
issued Executive Order (E.O.) 14008,
‘‘Tackling the Climate Crisis at Home
and Abroad.’’ Section 207 of E.O. 14008,
titled ‘‘Renewable Energy on Public
Lands and in Offshore Waters,’’
instructs DOI ‘‘to increase renewable
energy production on (public) lands.’’
The changes in this rulemaking will
provide clearer direction for the BLM in
processing proposed renewable energy
right-of-way applications on public
lands while also supporting the goals of
the Energy Act of 2020 and E.O. 14008.
Statutory Authority
Section 310 of FLPMA (43 U.S.C.
1740) authorizes the Secretary to
promulgate regulations to carry out the
purposes of FLPMA and other laws
applicable to public lands. Section 302
2 https://www.blm.gov/programs/energy-andminerals/renewable-energy/active-renewableprojects.

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of FLPMA (43 U.S.C. 1732) also
provides comprehensive authority for
the administration and protection of the
public lands and their resources and
directs that the public lands be managed
‘‘under principles of multiple use and
sustained yield,’’ unless otherwise
provided by law (43 U.S.C. 1732(a)).
Sections 501, 504, and 505 of FLPMA
authorize the Secretary to grant rightsof-way on public lands; to issue
regulations governing such rights-ofway and charge rent for such rights-ofway; and to impose terms and
conditions on rights-of-way grants,
respectively (43 U.S.C. 1761, 1764, and
1765). Sections 304 and 504 of FLPMA
(43 U.S.C. 1734(b) and 1764(g)) also
authorize the BLM to collect funds from
right-of-way applicants or holders to
reimburse the agency for its costs
incurred while working on a proposed
or authorized right-of-way. 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)). See
Title V of FLPMA (43 U.S.C. 1761–
1772).
The Energy Act of 2020 authorizes the
Secretary to reduce acreage rental rates
and capacity fees if the Secretary makes
certain findings, which can include that
the existing rates ‘‘impose economic
hardships’’ or ‘‘limit commercial
interest in a competitive lease sale or
right-of-way grant,’’ or ‘‘that a reduced
rental rate or capacity fee is necessary
to promote the greatest use of wind and
solar energy resources’’ (43 U.S.C.
3003).
III. Discussion of Public Comments on
the Proposed Rule
This section of the preamble briefly
summarizes broad and general
comments on the proposed rule and the
BLM’s responses. Comment responses
within this section of the preamble have
been grouped and summarized by
category that would apply to one or
more sections of this final rule. You will
find additional comments that are more
specific to sections of this final rule, and
their responses, in Section IV (Sectionby-Section Discussion) of this preamble.
Solar and Wind Energy Rents and
Fees—Part 2806
Summary of Comments: While several
commenters supported the proposal for
reduced rents and fees, other
commenters questioned the need for
reduced rents and fees and requested
more research and discussion to
determine if current costs exceed fair
market value, impose economic
hardships, limit commercial interest, are
not competitively priced, or

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disincentivize the greatest use of wind
and solar energy resources.
Response: Under the Energy Act of
2020 (43 U.S.C. 3003(b)), Congress
recognized the need to promote wind
and solar energy projects on Federal
lands, giving the Secretary the authority
to reduce acreage rental rates, capacity
fees, or both if she determines that ‘‘the
existing rates (A) exceed fair market
value; (B) impose economic hardships;
(C) limit commercial interest in a
competitive lease sale or right-of-way
grant; or (D) are not competitively
priced compared to other available
land;’’ or that a reduction is ‘‘necessary
to promote the greatest use of wind and
solar energy resources.’’ 43 U.S.C.
3003(b)(1)–(2). The BLM considered
whether capacity fee reductions are
necessary to promote the greatest use of
wind and solar energy resources and has
determined reductions are necessary.
This final rule describes how the
capacity fee reductions will increase
interest in and incentivize wind and
solar energy development on public
lands and thereby accelerate
deployment of renewable energy
resources in the United States. This
final rule also includes changes to the
BLM’s rate-setting methodology that
improve future rate predictability (see
Regulatory Impact Analysis) and reduce
potential for economic hardships.
Summary of Comments: Commenters
suggested that the BLM should not
speculate on the economic impacts of
the proposed rule or requested
additional analysis and use of
additional sources to back up statements
made.
Response: The BLM prepared an
economic analysis for the proposed rule
and then completed a Regulatory Impact
Analysis for this final rule that provides
a transparent analysis of the anticipated
economic consequences for this
rulemaking. This analysis informs the
agency decision, including whether this
rulemaking would accomplish its goals.
For further information on the economic
impacts of this rule, please see the
Regulatory Impact Analysis that is
available with a search at
regulations.gov of this Regulatory
Identifying Number ‘‘1004–AE78.’’
Summary of Comments: Commenters
suggested rents and fees should be
increased rather than decreased due to
the environmental impacts of solar and
wind energy development, as well as
their incompatibility with other uses.
Some further suggested that reducing
fees on projects that are on the margins
of being profitable creates the risk of
projects failing and not being properly
removed and rehabilitated.

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Response: The BLM disagrees with
the commenters’ suggestion that rents
and fees should be increased rather than
decreased. As explained in more detail
in the previous section on Solar and
Wind Energy Rents and Fees, the Energy
Act of 2020 (43 U.S.C. 3003) provides
the BLM with authority to reduce
acreage rents and capacity fees,
including for the purpose of promoting
the greatest use of wind and solar
resources. The BLM has determined that
reductions in acreage rents and capacity
fees will promote wind and solar
resources and is within the BLM’s
discretion under the Energy Act of 2020.
Further, the BLM has carefully
considered its final rule and concluded
that decreasing rents and fees is
necessary to accomplish the goals set
forth by Congress in the Energy Act of
2020, by the President in E.O. 14008,
and by the Secretary in Secretary’s
Order 3399. Congress set a national goal
for renewable energy production on
Federal land, directing the Secretary to
seek to issue permits authorizing
production of not less than 25 gigawatts
of electricity from wind, solar, and
geothermal energy projects on Federal
land by not later than 2025. 43 U.S.C.
3004. Congress further provided the
Secretary with discretion to reduce the
acreage rental rates and capacity fees,
including where necessary to promote
the greatest use of solar and wind
energy resources on BLM-administered
public lands, which would advance the
goals set by the Energy Act of 2020, as
well as those in E.O. 13990, ‘‘Protecting
Public Health and the Environment and
Restoring Science to Tackle the Climate
Crisis,’’ 86 FR 7037; E.O. 14008,
‘‘Tackling the Climate Crisis at Home
and Abroad,’’ 86 FR 7619; and
Secretary’s Order 3399, ‘‘DepartmentWide Approach to the Climate Crisis
and Restoring Transparency and
Integrity to the Decision-Making
Process.’’ The use of public lands for
energy generation systems is specifically
contemplated in the FLPMA and the
Energy Act of 2020. The BLM considers
the potential environmental effects of
solar or wind energy development when
conducting land use planning and
evaluating project applications, not
when identifying appropriate rental
rates and fees for development projects.
The BLM considers and analyzes
environmental impacts of proposed
energy development, including
appropriate mitigation measures, before
authorizing any such project.
Additionally, the BLM does not believe
there is any correlation between
reductions in capacity fees and the
ability of project proponents to properly

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remove and remediate facilities. Any
applicable fee reductions contemplated
in this rule would not alter a project
proponent’s obligations to provide for
adequate bonding associated with
construction and remediation associated
with terminated or abandoned facilities,
as required by 43 CFR 2805.12(b),
2805.20, and 2809.18(e).
Summary of Comments: Commenters
noted that reducing rents and fees for
renewable energy projects on public
lands would economically impact the
developers of similar projects on private
or Tribal lands and could impact
property values.
Response: This final rule changes the
BLM’s administrative processes and
rates for solar and wind energy
development projects on public lands.
While the final rule is intended to
encourage solar and wind energy
development on the public lands, it
would be speculative for the BLM to
attempt to analyze whether and to what
extent there may be secondary impacts
to solar and wind energy development
on private or Tribal property. This is
particularly the case due to the wide
variety of factors that influence
developers’ decisions about whether
and where to pursue solar and wind
energy projects, including, but not
limited to, state, Tribal, and local
permitting requirements, the ability to
enter into power purchase or offtake
agreements, the availability of existing
or proposed transmission, and projectspecific financing considerations.
Notwithstanding these different factors,
the final rule will generally decrease
costs for developers on public lands,
which may permit them to pursue
additional opportunities for
development on Tribal, state, and
private lands and thereby further
promote the greatest use of solar and
wind energy.
Summary of Comments: Some
comments asked about rate changes that
would occur after 2036. Commenters
raised four specific issues that the 2036
rate change causes. First, some
commenters asserted that rates after
2036 would run higher than fair market
value and are therefore a violation of
FLPMA’s requirement that the BLM
charge no more than fair market value.
Second, some commenters asserted that
the Secretary’s authority to reduce rates
under the Energy Act extends beyond
2035, and America’s need for renewable
energy, set by Congressional and
Presidential goals, would require
incentives beyond 2036. Third, some
commenters asserted that the 2036 rate
increase would discourage right-of-way
renewals after that year. Last, some
commenters asserted that the BLM has

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not adequately explained why it is
choosing to phase out the final rule’s
rate reductions in 2036.
Response: This final rule helps lead
the way to accomplishing the national
goal of a carbon pollution-free
electricity sector by 2035, as highlighted
in Executive Orders 14008 and 14057.
Based on its review of comments, the
BLM has modified the sunset provision
in the final rule. Instead of immediately
transitioning the capacity fee reduction
from 80 percent to 20 percent, the final
rule will lower the reduction by 20
percentage points per year over a period
of three years starting in 2036.
Instituting a phased sunset period to the
80 percent reduction in the capacity fee
is appropriate as the renewable energy
industry may no longer need this
reduction to achieve the greatest use of
wind and solar on public lands, and
progress toward our national goal of a
carbon-pollution free electricity sector
may indicate that a reduction is no
longer warranted. After the sunset
period ends, this final rule will continue
to provide a 20 percent reduction for
solar and wind energy development
projects. The BLM will evaluate
progress towards reaching national goals
and the benefit of the reduction before
2036 and could reinitiate rulemaking to
adjust incentives, including extending
them beyond 2036.
The BLM believes that knowing
beforehand what the rates are for a
facility and the increased predictability
of those rates in the future will improve
the economic certainty for project
development and support a developer’s
or operator’s decisions in power
purchasing, financing, and other
agreements that are necessary for a
successful renewable energy project.
This would be the same for existing
authorization holders who choose to
change to this new rate setting
methodology, as well as for
authorization renewals. Lastly, the BLM
believes that the economics for
renewable energy will continue to
improve over time, and that the
magnitude of such a reduction in 2036
is uncertain.
Lands Available for Solar and Wind
Energy Applications
Summary of Comments: Some
commenters recommended that the
BLM further restrict renewable energy
development outside of solar energy
zones and prohibit such development
close to sensitive habitats or recreation
areas. Commenters stated that
competitive offers should not be
allowed outside of designated zones.
Response: Through the National
Environmental Policy Act (NEPA)

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process, the BLM considers the
environmental impacts of proposed uses
on the public lands, including solar and
wind energy development, to inform the
BLM decisions to deny, approve, or
approve with modification the proposed
use. The BLM will include terms and
conditions as appropriate to address
resource and environmental impacts of
the project. The BLM also performs
broader analysis to inform whether
certain lands may be made available for
that use through the land use planning
process required by FLPMA, 43 U.S.C.
1712. As described further below, the
BLM’s ongoing planning process to
update to its 2012 Western Solar Plan 3
will amend BLM land use plans in 11
Western States (Arizona, California,
Colorado, Idaho, Montana, Nevada, New
Mexico, Oregon, Utah, Washington, and
Wyoming), or portions thereof, to
identify new priority areas for solar
energy development, variance areas, and
public lands that are excluded from
solar energy development, and to
update requirements that holders must
comply with, including for sensitive
resources and uses that the BLM has
previously authorized. This rulemaking
does not make land use planning
decisions—including determining
whether areas should be excluded from
solar and wind energy development
because they would impact sensitive
habitats or recreation areas—which are
completed under a separate BLM
process. This rulemaking does not
change the competitive process outside
of designated zones, but rather aligns
the competitive process for solar and
wind applications across all areas
within and outside of designated areas.
The BLM believes that where
competitive interest exists—for
example, in the form of multiple
overlapping applications or a high level
of interest in a general area—
competitive processes should be used,
regardless of whether the lands are in a
DLA, to advance the projects that are
most likely to proceed to development.
Summary of Comments: Commenters
noted that the BLM references solar
energy zones from the 2012 Western
Solar Plan in the proposed rule without
discussing that the 2012 Plan is now
under revision and will include an
additional 5 states (Idaho, Montana,
Oregon, Washington, and Wyoming).
Commenters requested that the BLM
coordinate the rulemaking process with
the land use planning effort
accompanying the Western Solar
3 https://www.federalregister.gov/documents/
2022/12/08/2022-26659/notice-of-intent-to-preparea-programmatic-environmental-impact-statementto-evaluate-utility-scale.

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Programmatic Environmental Impact
Statement (Western Solar PEIS),
recognizing the various alternatives
being considered and the impacts that
each (Western Solar PEIS vs. proposed
rule) have on the other. Commenters
believed many of the changes in this
rule that refer to decisions or processes
that occur prior to project approval are
currently being considered as part of the
Western Solar PEIS plan amendment
process and may be better suited for the
PEIS.
Response: This rulemaking effort and
the Western Solar PEIS are two separate
actions that complement one another,
but they have different goals, are subject
to different authorities, and will address
different aspects of the ROW
authorization process. This final rule
sets out how the BLM will process
applications and calculate rents, in
order to implement new authorities and
meet National goals established in the
Energy Act and directed by Executive
Order 14008 for both wind and solar
energy development. This rulemaking
does not make land use planning
decisions. In contrast, the plan
amendment process associated with the
Western Solar PEIS focuses exclusively
on solar development on public lands
through a separate process governed by
Section 202 of FLPMA (43 U.S.C. 1712)
and the BLM resource management
planning regulations at 43 CFR 1610, et
seq. to update the BLM’s Western Solar
Plan. That programmatic land use
planning process will consider updating
the BLM’s Western Solar Plan, with a
primary focus on identifying the best
locations for utility-scale solar energy
development, as well as restrictions and
mitigation applicable to such
development, on BLM-managed public
lands in 11 Western States. The BLM’s
land use planning decisions, including
any amendments to plans, will comply
with applicable laws and regulations.
Comment Summary: The BLM
understands from comments it has
received that some believe that the
proposed rule has insufficient analysis
under E.O. 12866. These comments
suggest that the BLM must coordinate
more closely with local governments to
collect economic data.
Response: The BLM appreciates the
interest and engagement from partners
across the multiple landscapes in the
United States, however the BLM
disagrees with comments that additional
coordination must be performed with
local governments for this rulemaking.
This rule governs the BLM’s
administration of applications and
authorizations for solar and wind energy
development projects on public lands.
While the rule does have some financial

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implications with adjustments to the
BLM’s rates, these are transfer payments
as explained more fully in the
Regulatory Impact Analysis
accompanying this final rule and would
not materially affect the resources
available to the American economy. The
BLM will continue to engage with the
public it serves, and its many partners
through BLM’s public processes,
including project-specific analysis and
programmatic and land use planning
analysis through NEPA. No change
made based on these comments.
Need for the Rule
Summary of Comments: Commenters
requested the BLM include a more
meaningful explanation of the necessity
of this rulemaking, including technical
data that supports a need for increased
preferences and favorable treatment for
lease terms. Commenters stated that
solar development is not in line with
FLPMA and does not allow for multiple
use on public lands.
Response: The BLM received new
authority and guidance from Congress
(Energy Act of 2020) and direction from
the President (Executive Order 14008,
among others) to promote renewable
energy generation on public lands. This
rule implements the new authority and
direction for management of the public
lands. The BLM disagrees with the
comments suggesting that solar energy
development is inconsistent with
FLPMA’s multiple use mandate. In
managing the public lands, the BLM is
not required to make every parcel of
land available for all purposes.
Consistent with FLPMA’s multiple use
mandate, the BLM has discretion
through land use planning to identify
areas that are available for, or excluded
from, solar or wind energy development
and to evaluate each proposed solar or
wind energy development through a
site-specific environmental analysis,
including the need for environmental
mitigation, as part of the decisionmaking process prior to issuing a grant
or lease.
Summary of Comments: Other
commenters stated that they believe the
BLM must improve its approach to
facilitating renewable energy
development to meet congressional
goals. Other commenters expressed a
belief that the free market would
provide better solutions to greenhouse
gas emissions and the climate crisis
without authorizing projects on public
land or providing additional incentives
to site projects on public land.
Response: The BLM does not agree
that the free market alone would
provide better solutions to greenhouse
gas emissions and the climate crisis.

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Additionally, the approach suggested by
commenters would be inconsistent with
direction from Congress and the
President to promote renewable energy
generation on public lands. Particularly,
the Energy Act of 2020, which is aimed
at facilitating and promoting further
development of wind and solar energy
on Federal lands, specifically directs the
BLM to ‘‘issue permits that, in total,
authorize production of not less than 25
gigawatts of electricity from wind, solar,
and geothermal energy projects by not
later than 2025, through management of
public lands and administration of
Federal laws,’’ 43 U.S.C. 3004(b)
(emphasis added). Additionally, as
described above, on January 27, 2021,
President Biden issued E.O. 14008,
‘‘Tackling the Climate Crisis at Home
and Abroad.’’ Section 207 of E.O. 14008,
titled ‘‘Renewable Energy on Public
Lands and in Offshore Waters,’’
instructs DOI ‘‘to increase renewable
energy production on [public] lands.’’
This final rule updates and improves
the BLM’s approach to facilitating
renewable energy development on
public lands based on lessons learned
from implementation of the 2016 rule as
well as changes in National renewable
energy goals and the maturation of
energy market over the past eight years.
This update to the BLM’s rules
improves the BLM’s orderly
administration of public lands and
helps reach the goals set by Congress
and at the direction of the President.
The BLM expects to continue working
with the public to provide better
solutions to resource concerns, such as
greenhouse gas emissions and climate
change, to best manage the public lands
and its resources. Addressing such
resource solutions are not part of this
rulemaking.
Summary of Comments: Commenters
stated that the current market
conditions, state and Federal mandates
and regulations, and demand for green
energy makes reducing fees unnecessary
and that the BLM has failed to explain
why the reductions are necessary.
Response: The changes in this rule
clarify how the BLM will process
renewable energy right-of-way
applications on public lands while
supporting the goals of the Energy Act
of 2020 and direction from the President
(E.O. 14008 and 14057). Through the
BLM’s experience administering solar
and wind energy development rights-ofway, the BLM understands the
importance of stable and predictable
rates for the term of an authorization.
The BLM expects that the rule will help
to meet national renewable goals more
expeditiously. The BLM expects that the
rule will not only increase interest

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among renewable energy developers to
use BLM-administered public lands, but
will decrease the cost for developers
such that they may be able to invest in
additional wind and solar projects on
Tribal, State, or private lands. The BLM
explains more fully the need for the rule
and its reductions in the section-bysection discussion portion of this rule
under subpart 2806.
Summary of Comments: A commenter
stated that section 3003(b) of the Energy
Act does not explicitly authorize the
Secretary of the Interior to reduce rightof-way rents and fees below fair market
value and that Congress did not
explicitly repeal, amend, or supersede
FLPMA’s unequivocal fair market value
requirement. They questioned if the
Energy Act supersedes FLPMA’s fair
market value requirement for rights-ofway.
Response: The BLM disagrees with
the comments suggesting that the
Energy Act of 2020 does not authorize
the Secretary to reduce right-of-way
rents and fees below fair market value.
First, a plain reading of the Energy Act
authorizes the Secretary to reduce rental
rates and capacity fees below fair market
value. Specifically, it authorizes the
Secretary to reduce ‘‘acreage rental
rates, capacity fees, and other recurring
annual fees in total’’ for solar and wind
energy generation projects on BLMmanaged public lands under a broad set
of circumstances. Additionally,
Congress presumably understood the
fair market value requirement in
FLPMA, and the discretion in the
Energy Act to reduce rental rates and
capacity fees is as a modification of that
existing requirement. The reductions
authorized in Section 3003 of the
Energy Act would be meaningless if
Congress intended the reductions to be
limited by FLPMA’s general
requirement to collect fair market value
for rights-of-way.
Statutory Authority
Summary of Comments: One
commenter expressed concern that this
proposed rule will set precedent for a
similar issue DOI is trying to address
under the Fluid Mineral Leases and
Leasing process.
Response: This final rule modifies
procedures that are specific to
identifying rental rates and capacity fees
for wind and solar authorizations; it
does not apply to or set a precedent for
other BLM authorizations or processes,
including those under the Mineral
Leasing Act (MLA).
Summary of Comments: Another
commenter requested information about
how this final rule interacts with other
BLM rules and administration

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directives, including the Conservation
and Landscape Health Rule, Secretary’s
Order 3362, Improving Habitat Quality
in Western Big-Game Winter Range and
Migration Corridors (Feb. 9, 2018), and
BLM Instruction Memorandum 2023–
005 Change 1, Habitat Connectivity on
Public Lands (Nov. 18, 2022).
Response: This final rule updates the
processes used in the BLM’s orderly
administration of the public lands. Any
decisions made in connection with
right-of-way grants following the
procedures laid out in this rule will also
be subject to all other applicable legal
requirements and administrative
directives, including the Conservation
and Landscape Health Rule, Secretary’s
Order 3362, and BLM policies and
guidance.
National Environmental Policy Act
(NEPA)
Comment Summary: Commenters
requested the BLM prepare a NEPA
analysis to evaluate the environmental
effects of the final rule, including
because extraordinary circumstances (43
CFR 46.215) apply and therefore
reliance on a Categorical Exclusion is
not appropriate.
Response: The BLM disagrees with
comments that an environmental
assessment or environmental impact
statement analysis under NEPA is
required, or that extraordinary
circumstances apply to this rulemaking.
The BLM has determined that the
categorical exclusion at 43 CFR
46.210(i), which excludes, ‘‘regulations
. . . that are of an administrative,
financial, legal, technical, or procedural
nature; or whose environmental effects
are too broad, speculative, or conjectural
to lend themselves to meaningful
analysis and will later be subject to the
NEPA process, either collectively or
case-by-case,’’ applies to this final rule.
The BLM has reviewed the
extraordinary circumstances listed in 43
CFR 46.215 and determined that none
applies. This categorical exclusion
documentation is provided on the
BLM’s ePlanning web page at the
following URL: https://
eplanning.blm.gov/eplanning-ui/
project/2016102/510. As such, the final
rule fits within the categorical exclusion
for rules, regulations, or policies to
establish bureau-wide administrative
procedures, program processes, or
instructions. This final rule does not
authorize any project or other on-theground activity and therefore would
have no significant individual or
cumulative effect on the quality of the
human environment. At such time that
specific solar or wind energy
development projects are proposed, the

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BLM will consider those proposed
actions in compliance with NEPA.
Comment Summary: Some
commenters suggested that there should
not be a requirement of a published
environmental assessment (EA) or
environmental impact statement (EIS)
before foreclosing the opportunity to
hold a competitive offer. Some
commenters believed the BLM should
require analysis of a competitive offer
through an EIS to identify and disclose
the impacts of such an action.
Response: The BLM is not required to
perform environmental analyses on
whether to hold a competitive process;
nonetheless, in § 2809.12(b) the BLM
reserves the right to complete a NEPA
analysis before holding a competitive
process. The BLM does not typically
complete a NEPA analysis for a
competitive leasing process, but at least
one NEPA analysis will be completed
before authorizing solar or wind energy
development. Determining that there
may be competitive interest and
utilizing a competitive process is
administrative and procedural only,
does not trigger the need to prepare an
environmental analysis under NEPA or
have any significant effect on the human
environment, and is simply based on
whether there is adequate interest from
more than one applicant. The BLM
would complete a land use planning
and NEPA analysis were it to change
allocations in a current land use plan to
allocate areas of public lands to either
allow or exclude solar or wind energy
development—a process the BLM is
currently undertaking regarding solar
energy for 11 western states by updating
the 2012 Western Solar Plan through a
PEIS.
For example, in the case of solar or
wind energy development leasing, the
BLM must first identify public lands as
a designated leasing area for solar or
wind energy development through a
land use planning process with an
associated NEPA analysis. If the BLM
receives competitive interest in those
lands, the BLM would hold a
competitive process to determine the
presumptive leaseholder. Alternatively,
the BLM may determine that the NEPA
analysis for a designated leasing area
should be updated to reflect new or
changing circumstances and in turn may
offer such lands competitively to
determine a preferred applicant. Upon
determining the presumptive
leaseholder or preferred applicant, the
BLM would then complete a NEPA
analysis before determining whether to
authorize the wind or solar energy
generation project proposed. For either
the presumptive leaseholder or
preferred applicant, even if the BLM

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does not complete a NEPA analysis to
consider whether to hold a competitive
process, the resulting project will be
subject to multiple NEPA analyses
before it is approved.
Additional comments: Additional
comments and their responses are found
in Section IV (Section-by-Section
Discussion) of this preamble.
The BLM is a multiple-use agency,
and solar and wind energy development
is one of the many uses for which the
BLM manages the public lands. While
all comments that the BLM received are
important, this final rule does not
respond to those that are out of scope
for the action the BLM is taking.
Comments that are out of scope for this
rulemaking include those regarding
project-specific considerations, state
laws and authorities, national energy
policies and priorities that do not affect
solar and wind energy or the public
lands, engaging in specific partnerships,
general statements of support or
opposition to the rule which do not
require a detailed response, and
availability and distribution of financial
resources, among others that are not
specific to the BLM’s administration of
solar and wind energy development
applications and rights-of-way and ratesetting.
The BLM will continue to engage with
the public and Tribal, Federal, State,
and local government partners on the
BLM’s management of its public lands,
as appropriate. Subsequent actions that
the BLM may take will be subject to the
policies, laws, and regulations in place
at that time, including those for
consultation, environmental review, and
entering into agreements or partnerships
with others.
IV. Section-by-Section Discussion
43 CFR Part 2800 Rights-of-Way
Authorized Under FLPMA
Part 2800 of the CFR describes
requirements for rights-of-way issued
under Title V of FLPMA. This final rule
revises the per acre rent and per MWh
capacity fee schedules for solar and
wind energy development rights-of-way.
It updates the application process for
public lands and focuses the BLM’s
competitive processes to places where
there is competitive interest. This final
rule also includes the principles for
prioritizing solar and wind energy
applications, establishing criteria for a
‘‘complete application,’’ and corrects or
clarifies existing regulations.
The BLM conducted extensive public
and Tribal outreach on this rule both
prior to its publication as a proposed
rule and during the public comment
period on the proposed rule. Prior to the

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publication of the proposed rule, the
BLM notified Tribes in August 2021 of
its upcoming rule and requested any
comments and concerns that Tribes may
have on such a rule. The BLM then held
three public listening sessions in
September 2021 on its potential use of
the Energy Act of 2020 authority. The
BLM also requested and received
feedback from the public on preferred
alternatives to use of the Energy Act of
2020 authority in its Manual 2806.60,
‘‘Rent,’’ which was later published in
May 2022 after three public listening
sessions and public review and
comment on the draft Manual. The BLM
published its proposed rule in June
2023, receiving nearly 900 comments
after holding three virtual public
meetings. The BLM also sent Tribes
another notice about the rulemaking in
July 2023, requesting Tribal input and
whether there was any interest to
consult on the rule. No Tribes
responded with interest to consult on
the BLM’s rulemaking.
Section 2801.5 What acronyms and
terms are used in the regulations in this
part?
The existing § 2801.5 contains the
acronyms and defines the terms used in
this part of the regulations. The BLM
proposed to remove, revise, and add
acronyms and terms to this section.
Section 2801.5 of this final rule has
some revisions in response to comments
that are discussed further in this section
for each respective revision.
Under this section, several
commenters recommended the BLM
engage relevant stakeholders and
industry experts to ensure definitions
accurately reflect industry practices and
standards. The BLM regularly engages,
and will continue to engage with,
industry; Tribal, Federal, State and local
authorities; and resource experts to
supplement its knowledge about
renewable energy and market
advancements. The BLM sought public
comment on the proposed rule and will
seek public comment on any changes to
its acronyms and terms in future
rulemakings.
The BLM received comments
requesting the BLM consider the full life
cycle of materials, energy inputs and
technology types, and resource and land
use footprints, and suggesting that
labeling all wind and solar energy as
renewable energy is misleading. The
BLM agrees that it should analyze land
use footprints and resource impacts of
proposed projects on public lands.
However, analyzing the full life cycle of
materials, energy inputs, and technology
types are addressed by other parts of the
Federal government where such

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analysis is within their expertise. The
BLM also believes that for purposes of
this final rule, all solar and wind energy
generation projects are renewable
energy development projects insofar as
they use a natural resource on public
lands that is not depleted to produce
power.
One comment suggested that the BLM
should include a definition for ‘‘current
land use plan’’ to mean ‘‘a document
developed through a formal planning
process to guide the management of
activities and uses of public lands that
has been approved, amended, or
recertified within the past ten years.’’
The BLM has separate rules governing
its land use planning processes found at
43 CFR Chapter V, Subchapter A, that
provides definitions related to the
BLM’s land use planning. Accordingly,
the BLM did not make changes in
response to that comment since they are
out of scope for this rule under 43 CFR
part 2800.
Commenters suggested that the term
‘‘economic hardship’’ under 43 U.S.C.
3003 should be defined in this final rule
and that the BLM should require proof
of economic hardship for rent and fee
reductions. The BLM does not define
economic hardship in this rule as
suggested. Each instance of hardship is
unique to a holder and their
circumstances and will be assessed on
a case-by-case basis. The BLM does not
intend to define hardship
(economically, financially, or otherwise)
so as not to unintentionally preclude
reasonable requests to consider
hardship.
Commenters stated that the proposed
rule uses unclear language and is
inconsistent with underlying resource
management plans, agency guidance,
and regulatory frameworks, and
requested the BLM use more specific
language such as pastureland,
rangeland, habitat, or other terminology
to denote the uses of the landscape. The
BLM disagrees with the commenters’
suggestion that the proposed rule uses
unclear language and that the rule
should include other definitions in this
final rule. The BLM’s use of
‘‘pastureland rents’’ comes from the
name of the survey data used as the
basis in determining the acreage rent in
this final rule: The NASS Survey of
Pastureland Rents. This is a newer
source of data from NASS that was not
available in the original 2012 Western
Solar Plan or when the BLM
promulgated its 2016 rule for solar and
wind energy and has not yet carried
through to other guidance materials
from the BLM. It is appropriate for the
BLM to use this terminology in
describing the data used and its source

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in the regulations. Future BLM guidance
and actions would include this
terminology as appropriate.
Commenters requested the BLM settle
on one standard term (‘‘preferred
renewable energy development areas’’)
for the preferred renewable energy
project locations to avoid conflicts with
other resources and uses. Commenters
also suggested that the definitions for
‘‘variance areas’’ and ‘‘exclusion areas’’
should be added to the rule. The BLM
understands the interest in defining
such terms and has already done so in
its land use planning efforts, such as the
ongoing Solar Energy PEIS effort to
update the 2012 Western Solar Plan.
The BLM believes these terms are best
identified and defined as part of the
land use planning process and is not
making any changes to this rule due to
comments.
Paragraph (a) of this final rule
provides for the acronyms and
paragraph (b) provides for the terms
used in this part. The final rule would
remove, revise, and add certain terms to
the BLM’s acronyms and definitions
found in part 2800.
This final rule adds the acronym
‘‘FLPMA’’ to paragraph (a) meaning the
Federal Land Policy and Management
Act of 1976, as amended (43 U.S.C. 1701
et seq.). This acronym replaces the term
‘‘Act’’ from paragraph (b), providing
clarity as to which act the BLM is
referencing.
The BLM received no substantive
comments on replacing the term ‘‘Act’’
with ‘‘FLPMA,’’ and therefore this final
rule makes no changes to the proposed
rule.
This final rule removes definitions of
‘‘Megawatt (MW) capacity fee,’’ ‘‘Net
capacity factor,’’ ‘‘Megawatt hour
(MWh) price,’’ ‘‘Rate of return,’’ and
‘‘Hours per year.’’ The BLM no longer
charges a megawatt capacity fee based
on solar and wind energy generation
facility nameplate capacity; definitions
related to the nameplate capacity fee are
removed. The BLM did not make
changes to the definitions in the final
rule.
Some commenters noted
inconsistencies related to the terms
‘‘Rate of Return’’ and ‘‘Hours per year.’’
Commenters pointed out that the
proposed rule stated that these terms
would be removed from § 2801.5(b),
noting the paragraph numbering for the
Federal Register instructions were
confusing whether the terms were
removed or not. The BLM agrees with
commenters and has revised the Federal
Register instructions, removing the
proposed instruction number vi,
‘‘removing paragraphs (1) and (2) in the
term ‘‘Megawatt rate’’ and redesignating

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paragraphs (3) and (4) as paragraphs (1)
and (2). There are no paragraphs for the
revised term, and removing the
instructions is consistent with the
proposed definition. The BLM did not
make any other changes to this
definition in the final rule.
This final rule adds the term
‘‘Capacity fee’’ to mean the fee based on
the amount of electricity produced from
solar or wind energy resources on the
public lands. This is consistent with the
BLM’s change implementing a capacity
fee that is based on electricity
production. There were no substantive
comments on the term, and the BLM did
not make changes to this definition in
the final rule.
The BLM includes in this final rule a
new term ‘‘Domestic Content reduction’’
to define the circumstances in which a
holder meets the domestic content
criteria and thus qualifies for a fee
reduction. This final rule includes
changes to the term for ‘‘domestic
content’’ to mean an item or product
that qualifies for the Buy America
preference as set forth in Section 70914
of the Build America, Buy American
(BABA) Act, Public Law 117–58, 135
Stat. 429, §§ 70901–70927 (Nov. 15,
2021), and implementing guidance at 2
CFR part 184. The final rule modifies
the definition for ‘‘domestic content’’
from the definition of ‘‘domestic end
product,’’ as that term is used in Section
52.225–1 of the Federal Acquisition
Regulations (FAR) (48 CFR 52.225–1) in
the proposed rule, to the criteria for
‘‘domestic content preference’’ provided
in the BABA Act and 2 CFR part 184.
As described below, the qualifying
definition in this final rule offers clarity
and consistency among Federal
programs regarding what constitutes
domestic content and therefore is
appropriate to apply to determine when
a holder may obtain a fee reduction as
identified under § 2806.52(b).
The BLM has determined that offering
a Domestic Content reduction will
further promote the greatest use of solar
and wind resources because it will
support the development of secure,
reliable domestic supply chains while
also reducing economic hardships for
developers. As discussed in the
preamble to the proposed rule,
uncertainty in global supply chain
dynamics, as seen in recent years, can
delay deployment of solar and wind
energy development projects on public
lands (88 FR 39726, 39740–39742). By
offsetting some of the costs of
domestically sourced parts and
materials, the Domestic Content
reduction will insulate developers from
global supply chain shocks of all kinds
by reducing the economic dependence

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of developers on global supply chains
and will also support the efforts of
domestic suppliers. In this way, the
proposed Domestic Content reduction
supports the transition to more reliable
domestic supply chains that will, in
turn, increase interest in developing
solar and wind energy projects
throughout the country, including on
public lands (43 U.S.C. 3003(b)(1)(C)),
and thereby would promote the
development of solar and wind energy
resources on public lands (43 U.S.C.
3003(b)(2)).
Similar to the BLM’s use in the
proposed rule of a definition for Buy
American based on section 52.225–1(b)
of the FAR, this final rule’s use of the
term ‘‘domestic content,’’ following the
BABA Act and 2 CFR part 184,
identifies the components of projects
through categories—iron or steel
products, manufactured products, or
construction material—that must be
produced or manufactured in the United
States in order to qualify for the
Domestic Content reduction. The BABA
Act applies to Federal financial
assistance funds for ‘‘infrastructure
projects,’’ which require the use of
material produced in the United States.
The Office of Management and Budget
(OMB) published its final guidance
implementing the BABA Act on August
23, 2023, under 2 CFR part 184.
Generally, under 2 CFR 184.4(e), a
‘‘domestic content’’ preference would
apply to three separate product
categories: (i) iron or steel products; (ii)
manufactured products; and (iii)
construction materials. The OMB’s
guidance defines each of these
categories and makes clear how a
proponent satisfies the categorical
requirements to demonstrate that the
components of an infrastructure project
meet the domestic content standards.
This final rule uses the term ‘‘domestic
content’’ as a catch-all term to refer to
items for which the holder might satisfy
the Domestic Content reduction based
on the definitions established 2 CFR
part 184.
Some commenters suggested that the
proposed Buy American definition
should be revised to reflect eligibility
for the reduction to mimic the guidance
published by the Treasury Department
and Internal Revenue Service for the
domestic content bonus credit from
section 13701 of the Inflation Reduction
Act (IRA), 117 Public Law 169, 136 Stat.
1818 (Aug. 16, 2022). Other commenters
requested the BLM utilize a domestic
content definition that incentivizes the
use of domestically manufactured core
solar components, as laid out in Section
13502 of the Inflation Reduction Act.
Commenters also urged the BLM to

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refine its approach and apply more
robust origin standards to its domestic
content proposal.
The BLM has considered the various
comments suggesting different
definitions for what constitutes
American-made products for the
purposes of this reduction. In response
to this public input, the BLM has
changed from the FAR definition to the
BABA Act (and implementing guidance
at 2 CFR part 184) definition for the
domestic content preference. The BLM
is aware that the Treasury Department
and Internal Revenue Service have
issued guidance about the domestic
content bonus under the Inflation
Reduction Act for clean energy projects
and facilities that meet American
manufacturing and sourcing
requirements. However, that guidance
describes an intent to propose
regulations that have not yet been
finalized. This final rule’s definition for
domestic content aligns with definitions
in other Federal programs with
oversight over domestic products and
content. This approach will promote
consistency among these Federal
programs, reducing the potential for
unintended consequences resulting
from conflicting definitions. As noted
above, the BABA Act definition focuses
on construction materials and
components for infrastructure projects
and is closely aligned with the type of
projects covered in this final rule.
The final rule revises the term ‘‘grant’’
to reflect that solar or wind energy
leases are not covered under the
definition. The change provides clarity
for where the BLM will issue a solar or
wind energy grant and where a solar or
wind energy lease will be issued.
Commenters suggested the term
‘‘lease’’ is unnecessary and to use
‘‘grants’’ instead, as the difference
between a lease and a grant under the
proposed rule is the location of a rightof-way either inside or outside a DLA.
As identified in the BLM’s 2012
Western Solar Plan, leases will be
issued in areas designated for leasing
under the relevant land use plan. The
BLM disagrees with these comments
and retains the distinction between
solar and wind energy grants and leases
in this final rule based on location of
their issuance. The BLM did not make
any change to this definition in the final
rule.
This final rule adds the term
‘‘Capacity fee’’ to mean the fee based on
the amount of electricity produced from
solar or wind energy resources on the
public lands. This is consistent with the
BLM’s change implementing a capacity
fee that is based on electricity
production. There were no substantive

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comments on the term, and the BLM did
not make changes to this definition in
the final rule.
The final rule revises the definition of
the term ‘‘Megawatt hour (MWh) rate’’
to mean the five-calendar-year average
of the annual weighted average
wholesale prices per MWh for major
trading hubs serving the 11 western
states of the continental United States.
This revision is consistent with the
BLM’s change to implement a capacity
fee for solar and wind energy
development projects.
Some commenters were unclear
whether the BLM had revised the
definition of ‘‘Megawatt hour (MWh)
rate’’ in the existing regulations, as
§ 2801.5(b) currently does not define
that term. Commenters presumed that
the BLM proposes to revise the existing
definition of ‘‘Megawatt rate.’’ The BLM
understands the confusion raised by
these comments. The BLM revises the
term ‘‘Megawatt rate’’ to ‘‘Megawatt
hour (MWh) rate’’ in this final rule,
consistent with the change to
implement a capacity fee for solar and
wind energy development projects. The
BLM did not make any other changes to
this definition in the final rule.
This final rule revises the term
‘‘Reasonable costs’’ to be consistent with
the rule change replacing the words
‘‘the Act’’ with the acronym ‘‘FLPMA.’’
There were no substantive comments on
the term, and the BLM did not make
changes to this definition in the final
rule.
‘‘Renewable Energy Coordination
Office (RECO)’’ is added in this final
rule to mean one of the National, State,
district, or field offices established by
the Secretary under 43 U.S.C. 3002(a)
that is responsible for implementing a
program to improve Federal permitting
coordination with respect to eligible
projects on covered land and such other
activities as the Secretary determines
necessary. There were no substantive
comments on the term, and the BLM did
not make changes to this definition in
the final rule.
This final rule includes the new term
‘‘solar or wind energy development’’ to
mean the use of public lands to generate
electricity from solar or wind energy
resources on public lands. This
definition clarifies that the term ‘‘energy
development’’ refers to uses of public
lands that directly involve the
generation of electricity on public lands.
This definition clarifies which right-ofway grants and leases are subject to the
conditions in Section 50265(b)(1) of the
IRA, which apply to ‘‘a right-of-way for
wind or solar energy development on
Federal land.’’

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Commenters suggested revising the
definition of ‘‘solar or wind energy
development’’ to include language from
the BLM’s recent Instruction
Memorandum 2023–036, Inflation
Reduction Act Conditions for Issuing
Rights-of-Way for Solar or Wind Energy
Development (April 23, 2023), according
to which solar or wind energy
development ‘‘does not include sitetesting, communication sites,
transmission lines, gen-tie lines,
pipelines, roads, installation of batteries
and other energy storage systems, or
other uses that might indirectly support
energy production or transmission.’’
The BLM does not agree that adding
additional language to the definition is
necessary for this final rule. This rule
and the BLM’s policies were written to
complement each other in how the BLM
administers applications and rights-ofway for such projects. The BLM did not
make a change to this definition in the
final rule.
This final rule adds ‘‘Solar and wind
energy lease’’ to mean any right-of-way
issued under Title V of FLPMA within
an area identified in a BLM land use
plan as a DLA. Any right-of-way not
issued within an area identified as a
DLA would be a grant. The BLM
received comments on this term, which
are discussed with regard to the
definition of ‘‘grant’’ in this final rule.
The BLM did not make changes to this
definition in the final rule.
Section 2801.6 Scope
Section 2801.6 describes the scope of
43 CFR part 2800’s applicability.
Paragraph (a)(1) of this final rule
includes the additional language ‘‘or
leases’’ describing that this part applies
to both authorization types: grants and
leases.
A comment requested the following
language be added to § 2801.6 Scope:
‘‘Applications for transportation or
utility right-of-way crossing
conservation system units, national
recreation areas, or national
conservation areas in Alaska are subject
to the provisions of Title XI of the
Alaska National Interest Lands
Conservation Act and 43 CFR part 36.’’
This rule focuses on the BLM’s
generally applicable process for
administering applications and rightsof-way for solar and wind energy
development projects on the public
lands. It does not modify or amend
other applicable statutory or regulatory
requirements, and the BLM would
comply with all such requirements
during the process set forth in this rule.
The BLM made no changes to this
section in the final rule based upon
public comments.

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Section 2801.9 When do I need a grant
or lease?
Section 2801.9 explains when a grant
or lease is required for systems or
facilities located on public lands.
Paragraph (d) of this final rule extends
the term for solar or wind energy
development authorizations up to 50
years, and authorizations for other uses
that support solar or wind energy
development, to up to 50 years, and
make other technical changes.
Paragraph (d)(3) provides that solar or
wind energy development facilities
authorized with a grant or lease may be
issued for up to 50 years (plus initial
partial year of issuance). Paragraph
(d)(4) provides that energy storage
facilities that are authorized separate
from an energy generation facility are
authorized with a right-of-way grant for
up to 50 years. Paragraph (d)(6) provides
that electric transmission lines with a
capacity of 100 kV or more are
authorized with a right-of-way grant for
up to 50 years. The BLM did not make
a change to this section of the final rule.
Commenters raised concerns with a
50-year authorization term for large
development projects because, they
suggested, the longer the public lands
are occupied by a wind or solar project
the longer it will likely take for those
lands to fully recover after removing the
project. Commenters also suggested that
the longer-term authorization may
unreasonably occupy the public lands
with a solar or wind energy
development when preferable or newer
energy technology could be deployed
there.
The BLM disagrees with comments
that assert the increase of the maximum
term of an authorization from 30 years
to 50 years is inappropriate because
preferable technology may be desired at
that location in the future. The BLM
acknowledges that recovery of impacts
might be greater for a 50-year right-ofway term. However, the BLM will
analyze the environmental impacts of
each proposed project, including the
end of project life activities such as
reclamation and restoration of public
lands, under NEPA, and will consider
the appropriate term for each proposed
right-of-way, before deciding whether to
approve for deny a proposed right-ofway for energy development.
Additionally, BLM notes that most of
the ground-disturbing impacts of solar
or wind development come during the
construction phase, so the
environmental effects of a 50-year
authorization are therefore likely to be
similar to the effects of a 30-year
authorization with respect to recovery.
Any such impacts, however, will be

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considered on a case-by-case basis, in
compliance with NEPA, when the BLM
evaluates each proposed project.
Through this process, the BLM will
consider the reasonably foreseeable use
of public lands, including the
technology proposed by an applicant
and the environmental consequences of
that use, when deciding whether and for
what duration to authorize solar or wind
energy development on the public
lands.
Some commenters argued against
increasing the maximum term length for
a right-of-way and expressed concerns
about the economic and environmental
impacts and the lifespan of energy
generation equipment. Commenters
suggested that a longer term to an
authorization may not be appropriate
due to the shorter lifespans of solar
panels and wind turbines (30 years for
solar and 20–25 years for wind), and
that a shorter initial term, like the
current 30-year term, instead of 50 years
may be more suitable.
The BLM understands the concerns
raised by commenters regarding the
proposal to increase the maximum term
length for solar and wind energy
development authorizations. In the
BLM’s experience, the lifespan of solar
and wind energy projects has been
increasing over time as the technologies
advance. When the BLM last updated its
rules for solar and wind energy in 2016,
the lifespan of a solar or wind project
was approximately 20 years. The 30year term was appropriate for such a
length, considering the amount of time
necessary to construct a project and
then the expected time to decommission
and reclaim and restore the public lands
during the authorization term. With
increasing lifespans of solar and wind
equipment, a longer-term right-of-way is
appropriate. See recent Berkeley
National Laboratory, Results from a
Survey of U.S. Wind Industry
Professionals,4 and the Department of
Energy’s, Photovoltaics End-of-Life
Action Plan,5 for a discussion of wind
and solar energy project lifespans.
However, the BLM has made changes
to other parts of the rule to address the
commenters’ concerns about dedicating
public lands for up to 50 years to certain
projects or uses that, over time, may
become less efficient, see a significant
decrease in production, or become
entirely inactive. These changes also
address concerns about public lands
being used unlawfully for purposes
4 https://emp.lbl.gov/publications/benchmarkinganticipated-wind-project.
5 https://www.energy.gov/sites/default/files/202203/Solar-Energy-Technologies-Office-PV-End-ofLife-Action-Plan_0.pdf.

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other than those identified in the ROW
grant (e.g., a former solar or wind
generating site being used for equipment
storage). In particular, the changes
impose conditions aimed at ensuring
diligent operations on the public lands,
see § 2805.12(c)(8). These are in
addition to the BLM’s existing diligent
development requirements under
§ 2805.12(c)(7).
Commenters suggested that the BLM
evaluate changes to the environment or
technology during the term of an
authorization after it has been approved.
The BLM did not adopt this suggestion.
Once the BLM issues a final decision,
the BLM would only re-address
technological changes or environmental
impacts during the term of an
authorization if the BLM undertakes a
new decision-making process, such as
in response to a ROW holder’s proposed
change in technology. The BLM’s
original analysis for a proposed facility
considers the environmental effects of
the facility and technology proposed by
the applicant for the term of the
proposed authorization, informing the
BLM’s decision to deny, approve, or
approve with modification the proposed
project. Any subsequent changes in
equipment used at the site that would
result in changes to environmental
impacts that may occur after the BLM
issues its decision, would be analyzed at
the time the BLM considers issuing a
new decision, based on the relevant
information available at that time. The
BLM may complete a new decisionmaking process to adjust the terms and
conditions of the authorization under
existing § 2805.15(e) under certain
circumstances, such as a change to
legislation or regulations, when
necessary to protect public safety, an
environmental change (e.g., new
threatened or endangered species
listing), or if proposed changes to
technology may result in additional or
different environmental impacts.
One comment requested clarification
on how § 2801.9 may be modified based
on outcomes of the ongoing update to
the Western Solar Plan. The analysis of
environmental impacts of energy
development and decisions made in
updating the Western Solar Plan do not
affect this final rule, which that
provides BLM procedures and
requirements when administering
applications and authorizations for solar
and wind energy development projects.
Some comments suggested that
proposed energy storage facilities and
proposed energy generation facilities
should be reviewed in separate NEPA
documents due to differences in fire risk
and toxicity concerns. While it is
beyond the scope of this rulemaking to

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speculate as to how the BLM will
comply with NEPA when evaluating
individual projects, the BLM agrees that
energy storage facilities may have
environmental impacts that are distinct
from those posed by energy generation
facilities. Nevertheless, the BLM can
prepare a single NEPA document to
evaluate impacts from energy generation
facilities and energy storage facilities
and may find it appropriate to do so in
certain circumstances.
Subpart 2802—Lands Available for
FLPMA Grants or Leases
The BLM proposed to revise the title
of subpart 2802 to include ‘‘or leases’’
to clarify for readers that public lands
are available for both grants and leases,
consistent with other revisions in this
rule regarding leases. No comments
were received on this, and the BLM did
not make changes to the final rule.
Section 2802.11 How does the BLM
designate right-of-way corridors and
DLAs?
Section 2802.11 explains how the
BLM designates right-of-way corridors
and DLAs through its land use planning
process. This section includes a nonexhaustive list of factors the BLM could
consider when designating such areas
under its land use planning process
described in 43 CFR part 1600. Other
technical changes in § 2802.11(b)
improve readability and consistency
between the BLM’s regulatory authority
under part 2800 and its statutory
authority under FLPMA. The BLM did
make changes to this section of the final
rule.
Paragraph (b)(1) is unchanged from
the proposed rule and includes Tribal
land use plans that BLM reviews for
consistency when it is developing,
amending, or revising a land use plan in
accordance with Section 202(c)(9) of
FLPMA (43 U.S.C. 1712(c)(9)).
Paragraphs (b)(10) and (b)(11) add
criteria that the BLM may consider
when designating new leasing areas for
solar and wind energy. Paragraph (b)(10)
adds ‘‘access to electric transmission,’’
and paragraph (b)(11) provides for
consideration of relatively large areas
where energy development is feasible
and there is a low potential for conflict
due to environmental, cultural, and
other relevant criteria, including
assessing the demand for new or
expanded areas; applying
environmental, cultural, and other
screening criteria; and analyzing
proposed areas through the land use
planning process described in part 1600.
The BLM received comments about
whether the BLM’s proposal to carry
forward three of the four criteria from

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the 2012 Western Solar Plan is
consistent with other BLM planning
actions. The BLM carried these three
criteria forward from the 2012 Western
Solar Plan, which is consistent with
other BLM plans identifying solar and
wind energy development areas.
Some commenters suggested that the
BLM redesignate proposed paragraph
(b)(11) as paragraph (b) and redesignate
existing paragraphs (b)–(d) as newly
designated paragraphs (c)–(e). The BLM
did not change the rule due to this
comment. Reorganizing the paragraphs
as suggested would be confusing to a
reader as considerations for solar energy
would no longer be located together in
one subparagraph. The BLM did revise
paragraph (b)(11) to clarify that the
factors BLM considers include ‘‘whether
there are areas’’ consistent with
revisions under paragraph (b).
One comment requested that wording
be amended to ‘‘clarify that BLM may
require sharing a gen-tie right of way
subject to reasonable terms.’’ The term
‘‘gen-tie’’ refers to a generation
interconnect transmission line that
connects the original source electric
generation (for the purposes of this rule,
a wind or solar energy development) to
the transmission system. These gen-tie
lines are typically less than 5 miles long
and require a right-of-way grant if they
cross public lands. The BLM retains
authority under 43 CFR 2805.15(b) to
allow or not allow such common use of
the right-of-way.
Commenters suggested that the BLM
alter the language of proposed
§ 2802.11(b), which identifies factors or
criteria that the BLM may consider
when designating an area of public land
as a right-of-way corridor or a DLA.
Some commenters recommended
replacing the proposed term ‘‘may’’ with
‘‘must.’’ Other commenters suggested
expressly incorporating all of the
considerations listed in 43 U.S.C.
1712(c), which governs criteria for
consideration by BLM when it prepares
land use plans, to this section. Other
commenters suggested that the BLM add
transmission and electric infrastructure
to the list of criteria or factors. Finally,
some commenters agreed with the
language in the proposed rule, which
provides a non-exclusive list of factors
or criteria that the BLM may consider
when designating a corridor or a DLA.
After considering comments on this
section, the BLM did make some
changes to this paragraph in the final
rule. While § 2802.11(b) provides
examples of criteria that the BLM may
consider, some of the listed criteria
might not be relevant in all cases, and
the BLM may consider additional
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Further, the BLM’s land use planning
regulations, 43 CFR 1600, provide
additional direction for complying with
the requirements of Section 202 of
FLPMA, 43 U.S.C. 1712. The BLM did
not add transmission and electric
infrastructure to the list of criteria or
factors because the proposed rule
already included ‘‘access to electric
transmission,’’ which is retained as a
criterion or factor in the final rule.
However, the BLM revised paragraph (b)
to replace ‘‘factors the BLM may
consider include, but are not limited to,
the following’’ to read as ‘‘the BLM may
consider various factors, including’’ to
clarify what the BLM considers when
designating such areas.
Commenters suggested that adding
three criteria to a list of other criteria for
the BLM to consider may create
confusion. Some commenters supported
the BLM adding paragraphs (b)(10) and
(b)(11) to provide more detail of what
and how the BLM considers when
designating new leasing areas. Other
commenters requested the BLM evaluate
criteria for designating exclusion areas
in addition to the criteria for designating
DLAs and right-of-way corridors. The
BLM believes that adding the three
additional criteria for consideration
when designated corridors and leasing
areas is appropriate and provides for
transparency when the BLM begins its
land use planning processes to
designate leasing areas. The BLM does
not agree that exclusion criteria are
appropriate when identifying DLAs.
However, paragraph (d) of the existing
regulations provides broad discretion
for the BLM to identify areas where the
BLM will not allow rights-of-way,
which may include criteria to identify
exclusion areas during the land use
planning process. During the land use
planning process, the BLM engages
Federal, Tribal, State, and local
government partners and the public to
inform and clarify the factors analyzed
when considering whether to designate
exclusion areas. Including these criteria
in the final rule will minimize the
confusion that may arise in the future.
Some comments requested that the
final rule include additional criteria for
designating exclusion and avoidance or
variance areas. Commenters suggested
that including these criteria would
encourage the appropriate designation
of such areas and thus focus on
processing right-of-way applications
only in areas where development is best
suited. The BLM disagrees with
commenters that additional criteria for
designating exclusion and avoidance or
variance areas should be included in the
final rule. Such criteria do not need to
be included in the final rule and are

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better suited for policy (e.g., instruction
memoranda), which can be
implemented consistent with this rule
and other applicable regulatory
authority and environmental analysis,
while also providing appropriate
flexibility in the process. Further,
exclusion criteria are based on the
environmental impacts of a program on
the public lands, which are identified
through a NEPA analysis, such as the
ongoing Western Solar PEIS that is
updating the 2012 Western Solar Plan.
Lastly, this final rule updates its
prioritization principles under 2804.35,
which were not in place in 2012 with
the Western Solar Plan. The BLM
believes that with the robust public
engagement, prioritization principles,
and other preliminary application
review meetings, holding a variance
process is not necessary in
administering applications for solar and
wind energy development.
Section 2803.10 Who may hold a grant
or lease?
Section 2803.10 provides the criteria
for who may hold a grant or lease. In
this final rule, the BLM clarifies that a
holder who is of legal age and
authorized to do business in one State
must also meet this requirement in each
other State in which the right-of-way
grant they seek is located. No comments
were received on this section, and the
BLM did not make changes to this
section of the final rule.
Section 2803.12 What happens to my
grant if I die?
In the notice of proposed rulemaking
for this rule, the BLM proposed to add
new paragraph (a) and redesignate
existing paragraphs (a) and (b) as
paragraphs (b) and (c). This final rule
does not carry forward those proposed
revisions because another final rule
included revisions that addressed those
concerns. The BLM’s final rule ‘‘Update
of the Communications Uses Program,
Cost Recovery Fee Schedules, and
Section 512 of FLPMA for Rights-ofWay,’’ (89 FR 25922) [April 12, 2024]
updated § 2803.12 to remove reference
to applications in the section title and
paragraph (a).
This final rule retitles this section and
revises paragraphs (a) and (b) to include
‘‘or lease’’ clarifying that this section
applies to both grants and leases.
Paragraph (b) of this final rule
replaces the word ‘‘distributee’’ with
‘‘receiver’’ to improve clarity to readers
that when the BLM distributes a grant
or lease, the instrument would be
received by the holder. This final rule
also includes the provision that
unqualified receivers of a right-of-way

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must comply with all terms, conditions,
and stipulations.
One comment suggested that the BLM
clarify paragraph (b) to state that
distribution will take place under state
law in the state where the grant or lease
is located. Including this suggested
change could be inaccurate and
potentially unenforceable. The BLM’s
rules should not dictate distribution of
a lease as an inheritable interest in all
instances.
Section 2804.12 What must I do when
submitting my application?
Section 2804.12 explains what an
applicant must do when submitting a
right-of-way application. The BLM
proposed changes to paragraphs (c) and
proposed to add paragraphs (f) and (j).
The BLM did make a change to this
section of the final rule.
Paragraph (c) provides for additional
requirements for solar and wind energy
development or short-term rights-ofway. Paragraph (c)(1) requires payment
of an application filing fee for solar and
wind energy development and shortterm applications as an initial payment
toward cost recovery payments. The
BLM will refund the balance of the
application filing fee if it exceeds the
processing costs. Paragraph (c)(1) is
revised for readability and now reads
‘‘payment toward cost recovery’’ instead
of ‘‘payment towards cost recovery.’’
Paragraph (c)(2) requires payment of
additional reasonable costs in addition
to application filing fees. See existing
§ 2804.14 of this part for further
information on reasonable costs in
processing an application. Payment of
category 6 cost recovery fees—which are
based on full costs and are collected if
the BLM has determined that processing
efforts will take more than 64 hours to
complete—may be reduced by the
application filing fee that is paid when
submitting an application.
Some comments requested lower fees
for application submittal. Another
comment suggested that the BLM keep
the application fee until all ‘‘reasonable
costs’’ are paid before any refund is
given. Under the existing regulations,
application filing fees are a payment of
reasonable costs for the United States to
process an application and are intended
to discourage applicants from
unnecessarily applying for more land
than is reasonable for a solar or wind
energy development. As updated by this
final rule, these application filing fees
continue to be a payment of reasonable
costs and may now clearly be applied to
the processing fees, such as through a
cost recovery agreement. Any
overpayment of these costs may be
reimbursed to the applicant or carried to

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cover the inspection and monitoring of
the right-of-way, if authorized. Entering
into a cost recovery agreement requires
action by the BLM and applicant to
complete, including the prioritization of
an application under § 2804.35 by the
BLM and payment of reasonable costs
identified by the BLM in a cost recovery
agreement.
Multiple comments suggested the
BLM issue a cost recovery agreement
within a certain timeframe, such as 30
days of receiving the required
information. The BLM agrees that it is
important for the BLM to be responsive
to applicants who have provided the
required information under this section.
The proposed rule added paragraph (j)
providing that an application is
complete when an applicant submits the
required information under this section.
Upon receiving a complete application,
the BLM would determine what cost
recovery amounts would be necessary,
and whether that should be under a cost
recovery agreement. See § 2804.14 for
further information. The BLM would
notify an applicant within 30 days
pursuant to § 2804.25(d) whether
processing their application will take
longer than 60 calendar days and what
the expected processing timeframe is for
the application. Section 2804.19 of the
BLM’s right-of-way regulations provides
that the BLM and applicant work
together to establish and issue the cost
recovery agreement; the length of that
process can vary widely based on a
number of variables including project
complexity, analysis of the needs from
a cost recovery agreement, and needed
inputs from the developer. As noted
under the previous comment response,
entering into a cost recovery agreement
requires action by the BLM and
applicant to complete, including
prioritization under § 2804.35 by the
BLM and payment of reasonable costs
identified by the BLM in a cost recovery
agreement.
Section 2804.12(f) of this final rule
clarifies that the BLM may require
additional information at any time
while processing an application.
Additional information may be
necessary, such as environmental
resource data. The BLM will issue a
deficiency notice pursuant to existing
§ 2804.25(c) to inform applicants of
additional information requirements.
Comments requested that the BLM
provide clear application requirements
and limit the BLM’s ability to request
additional information beyond those
requirements. The BLM believes that the
existing rules clearly state what is
required for applications under 2804.10,
What Should I do before I file my
application?; in § 2804.11, Where do I

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file my grant application?; and as
updated by this final rule, § 2804.12,
What must I do when submitting my
application? Paragraph (f) of this final
rule provides that BLM may request
additional information while processing
an application. Additional information
may be requested under 2804.25(c) after
an application is determined to be
complete pursuant to added paragraph
(j) of this final rule.
Paragraph (j) describes that a
complete application meets or addresses
the requirements of § 2804.12, as
appropriate for the application
submitted. Some comments asked the
BLM to clarify the definition of
‘‘complete application’’ in paragraph (j).
The BLM believes that new paragraph (j)
clearly describes what a complete
application is. Upon satisfying the
requirements of this section, the BLM
will provide the applicant notice in
writing that the application is complete.
Some commenters suggested that the
BLM provide a determination of
application completeness within
specified timeframes to promote a
timelier application process. The BLM
agrees that it is important to remain
diligent in processing an application.
However, the BLM did not propose to
implement any timeframes for
determining an application is complete
as this section of the rules applies to
applications for all rights-of-way, not
just solar or wind energy applications.
Reasonable expectations for timely and
diligent application requirements will
vary depending on the complexity of
processing a certain type of system or
use on the public lands.
Section 2804.14 What is the processing
fee for a grant application?
The BLM recently published its final
rule ‘‘Update of the Communications
Uses Program, Cost Recovery Fee
Schedules, and Section 512 of FLPMA
for Rights-of-Way’’ (89 FR 25922) [April
12, 2024]. In that final rule, the BLM
updated its address within this section.
The proposed updates that the BLM
included in this rulemaking are no
longer necessary. No comments were
received, and the BLM did not make a
change to this section in this final rule.
Section 2804.22 How will the
availability of funds affect the timing of
the BLM’s processing?
Section 2804.22 of this final rule
clarifies how the availability of funds
may affect the BLM’s schedule for
processing an application. Paragraph (a)
clarifies that when the BLM is
processing an application, it will not
continue to process the application until
funds become available or the applicant

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elects to pay full actual costs under
§ 2804.14(f). Paragraph (b) provides that
the BLM may deny an application after
90 days if it has requested reasonable
costs for processing an application and
the proponent has failed to provide
funds for reimbursement. The BLM did
not change this section of the final rule.
One commenter supported denying
applications for which fees had not been
paid. Such a procedure, the commenter
suggested, would disincentivize
applicants from submitting applications
that they do not intend to diligently
process. While the BLM will not deny
an application without cause, as
described in more detail under
§ 2804.26, the BLM agrees that failure to
diligently pursue an application,
including unfunded application cost
recovery agreements, and incomplete
applications, among other reasons are
good cause for denying an application.
Denying applications for these reasons
would deter applicants from submitting
applications for projects that they do not
intend to diligently pursue. Paragraph
(c) of this final rule provides that funds
paid towards the cost recovery
agreement for a project may not be
refundable. Such funds would be those
identified in the cost recovery
agreement for hiring additional staff or
contractors and agreed to by the
applicant or right-of-way holder.
Some comments supported the idea of
cost recovery agreements that would
allow the BLM to hire additional staff or
contractors to aid in application
processing and reduce processing times.
This requirement helps ensure that
there is available funding to the United
States for reasonable costs of the
government, including those BLM
hiring and contracting decisions made
to support processing applications.
Section 2804.23 What costs am I
responsible for when the BLM decides to
use a competitive process for my
application?
Section 2804.23 of the final rule
describes what costs an applicant is
responsible for when the BLM decides
to use a competitive process. Paragraph
(b) requires, for cost recovery processing
categories one through four, payment of
cost recovery processing fees as if the
other applications had not been filed.
Paragraph (c) clarifies who is
responsible for processing costs within
processing category six.
The BLM did not make a change to
this section of the final rule.
One comment suggested the language
be changed to read, ‘‘What costs am I
responsible for if the BLM decides to
use a competitive process for my
application?’’ The BLM considered this

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change in title to the section and
believes that the proposed naming of
this section is clear with respect to what
costs the applicant will be responsible
for when the BLM determines it will use
a competitive process.
Section 2804.25 How will the BLM
process my application?
In the final rule, the BLM revised
§ 2804.25(c) to add that, if an applicant
fails to comply with a deficiency notice
under this section, the BLM may deny
the application. To ensure that
developers proceed diligently after
entering into a cost recovery agreement,
§ 2804.25(c)(1) requires applicants to
‘‘commence any required resource
surveys or inventories within one year
of the request date, unless otherwise
specified by the BLM.’’ If the applicant
fails to comply with a deficiency notice
under that provision, the BLM may
deny the application. See
§ 2804.26(a)(9). To clarify that the BLM
retains the discretion to deny an
application where the applicant does
not proceed diligently, the final rule
adds to § 2804.25(c): ‘‘Failure to meet
requirements under this section may
result in the BLM denying your
application pursuant to § 2804.26.’’
This added provision clarifies that the
BLM retains the discretion to deny an
application where the applicant does
not proceed diligently. This change is
consistent with changes made to
§ 2809.10(e) regarding when the BLM
will no longer hold a competitive
process. Together these amendments
give the industry the certainty it needs
to proceed with projects while retaining
the BLM’s discretion to deny an
application or offer lands competitively
if the applicant does not proceed
diligently. In that way, these
amendments balance the BLM’s
obligations to incentivize renewable
energy development on public lands
and to recover a fair return for U.S.
taxpayers.
In this section, the BLM proposed
removing a mandatory public meeting
that is unique to solar and wind energy
rights-of-way applications and is in
addition to other public participation
that would occur as part of the BLM’s
environmental review process.
Paragraph (e)(2) describes public
meeting requirements for solar or wind
energy right-of-way applications. In the
final rule, paragraph (e)(2) provides that
the BLM may hold a local public
meeting if there is no other public
meeting or opportunity for early
engagement. In other words, the final
rule would require the BLM to hold a
public meeting, offering the public
opportunity to engage early, though the

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BLM could satisfy this requirement by
holding a public scoping meeting or
other public meeting that facilitates
early engagement by the public.
Commenters suggested that the BLM
provide a website of applications and
authorizations for interested parties so
that they could receive up-to-date
information on the applications and
authorized projects. The BLM agrees
with comments about maintaining a site
that is accessible to the public on
existing and proposed (i.e., applications
for) projects on public lands. The BLM
currently maintains an active web page
at https://www.blm.gov/programs/
energy-and-minerals/renewable-energy/
active-renewable-projects where the
public may access the most recent
information on applications for solar,
wind, and geothermal development
projects, gen-tie-lines, upcoming lease
sales, and other relevant application and
development information about these
sites.
Some comments supported the
removal of the requirement that BLM
hold pre-processing public meetings,
noting that solar and wind energy
technologies are better known now than
they have been previously and that
these meetings are unnecessary. The
BLM also received comments that did
not support removing that requirement.
These comments expressed concerns
that by removing this public meeting the
BLM would be excluding the public and
should instead increase outreach to the
public in the area affected by these
proposed development projects. To
address these concerns, the BLM has
changed the regulatory text in paragraph
(e)(2)(i) to ensure that a public meeting
is held if there is no other opportunity
for the public’s early engagement. The
BLM also would retain discretion to
hold additional public meetings under
§ 2804.25(e).
Paragraph (e)(4) is updated to replace
‘‘the National Environmental Policy Act
(NEPA)’’ with ‘‘NEPA,’’ consistent with
the changes in paragraph (e)(2) of this
section. The BLM updates the reference
in this final rule, consistent with
changes that CEQ has made to its
regulations, such that 40 CFR parts 1501
through 1508 are now referred to as 40
CFR Chapter V, Subchapter A.
Paragraph (e)(5) provides that the
BLM will determine whether the
proposed use complies with applicable
Federal laws.
Paragraph (f) addresses the
segregation of lands within a right-ofway application. Paragraph (f)(3) now
provides that a segregation may be
extended when an application is
complete and cost recovery has been
received.

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Some comments suggested that the 2year segregation limit is appropriate,
that the BLM should begin NEPA within
2 years of segregating the lands, and that
such limitations should be consistent
with the NEPA timeline requirements
within the Fiscal Responsibility Act.
The BLM agrees that the agency should
be diligent in processing applications,
including initiating NEPA. Because
separate legal authority and policy
guidance applies to NEPA compliance
procedures, including applicable
timelines to complete the NEPA
process, the BLM did not make a change
to this paragraph of the final rule in
response to these comments.
Some comments suggested additional
language should be added to establish
timelines and deadlines supporting
quick action in processing applications.
Section 2804.25(c) in the existing
regulations provides specific due
diligence requirements for applications.
Unless another timeline is specified by
the BLM, applicants have one year to
complete certain actions, and the BLM
may deny an application for failure to
comply with the one-year requirement
or other specified timeframe for
submitting necessary information to the
BLM. The BLM believes this timeline is
generally adequate to promote the
timely processing of applications and
permitting of solar and wind
development projects and to ensure that
developers cannot hold public lands by
submitting, but not diligently pursuing,
an application, thus precluding other
uses of such lands. The BLM did not
change the final rule in response to
these comments.
The BLM received requests to revise
the rule to require automatic segregation
once an applicant has filed a complete
application and has paid the required
application fees and grant extensions
past the four-year mark. Changing the
method to segregate lands and the
timeframes of those segregations is
outside the scope of this rule. The BLM
did not propose to change the method
and timing of segregation, but only to
make this paragraph consistent with
new provisions in the final rule for
complete applications and cost
recovery.
Section 2804.26 Under what
circumstances may the BLM deny my
application?
Section 2804.26 of this final rule
explains the circumstances under which
the BLM may deny an application.
Paragraph (a)(4), consistent with this
final rule replacing the term ‘‘the Act’’
with ‘‘FLPMA’’ discussed under
§ 2801.5, provides that the BLM may
deny your application if issuing the

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grant would be inconsistent with
applicable law or regulation.
The BLM did not carry forward
paragraph (a)(9) of the proposed rule
because the BLM’s final rule, ‘‘Update of
the Communications Uses Program, Cost
Recovery Fee Schedules, and Section
512 of FLPMA for Rights-of-Way,’’ 89
FR 25922 (April 12, 2024) revised the
BLM regulations at § 2804.26(a) to add
the same provision allowing the BLM to
deny applications that fail to comply
with a deficiency notice . Thus, the
revision in the proposed rule that would
have added this provision is no longer
necessary.
Paragraph (10) incorporate
requirements of this final rule that are
discussed elsewhere. Paragraph (a)(10)
provides that an application may be
denied for failing to pay costs, as noted
in § 2804.22(b).
As proposed, paragraph (c) is
removed in this final rule. Any request
for an alternative requirement received
after an application has been denied is
not a timely request. Requests for an
alternative requirement must be timely.
See § 2804.40(c) for further information
on timely requests.
The BLM received a comment
recommending that the BLM add
another provision following section
(a)(4), suggesting that this new provision
address protection of special
conservation areas managed by the BLM
or other federal or state agencies. The
BLM believes that including the
suggested change to this section is
unnecessary. The BLM’s process to deny
an application under this section is
addressed in the existing regulations at
§ 2804.26. The BLM’s management of
special conservation and other sensitive
areas is generally determined through
the BLM’s resource management
planning and NEPA processes. The BLM
retains broad authority to deny an
application on the basis that it would
not be in the public interest, which may
also address this concern to deny
certain applications.
Section 2804.30
Reserved]

[Removed and

Section 2804.30 is removed and
reserved in this final rule. No comments
were received on this section and the
BLM did not make any changes to this
section in the final rule. Prior § 2804.30
addressed competitive leasing inside of
designated areas. The content of the
prior § 2804.30 is now duplicative of
this final rule in §§ 2809.13, 2809.14,
and 2809.17.

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Section 2804.31
Reserved]

[Removed and

Section 2804.31 is removed and
reserved in this final rule. Prior
§ 2804.31 addressed competitive process
for site testing. This portion of the rule
was not used since first put in place in
2016 and is removed. The BLM may still
hold competitive processes for site
testing if there is a competitive interest
or other reasons as identified in
§ 2809.10 of this final rule.
Some comments supported the
removal of competitive processes for
site testing grants, and other
commenters suggested that the section
may be useful in local field office
decision making in the future. The BLM
agrees that retaining requirements for
competitive processes related to solar
and wind energy is important. Subpart
2809 of this final rule provides the
requirements for solar and wind energy
competitive processes, which includes
the requirements of this section.
Section 2804.35 Application
Prioritization for Solar and Wind Energy
Development Rights-of-Way
Section 2804.35 is retitled to
‘‘Application prioritization for solar and
wind energy development rights-ofway.’’ This section provides for the
relative importance of different criteria
that vary from location to location,
giving weight to local resource issues
and circumstances that are not equally
relevant for every application.
Additionally, there are practical
concerns for the BLM when processing
solar and wind energy applications.
This section provides that the relevant
criteria are to be applied holistically to
prioritize applications in a manner that
would facilitate environmentally
responsible projects and ensure that
agency workloads are allocated
appropriately. The revised section
would also explicitly recognize that the
BLM may identify additional criteria in
guidance, which may be national in
scope or specific to an area.
Paragraph (a) clarifies that the
purpose of prioritizing applications is to
allocate agency resources to processing
applications that have the greatest
potential for approval and
implementation. The BLM revised this
section from the proposed rule to clarify
that the BLM’s prioritization of an
application is not a decision and is not
subject to appeal under 43 CFR part 4.
One commenter asked whether the
BLM’s prioritization process might
hinder development of renewable
energy and potentially conflict with
national priorities for renewable energy
deployment. The BLM is endeavoring to

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increase the responsible deployment of
renewable energy on the public lands
consistent with congressional and
presidential direction. In addition, the
BLM must continue to manage public
lands under the principles of multiple
use and sustained yield unless
otherwise provided by law (43 U.S.C.
1732(a)). The prioritization criteria
support national renewable energy goals
by helping the BLM to consider
applications for the projects that are
most likely to succeed and ensure the
BLM’s continued stewardship of the
public lands.
Paragraph (b) identifies criteria that
the BLM may consider when
prioritizing applications. This section
provides discretion to the BLM as to
how best to apply the criteria to
prioritize processing solar or wind
energy generation applications.
Some comments suggested
prioritizing applications for projects
inside DLAs. Other comments suggested
other criteria that should be considered
when prioritizing applications, such as
the presence of existing leasing
agreements and rights-of-way, whether
the application complies with all state
and federal regulations, the size or
location of the project, project features,
proximity to transmission, and
protection of natural resources.
The BLM believes that these
considerations are important, but no
changes to the regulatory text are
warranted since these considerations
were already included in the proposed
rule. The six listed criteria in the rule
provide flexibility in how the BLM may
apply the criteria for applications in the
BLM’s varied landscapes on which a
resource may have different sensitivities
in one location as compared to another
location. Prioritizing projects based on
siting in designated or preferred areas is
addressed in paragraph (b)(1). The BLM
addressed comments concerning
existing leasing agreements or rights-ofway in the BLM’s application
processing steps in subpart 2804 of
these rules. Paragraph (b)(4) addresses
commenter suggestions regarding
prioritizing applications based on
compliance with federal regulation.
Paragraphs (b)(2) and (b)(5) address the
size or location, project features,
proximity to electric transmission, and
the protection of natural resources.
Several comments requested clarity
on the application of the prioritization
criteria, including a description of the
relative importance of each criterion.
Other commenters also suggested that
they believe the BLM should be
prohibited from prioritizing
applications based on additional criteria
that are not expressly listed in this

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section of the rule. In the BLM’s
experience, the relative importance of
different criteria may vary from location
to location due to resource
considerations. Likewise, not all
prioritization criteria are equally
relevant for every application. The BLM
has intentionally not set specific
preferences or weights for the criteria it
will apply when prioritizing
applications. This final rule confirms
that the BLM will consider the
prioritization criteria holistically when
considering applications, and that the
BLM may establish additional criteria
through local or national policy
guidance.
In the final rule, the BLM changed
paragraph (b) to refer to ‘‘criteria’’
instead of ‘‘factors’’ as proposed. This
change is consistent with the BLM’s use
of the term ‘‘criteria’’ in paragraph
(b)(6).
The first criterion is whether the
proposed project is located within an
area preferred for such development,
such as a DLA. The BLM may
reasonably presume that development
projects proposed within these areas are
more likely to proceed to approval as
they pose less severe resource conflicts
than other lands.
Some comments suggested that wind
energy is disadvantaged since there are
no wind energy designated leasing areas
or equivalents. The BLM disagrees with
these comments. First, the 2016 Desert
Renewable Energy Conservation Plan
(https://blmsolar.anl.gov/documents/
drecp/) designated more than 192,000
acres of preferred development
locations for solar, wind, and
geothermal energy. Additionally, the
criteria are not given specific
preferences or weights when compared
with one another, and, as such, the BLM
would take into account the lack of
wind DLAs when prioritizing wind
energy development applications.
The second criterion is whether the
proposed development avoids adverse
impacts to or conflicts with known
resources or uses on or adjacent to
public lands and includes specific
measures designed to further mitigate
impacts or conflicts. When submitting
an application to the BLM, the applicant
must address known potential adverse
resource conflicts, including those for
sensitive resources and values that are
the basis for special designations and
protections, as well as potential
conflicts with existing uses on or
adjacent to the proposed energy
generation facility. Under section
2804.12(b)(2), the applicant must also
include specific measures to mitigate
impacts or conflicts with resources and
uses. Including this information is

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necessary for the BLM to determine that
an application is complete. While
subsequent consultation, public
comment, and environmental review
processes may reveal unknown resource
or use conflicts, based on previous
experience permitting wind and solar
projects on public land, the BLM
understands that projects with fewer
known conflicts are more likely to
proceed to approval and successful
implementation.
The third criterion is whether the
proposed project is in conformance with
the governing BLM land use plans.
Applications identify whether the
proposed project is in conformance with
the governing land use plan or would
require an amendment or revision to the
plan. The BLM may, in its discretion,
consider applications for solar or wind
energy generation facilities that would
require an amendment or a revision to
the governing land use plan under part
1600 of these regulations. However,
such application could require greater
resources to process and could present
resource conflicts, which would result
in a lower priority.
The fourth criterion is whether the
proposed project is consistent with
relevant State, local, and Tribal
government laws, plans, or priorities.
The purpose of this determination is not
to enforce these State, local, or Tribal
laws, plans, or priorities, but rather to
promote comity and identify projects
that are more likely to be successfully
approved. In addition, applying this
principle helps to ensure that the BLM
takes into account the existing resource
knowledge and expertise that may be
available through State, local, and Tribal
plans and priorities. To carry out this
prioritization, the BLM may enter into
or rely on existing agreements with
State, local, or Tribal governments.
Some comments suggested that
prioritization of an application should
be subject to Tribal consultation. The
BLM engages Federally recognized
Tribes early in the application process
under § 2804.12(b)(4), which allows
Tribes to participate in preliminary
application review meetings with the
BLM and provide early information to
the BLM about an application.
Additionally, under paragraph (b)(4),
the BLM will consider ‘‘whether the
proposed project is consistent with
relevant State, Tribal, and local
government laws, plans, or priorities,’’
which may also include consultation
with Tribes. Finally, the BLM
acknowledges that E.O. 13175 sets forth
criteria for when the BLM is required to
consult with Tribes, and the BLM is
committed to consulting with Tribes
whenever such consultation is required

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under the E.O., without regard to
whether that requirement is specifically
articulated in this rule.
The fifth criterion is whether the
proposed project incorporates the best
management practices set forth in the
applicable BLM land use plans and
other BLM plans and policies. This
principle ensures that the BLM takes
into account the knowledge and
expertise that has gone into formulating
these existing plans and policies.
Should an application require amending
a BLM land use or other plan, it is likely
to require more time and effort to
process.
The sixth criterion considers any
other circumstances or prioritization
criteria identified by the BLM in
subsequent policy guidance or land use
planning for an area.
Paragraph (c) provides that the BLM
will prioritize applications, once
complete (as described in § 2804.12(j) of
this part). The BLM’s prioritization may
use any available information provided
in the application or its Plan of
Development, applicant responses to
deficiency notices, and information
provided to the BLM in public meetings
or by other Federal agencies and State,
local, or Tribal governments.
Paragraph (d) clarifies the BLM
discretion to re-categorize an
application’s priority at any time. Recategorizing an application may be
based on new information that the BLM
has received or on changes the applicant
has made to the application. Recategorizing an application may also be
based on the BLM’s need to adjust its
workload, if circumstances warrant such
re-prioritization.
Some comments expressed concern
that denying or de-prioritizing an
application prior to any final land use
designation, such as those which may
be made in the ongoing update to the
2012 Western Solar Plan, is
inappropriate or pre-decisional.
Comments further expressed that
pending applications should not be
denied before land use designations are
made. The BLM is not constrained by
ongoing or potential future land use
planning processes, but it must manage
public lands in conformance with the
land use plans currently in effect.
Accordingly, the BLM generally will not
deny or deprioritize an application
based on non-conformance with a future
or ongoing land use planning effort. The
criteria in the rule refer to consideration
of governing land use plans. The BLM
would deny or de-prioritize an
application pursuant to its broad
discretion in considering right-of-way
applications based on existing
information and existing land use plans.

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At the same time, the BLM retains
authority to deny an application based
on appropriate information even if the
project would conform to the applicable
land use plan, including, for example,
where an application conflicts with
current management policies that have
not yet been incorporated into a land
use plan.
Some comments suggested that the
BLM should adopt a first-come, firstserved system when processing
applications or self-prioritization by an
applicant for multiple applications
within a single BLM field office. While
in practice the BLM often processes
applications on a first-come, first-served
basis, it retains discretion to prioritize
applications according to other
considerations including input from an
applicant about their applications. In
practice, the BLM has observed that the
prioritization of projects, particularly in
Field and District Offices with high
workloads, provides a number of
benefits for the BLM and applicants. In
coordinating with applicants, the BLM
discusses workload capacities and will
receive input from developers on the
priority of their applications and
whether there is a specific preferred
order. Due to the many factors the BLM
considers in this decision, however, the
BLM’s determination on a project’s
priority for processing may be different
than that requested by a particular
developer. Targeting workloads for BLM
staff and management facilitates
accelerated decision-making for those
solar and wind energy development
proposals with the greatest technical
and financial feasibility and the least
anticipated natural and cultural
resource conflicts and increases
consistency in processing project
applications for the BLM and applicant.
As detailed in the discussion of subpart
2809 in this rule, the BLM may also
determine that there is a competitive
interest for a right-of-way or system and
hold a competitive process.
Section 2804.40
Requirements

Alternative

Section 2804.40 of this final rule
provides for situations when an
applicant requests alternative
requirements from the BLM if the
requestor is unable to meet the
requirements of this subpart. The final
rule clarifies that this section applies
specifically to the BLM’s consideration
of alternatives to the application
requirements set forth in subpart 2804.
Other requirements related to rights-ofway, such as the requirement to pay rent
as set forth in subpart 2806, cannot be
adjusted under this section. The BLM

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did not make a change to this section of
the final rule.
Some commenters suggested that state
and local governments should be
brought into the decision-making
process if an applicant is unable to meet
the application requirements and they
request an alternative to one or more
application requirements. It is the
BLM’s responsibility to determine
whether an alternative requirement for
the application process should be
allowed. Through agreements, including
with cooperating agencies, the BLM
engages with Tribal, Federal, State, and
local government offices when it
considers solar and wind energy
development projects. The BLM would
inform such partners of any changes to
its requirements. Additionally, the BLM
will consider under this section only
requests for alternatives to modify the
alternative requirements found in part
2804—Applying for FLPMA Grants.
Requests to modify other requirements,
including those identified in a decision
authorizing a right-of-way, such as
terms and conditions, cannot be
approved under this section. This
would include requests for alternative
access.
Section 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?
Section 2805.10 of this final rule
clarifies that agency decisions about
whether to approve rights-of-way are
generally administratively appealable
while the issuance of a right-of-way
grant or lease itself is not an opportunity
for appeal.
Paragraph (c) of this final rule clarifies
that ‘‘The BLM will issue the right-ofway by signing the grant or lease and
transmitting it to you.’’ The BLM’s act
of returning the signed instrument to the
holder constitutes the ‘‘issuance’’ of the
right-of-way. Identifying the point in
time at which the right-of-way is
‘‘issued’’ is important for calculating
when the term of a right-of-way begins
to run (see § 2805.11) and when the
holder’s obligation to pay rent begins
(see § 2806.12). Identifying the point at
which the right-of-way is ‘‘issued’’ is
also important for clarifying which
actions are subject to the conditions in
Section 50265(b)(1) of the IRA, which
imposes conditions on when the
Secretary may ‘‘issue a right-of-way for
wind or solar energy development on
Federal land.’’ The BLM did not make
a change to this section of the final rule.

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Section 2805.11
lease contain?

What does a grant or

Section 2805.11 of this final rule
revises the right-of-way authorization
term length for certain facilities, and the
final rule includes minor updates to the
proposed rule to improve technical
clarity. No change was made in this
section of the final rule due to public
comment.
The BLM’s final rule ‘‘Update of the
Communications Uses Program, Cost
Recovery Fee Schedules, and Section
512 of FLPMA for Rights-of-Way,’’ 89
FR 25922 (April 12, 2024), updated
§ 2805.11 to redesignate paragraph (b) to
paragraph (c). Proposed revisions from
this rule under § 2805.11(b) are now
finalized under 2805.11(c) consistent
with the redesignation of this paragraph.
Redesignated § 2805.11(c) addresses
the duration of rights-of-way. Section
2805.11(c)(2) provides specific terms for
solar and wind energy grants and leases.
Paragraphs (c)(2)(iv), (c)(2)(v), and (c)(4)
now show the maximum terms for solar
and wind energy generation facilities,
energy storage facilities that are separate
from energy generation facilities, and
electric transmission lines with a
capacity of 100 kV or more. The term for
a grant or lease for these types of
authorizations may be up to 50 years.
Revisions under this section are
consistent with those made under
§ 2801.9(d).
Paragraph (c)(2)(iv) is updated for the
maximum term for both grants and
leases, for up to 50 years (plus initial
partial year of issuance).
Paragraph (c)(2)(v) is updated for the
maximum term for rights-of-way for
energy storage facilities that are separate
from energy generation facilities.
Although the BLM generally treats
energy storage facilities as linear rightsof-way, rather than solar or wind energy
development rights-of-way, for purposes
such as rent calculation, the BLM
believes that the longer term of ‘‘up to
50 years,’’ commensurate with the
maximum term for solar or wind energy
development rights-of-way, will
facilitate the transition to cleaner
sources of energy in the United States.
Paragraph (c)(4) would be added to
update the term for electric transmission
lines with a capacity of 100 kV or more,
for up to 50 years, commensurate with
the term for solar and wind energy
development projects and energy
storage facilities that are separate from
energy generation facilities.
Some comments sought clarification
on whether a presumptive leaseholder’s
(which is defined at § 2809.15(b)(1))
control of the property would preclude
other uses, such as grazing or recreation,

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or during any period when use is not
immediately initiated. Prior to the
competitive process, a prospective
bidder would be informed as to whether
they were bidding on a location with
existing authorized uses, such as
recreation or grazing or other known
casual uses. The BLM’s identification of
a presumptive leaseholder or issuance
of a lease would not automatically
exclude authorized uses. Rather, the
BLM must follow its existing processes
prior to ending existing uses; for
example, in the context of livestock
grazing, notice and cancellation is
provided, subject to any required public
comment periods.
The BLM understands from comments
it has received that there is some
confusion whether solar and wind
energy developments may also be
projects. In the final rule, the BLM
revised paragraph (b)(2) to add
‘‘projects’’ to clarify that solar and wind
energy developments may be projects.
Section 2805.12 What terms and
conditions must I comply with?
Section 2805.12 of this final rule lists
certain terms and conditions that apply
to all right-of-way grants and leases. The
BLM revised this section to address
public comments regarding the term
length authorized for certain facilities.
The BLM also included revisions to
prevent a holder’s non-use of the public
lands for the authorized energy
generation facilities.
Paragraph (c)(8) is added to this final
rule addressing concerns raised in
relation to § 2801.9(d) regarding the
longer term for grants and leases. This
rule provides diligent operation
requirements wherein the holder of a
solar or wind energy development grant
or lease must maintain at least 75
percent of energy generation capacity
for the authorized facility for the grant
or lease term. A failure to meet this
operational capacity for two consecutive
years may support the suspension or
termination of the grant or lease under
§§ 2807.17 through 2807.19. The BLM
would send notice to the grant or
leaseholder with a reasonable
opportunity to correct any
noncompliance with the diligent
operation requirement, including
resuming use of the right-of-way.
The BLM believes it is reasonable to
establish a requirement that solar and
wind energy generation developments
must operate within 75 percent of their
generation capacity, allowing a 25
percent operational change for each
year. 6 This allows a solar or wind
6 As demonstrated in a 2018 NREL study, forecast
modeling for solar photovoltaic and wind energy

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operator to safely accommodate
operational changes related to
unforeseen circumstances and maximize
their energy production without the
need to coordinate with the BLM for
normal operations. A sustained
reduction in output, such as for
anomalous storm years or changes to a
development’s technology, that reduce
the energy generation below 75 percent
of the project’s capacity would require
coordination with the BLM to update
project information. The energy
generation capacity is first established
by the right-of-way holder under section
2806.52(b)(5) in the first annual certified
statement, and then informed by
subsequent years’ operational capacities
in the annual statement. Since the BLM
bills in advance for a calendar year (see
part 2806 for further information on
solar and wind energy capacity fee), the
BLM believes that this operational
standard is appropriate for the orderly
administration of the public lands and
to ensure appropriate use of its
resources.
In response to the BLM’s notice, a
holder must provide reasonable
justification for the reductions in energy
generation, such as delays in equipment
delivery, legal challenges, or Acts of
God. Holders must also provide the
anticipated date when energy generation
will resume and a request for extension
under paragraph (e) for an extension of
operations period to satisfy the two-year
diligent operation requirements of
paragraph (c)(8). The BLM may deny a
request for extension for failure to
comply with this section.
The BLM will use the annual certified
statement required under § 2806.52(b)(5)
to determine whether a holder has been
meeting the minimum energy generation
capacity for the diligent operation
requirement. Under paragraph
2806.52(b)(5)(vi), the holder must notify
the BLM if they will reduce the amount
of energy generated by 25 percent or
more for that year. Two consecutive
years with reduced energy generation
would support the BLM’s notice to the
grant or leaseholder of noncompliance
with the diligent operation requirement.
Paragraph (e)(2) of this final rule
clarifies that the option of requesting
alternative stipulations, terms, or
conditions does not apply to terms or
conditions related to rents or fees. As
with requests for alternative application
requirements under § 2804.40, requests
developments is generally within 10 percent of
expected capacities over a one-year period. https://
www.nrel.gov/docs/fy23osti/79498.pdf, Solar PV,
Wind Generation, and Load Forecasting Dataset for
ERCOT 2018: Performance-Based Energy Resource
Feedback, Optimization, and Risk Management
(P.E.R.F.O.R.M.)

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for alternative stipulations, terms, or
conditions under § 2805.12 are limited
to technical obligations of the applicant
or holder and not to the holder’s
obligation to compensate the United
States for the use of the public lands
and their resources. Requests for
exemptions or deviations from the
general rent provisions of subpart 2806
should be made under provisions of that
subpart that specifically address such
exemptions or deviations, such as
existing § 2806.15(c) (not revised in this
rulemaking), which sets forth a
procedure for asking the BLM State
Director to waive or reduce a holder’s
rent payment, or § 2806.52(b)(1)(i),
which describes certain circumstances
under which the BLM may calculate the
capacity fee based on an alternative
MWh rate.
A comment suggested that the fees
could be based on third-party
evaluations, such as an appraisal. The
BLM considered whether an appraisal
specific to each authorization would be
appropriate and determined that using
such a process would be costly and add
considerable time to the processing of
an application. The BLM chose not to
use an appraisal, except when it
determines under § 2806.70 that its rent
schedules do not apply to the
underlying right-of-way use. For
example, if the BLM receives a right-ofway application requesting a permit for
a long-term landscape art installation,
the schedules for transmission, solar or
wind energy development, or
communications sites would not apply,
and the BLM may elect to use an
appraisal to determine the appropriate
rent. This final rule also provides for a
specific alternative MWh rate for
determining the capacity fee under
§ 2805.62(b)(1)(i) for development
projects that use a Power Purchase
Agreement (PPA). Such agreements
must be provided to the BLM for review.
If the BLM determines the lower rate is
appropriate, it will use such agreements
in place of the calculated MWh rate.
The BLM did not make a change in
response to this comment.
A comment requested that the BLM
require applicants to include PLAs and
add union labor protections as a term
and condition of solar and wind energy
rights-of-way. In this final rule, the BLM
has elected to provide an opportunity
for holders to receive capacity fee
reductions under certain conditions,
including where the holder can show it
is using PLAs for the construction of the
planned facility (see § 2806.52(b)),
consistent with the reduction authority
under the Energy Act of 2020. However,
in administering the public lands, the
BLM is making such compliance

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voluntary, offering the capacity fee
reduction to incentivize the use of PLAs
for solar and wind energy development
projects instead of mandating
compliance with such a term. The BLM
believes this voluntary option provides
opportunities to a wide variety of
potential holders and recognizes the
effort of those who qualify for such
reductions consistent with criteria in
§ 2806.52(b). No change was made in
the final rule due to this comment.
Section 2805.13 When is a grant or
lease effective?
Section 2805.13 of this final rule
includes a minor technical clarification
to the title and section, adding ‘‘or
lease,’’ to build consistency for
authorization term lengths inside and
outside of DLAs.
The BLM received comments
opposing this section regarding term
length of authorizations. One comment
recommended the BLM extend the
maximum term from 30 years to 50
years only for leases inside DLAs.
Another comment opposed extending
the maximum term to 50 years for any
authorization. The BLM addressed this
and other similar comments under
§ 2801.9 of this preamble.
Section 2805.14 What rights does a
right-of-way grant or lease convey?
Section 2805.14 of this final rule
clarifies that the term ‘‘right-of-way’’ is
the category of authorizations that
generally are issued as a grant or a lease
under Title V of FLPMA. This clarity
has become increasingly important for
the internal and external understanding
of right-of-way authorizations with the
passage of new legislation. The BLM did
not receive comments on this section.
The title is revised to ‘‘What rights
does a right-of-way grant or lease
convey?’’ The title clarifies that this
section applies to both grants and
leases.
Paragraph (g) removes the text ‘‘solar
or wind energy development’’ and adds
‘‘right-of-way’’ to now read as ‘‘right-ofway grant or lease.’’ This section
provides for when an applicant applies
to renew any right-of-way grant or lease
under § 2807.22.
Section 2805.16 If I hold a grant or
lease, what monitoring fees must I pay?
The BLM’s final rule ‘‘Update of the
Communications Uses Program, Cost
Recovery Fee Schedules, and Section
512 of FLPMA for Rights-of-Way’’ 89 FR
25922 (April 12, 2024) updated the BLM
Headquarters address in § 2805.16.
Thus, the proposed rule’s update to the
BLM Headquarters address is no longer
necessary. The BLM did not receive

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comments on this section and did not
include it in the final rule.
Subpart 2806 Annual Rents and
Payments
Subpart 2806 of this final rule
clarifies that the term ‘‘right-of-way’’ is
the category of authorizations that are
generally issued as a grant or a lease
under Title V of FLPMA. This clarity
has become increasingly important for
the internal and external understanding
of right-of-way authorizations with the
passage of new legislation.
In subpart 2806, the BLM sets the
acreage rent and capacity fee calculation
methodologies for solar and wind
energy development rights-of-way.
Section 504(g) of FLPMA, 43 U.S.C.
1764(g), requires right-of-way holders,
subject to several narrow exceptions, ‘‘to
pay in advance the fair market value’’
for the use of the public lands. Section
102(a) of FLPMA, 43 U.S.C. 1701(a),
clarifies that ‘‘it is the policy of the
United States that . . . the United States
receive fair market value of the use of
the public lands and their resources
unless otherwise provided for by
statute.’’ The BLM has consistently
taken the position that this statutory
mandate includes the authority to
charge acreage rent and capacity fees
that reflect the fair market value of the
public lands and their resources. For
example, the preamble to the BLM’s
2016 Final Rule, Competitive Processes,
Terms, and Conditions for Leasing
Public Lands for Solar and Wind Energy
Development and Technical Changes
and Corrections, explained that ‘‘(t)he
BLM has determined that the most
appropriate way to obtain fair market
value is through the collection of
multicomponent fee [sic] that comprises
an acreage rent, a MW capacity fee, and,
where applicable, a minimum and a
bonus bid for lands offered
competitively . . . . [T]he collection of
this multicomponent fee will ensure
that the BLM obtains fair market value
for the BLM authorized uses of the
public lands, including for solar and
wind energy generation.’’ 81 FR 92122,
92134 (Dec. 19, 2016). In that final rule,
the BLM further explained that the use
of a multicomponent rent and fee
structure that comprises an acreage rent,
a MW capacity fee, and in some cases
also a minimum and a bonus bid assists
the BLM in achieving important
objectives, including identifying and
capturing fair market value for the use
of public land, providing a consistent
approach with other categories of public
land uses, encouraging efficient use of
the public lands by reducing relative
costs for comparable projects using
fewer acres, and employing an approach

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consistent with existing policies and
regulations governing the BLM’s
renewable energy program. See id. The
multicomponent fee of this final rule
will continue to advance important
objectives that serve the public interest,
including allowing the BLM to capture
fair market value for use of the land
(subject to reductions pursuant to
Energy Act of 2020 authority).
In the Energy Act of 2020, 43 U.S.C.
3003, Congress amended the fair market
value requirement of Section 504(g) of
FLPMA by providing the Secretary with
discretion to ‘‘consider acreage rental
rates, capacity fees, and other recurring
annual fees in total when evaluating
existing rates paid for the use of Federal
land’’ for solar and wind energy projects
and reduce acreage rental rates and
capacity fees if the Secretary makes
certain findings, including ‘‘that a
reduced rental rate or capacity fee is
necessary to promote the greatest use of
wind and solar energy resources.’’
Consistent with FLPMA and the Energy
Act of 2020, the BLM will continue to
charge solar and wind energy rights-ofway acreage rent and capacity fees. The
final rule implements a methodology
that bases rent and fee rates on local
land values and wholesale energy
market prices. This methodology also
supports the direction in the Energy Act
of 2020, 43 U.S.C. 3004, of meeting
national clean energy objectives,
including the congressional goal of
permitting 25 GW of renewable energy
by 2025 on Federal lands through
reductions in rental rates and capacity
fees. As described in the section-bysection discussion for subpart 2806, this
final rule is utilizing the authority in 43
U.S.C. 3003 to adjust the fair market
value requirement through reductions in
rental rates and capacity fees for solar
and wind energy projects on public
lands.
Under the final rule, acreage rent rates
for solar and wind energy rights-of-way
are determined using the NASS Cash
Rents Survey, which reflects a nominal
value of the land at the time the rightof-way is issued and prior to
commercial use. This per-acre land
rental value will be multiplied by an
encumbrance factor (which
differentiates between solar and wind
energy facilities) and an annual
adjustment factor that accounts for
changes in the value of the land over the
lifetime of the right-of-way due to
inflation and similar factors. Because
the NASS Cash Rents Survey used for
solar and wind acreage rents reflects a
valuation of annual rent, no rate of
return is applied when determining
solar and wind energy acreage rents.
The acreage rent rate reflects a nominal

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value of the land to continue to
maintain site control after the right-ofway is issued.
Once a solar or wind energy
generation facility is utilizing the solar
or wind resources on public land to
produce electricity, the BLM may charge
the capacity fee for the right-of-way
unless the acreage rent remains higher
than the fee. The capacity fee is
determined in part using the annual
MWh production multiplied by either
wholesale power pricing information or
pricing figures specific to a project’s
PPA to determine the market value of
the electricity generated from the
project. The wholesale power pricing
information or other pricing basis
variables in the BLM’s calculation, like
the pastureland rental value based on
the NASS Cash Rents Survey used for
calculating acreage rents, will be fixed
at the time the right-of-way is issued
and will be updated using a fixed
annual adjustment factor. This market
value of the electricity generated will
then be multiplied by a rate of return
based on a percentage of wholesale
pricing and by certain qualifying fee
reductions to arrive at a capacity fee for
the authorized project.
Some comments suggested that fees
should be compared with the fees
associated with other energy sources
instead of being based on the per-acre
values for pastureland. Other comments
expressed support for the BLM using the
NASS Cash Rents Survey to calculate
acreage rent rates. The BLM manages
different energy sources, e.g., oil and gas
and geothermal, consistent with the
applicable laws for each. As such, rent
and fee values promulgated in
regulations consider differences under
law. Solar and wind energy generation
facilities on public lands are authorized
under Title V of the FLPMA (43 U.S.C.
1761–1771) and its implementing
regulations at 43 CFR part 2800. Section
504(g) of FLPMA generally sets the
requirements for how the BLM will
collect rents and fees for use of the
public lands and their resources through
a right-of-way. These requirements
differ from those in the MLA (30 U.S.C.
181 et seq.) and the Geothermal Steam
Act (30 U.S.C. 1001 et seq.), and thus a
comparison of fees for production of
these different energy sources on public
lands would be inappropriate and
irrelevant. In this final rule, the BLM
updates rents and fees for solar and
wind energy development rights-of-way
under the authority provided by FLPMA
to reflect the fair market value for use
of the public lands and their resources
by using acreage rental rates that reflect
local land values prior to commercial
electricity production through using

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pastureland cash rent survey values by
NASS. The BLM then applies its
authority under the Energy Act of 2020
to provide reductions that are necessary
to promote the greatest use of wind and
solar energy resources.
One comment suggested that the
proposed rule should not offer acreage
rent and capacity fee reductions to
projects outside DLAs and instead
should implement project-specific
reductions and other incentives to
promote responsible development
inside DLAs. DLAs are locations on
public lands that the BLM has
designated through the land use
planning process as priority areas for
solar and/or wind energy development.
Limiting acreage rent and capacity fee
reductions to DLAs would not, however,
meet the Energy Act of 2020’s direction
to promote the greatest use of wind and
solar resources. To date, the BLM has
only allocated DLAs for solar facilities
on public lands within six southwestern
states for locations that are
predominately favorable for thermal
solar projects (i.e., concentrated solar).
The BLM currently has no DLAs
allocated for solar in other states.
Furthermore, the BLM has no DLAs
allocated for wind energy development
on public lands in any state. The BLM
determined that limiting rent and fee
reductions to only DLAs would be suboptimal in supporting clean energy
goals. As such, the final rule will
provide for rent and fee reductions on
public lands both inside and outside
DLAs, which will serve the BLM’s
purpose of promoting the greatest use of
wind and solar energy resources on
public lands.
One comment suggested that subpart
2806 should not eliminate fair market
value for rental and leases on public
lands or the competitive bid process.
The commenter did not support
incentivizing renewable development
for a specific project by eliminating the
competitive leasing process. Contrary to
the commenter’s suggestion, this final
rule does not eliminate the BLM’s
ability to utilize a competitive bid
process for solar and wind energy
development. The final rule adjusts the
competitive process requirements for
wind and solar energy development
proposals within DLAs by aligning it to
be consistent with agency discretion for
utilizing a competitive process outside
DLAs when the BLM’s authorized
officer decides to use a competitive
process.
Some comments suggested that this
rule should generally raise fees for
developers and require more upfront
mitigation money to address long term
environmental issues. Related

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comments suggested that the BLM
should establish an environmental
mitigation fund in addition to rents and
fees to accommodate the high
probability of direct and cumulative
impacts. The BLM considered these
comments and is not making these
suggested changes. The BLM believes
such changes are unnecessary because
the final rule does not limit the BLM’s
existing authority and ability to
appropriately impose mitigation
requirements as a component of the
terms, conditions, and stipulations for a
solar or wind energy development. The
BLM will continue to require
appropriate mitigation and conditions of
approval to address environmental
impacts for right-of-way grants and
leases without further requirements
promulgated under this final rule.
Other commenters stated that the
BLM should implement a minimum
efficiency criterion to ensure that
consumers receive the necessary
amount of power to keep up with
demand. The BLM disagrees with
comments suggesting that the BLM
should regulate how efficiently a project
must operate. Developing a project is a
complex process that depends on
several factors, including the
availability and cost of appropriate
technology. The BLM has included a
provision in this final rule that sets an
operational standard requiring a
development project to annually
maintain at least 75 percent of its energy
generation capacity. See § 2805.12(c)(8)
for further information on the
operational standards for solar and wind
energy development projects on public
lands.

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Section 2806.10 What rent must I pay
for my grant or lease?
Section 2806.10 of this final rule
provides a minor technical clarification
described below. The BLM did not
receive comments on this section and
has made no changes to it in the final
rule.
Section 2806.10 provides rent
requirements that apply to all grants and
leases, requiring payment in advance,
consistent with Section 504(g) of
FLPMA, as amended. New § 2806.10(c)
would clarify to a reader that the per
acre rent schedule for linear right-ofway grants must be used unless a
separate rent schedule is established for
your use—such as with communication
sites under § 2806.30 or solar and wind
energy development facilities per
§ 2806.50—or the BLM determines
under § 2806.70 that its rent schedules
do not apply to the underlying right-ofway use.

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Section 2806.12
pay rent?

When and where do I

Section 2806.12 of this final rule
provides a minor technical clarification
as described below. The BLM did not
receive comments on this section and
has made no changes to it in the final
rule.
Paragraphs 2806.12(a) and (b)
describe the proration of rent for the
first year of a grant and the schedule for
payment of rents. Paragraphs 2806.12(a)
and (b) would be revised by deleting the
term ‘‘non-linear,’’ which is not defined
in the regulations, to clarify that these
provisions apply to all right-of-way
grants or leases.
Section 2806.20 What is the rent for a
linear right-of-way grant?
Section 2806.20 of this final rule
clarifies the BLM’s mailing address.
Section 2806.20(c) addresses how to
obtain a current rent schedule for linear
rights-of-way. This paragraph provides
the BLM’s mailing address of record by
reference to § 2804.14(c).
Solar and Wind Energy Development
Rights-of-Way
The existing regulations contain two
undesignated center headings to
organize and differentiate sections
pertaining to solar (see existing
§§ 2806.50 through 58) and wind (see
existing §§ 2806.60 through 68) energy
rights-of-way. The final rule revises
those sections and undesignated
headings to provide a single set of
provisions for all solar and wind energy
development rights-of-way. The rent,
fee, and payment requirements under
the final rule are discussed in the
following sections and are identical for
solar and wind except for the difference
in the encumbrance factor used in
calculating the acreage rent that is
discussed under § 2806.52(a). Sections
2806.50 through 2806.58 address solar
and wind energy rents and capacity
fees.
The final rule updates the acreage rent
and capacity fee calculation methods to
improve predictability of rates for solar
and wind energy development projects
on public land. The combined rent and
fee calculation methodologies have the
flexibility to meet FLPMA’s fair market
value requirement while also applying
calculation factors to reduce rates to
promote the greatest use of wind and
solar energy resources on the public
lands consistent with the Energy Act of
2020.
The final rule retains flexibility to
utilize different data sources for
electricity market values over time.
Developers of solar and wind energy on

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public lands will have improved rate
predictability over the term of an
authorization. This is accomplished by
establishing an acreage rate and capacity
fee rate at the beginning of a grant or
lease term with upfront built-in rate
adjustments and by indexing the
capacity fee to the annual energy
production.
The BLM’s acreage rent is the average
of the state-wide pastureland rent from
the NASS Cash Rent Survey. The
acreage rent is the minimum payment
made to the BLM each year by the
developer. See § 2806.52(a) for further
information on the acreage rent.
The capacity fee, based on wholesale
power prices, serves to compensate the
United States for long-term site control
and the production value of the
electricity generated by solar and wind
energy projects on public lands. The
capacity fee will be collected annually,
but only when the capacity fee exceeds
the acreage rent for the year. See
§ 2806.52(b) for further information on
the capacity fee.
The final rule includes certain
reductions that may be applied under
the authority granted to the Secretary in
the Energy Act of 2020, which provides
that annual acreage rent and capacity
fees may be reduced if the Secretary
determines that a reduced rental rate or
capacity fee is necessary to promote the
greatest use of wind and solar energy
resources, among other reasons.
Adjustments to the capacity fee from the
MWh rate reduction, The Domestic
Content reduction, and PLA reduction
are discussed in greater detail in
§ 2806.52(b)(1)(ii) through (iv). The BLM
has determined that the rate reductions
in this final rule would help to promote
the greatest use of wind and solar
energy resources on public lands.
Section 2806.50 Rents and Fees for
Solar and Wind Energy Development
Section 2806.50 of the final rule
requires the holder of a solar or wind
energy right-of-way to pay in advance
the greater of either an annual acreage
rent or a capacity fee, consistent with
Section 504(g) of FLPMA (43 U.S.C.
1764(g)). There are no provisions in this
rule for a phased-in rent or fee.
The acreage rent or capacity fee, as
applicable, is calculated based on the
requirements found in §§ 2806.11 and
2806.12. The acreage rent is calculated
according to the formula set forth in
§ 2806.52(a), while the capacity fee is
calculated according to the formula set
forth in § 2806.52(b).
Some comments expressed concern
that this rule creates negative market
incentives by keeping acreage rents and
capacity fees artificially low. These

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commenters suggest that the BLM
should implement a consistent yearly
increase in acreage rent and capacity
fees based on initial rates, with
reductions provided only for projects in
specific circumstances, such as siting
within solar zones or on disturbed
lands, and with strong commitments to
domestic content. The BLM is cognizant
that the rent and fee rate structure is
important for promoting the greatest use
of wind and solar energy resources and
is a critical component to providing
short- to medium-term stability for
emerging energy markets. There is a
strong public interest in maintaining
rate predictability for electricity
generating entities that are subject to
long-term interconnect and PPAs. This
final rule sets rates that are also
increased annually, through the annual
adjustment factor (see § 2806.52(b)(2)).
The annual adjustment continues
through the term of the authorization.
Additionally, this final rule provides an
opportunity for rate reductions for all
solar and wind energy development
projects that further the goals of the
Energy Act of 2020, which is to
authorize 25 gigawatts of renewable
energy on Federal lands by 2025 and
further national clean energy priorities.
The BLM did not make a change to this
section of the final rule.
Section 2806.51 Grant and Lease Rate
Adjustments
Section 2806.51’s title is changed
from the proposed rule to clarify that
this section applies to all grants and
leases. This section provides for rightof-way grant and leaseholders to
transition to the new rate making under
this final rule through an affirmative
request to the BLM. Absent a request,
they would retain the rate setting
method in effect prior to this final rule.
Paragraph (c) informs holders of
existing solar or wind energy
development rights-of-way that they
may request the new rate methodology
in this final rule be applied to their
existing grant or lease. Existing holders
have two years from the date this final
rule becomes effective to request a
change to the new rate making method.
The BLM will continue to apply the
grant holder’s or lessee’s current rate
methodology if a timely request is not
received.
The BLM received a comment that
does not support any rate reduction
based on an estimation of energy
generated because all rates should be
assessed on actual production. The BLM
has the administrative flexibility to
collect payment in advance based on
estimated energy. The amount the BLM
may collect for the right-of-way may

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change once the BLM determines the
actual energy production on the right-ofway. The BLM will reconcile any
difference in the amount due and credit
any overpayment, and right-of-way
grant holders and lessees are liable for
any underpayment. See § 2806.52(b)(5)
of this rule for the BLM’s annual
certified statement that provides more
information about the estimated and
actual energy generation. The BLM did
not change this section of the final rule
in response to this comment.
Some comments recommended that
the final rule cap the total amount of
reduction in acreage rents and capacity
fees that an individual leaseholder can
claim for a right-of-way. The final rule
does not cap the number or level of
reductions an applicant or holder may
qualify for; however, the final rule does
require that the BLM collect no less than
the acreage rent for the right-of-way
each year, notwithstanding the number
of reductions that apply to the grant per
§ 2806.52(b). The BLM did not change
this section of the final rule in response
to this comment.
Some comments suggested that rate
reductions may be achieved without any
changes to where the BLM sources its
market pricing data. In the final rule, the
BLM preserves its discretion to change
the source of market data. In the BLM’s
experience, access to such information
may change over time. For this final
rule, the BLM is using the Energy
Information Administration pricing data
that may be found at https://
www.eia.gov/electricity/wholesale/.
Energy Information Administration data
is free and open to the public,
increasing transparency into the BLM’s
rate schedule. The BLM did not change
to this section of the final rule in
response to this comment.
Some comments recommended that
the BLM seek to increase domestically
sourced products and materials and that
the BLM should use this rule to
mandate robust domestic content
thresholds for projects permitted on
Federal land. The BLM agrees with
these commenters’ interest in increased
use of domestic content for solar and
wind energy development projects. This
final rule includes a financial incentive
in the form of a ‘‘Domestic Content
reduction’’ under § 2806.52(b)(1)(iii) to
encourage holders to use components
made or manufactured in the United
States in the construction of the solar or
wind energy project. This capacity fee
reduction is intended to offset costs
associated with using only iron, steel,
manufactured products, and
construction materials incorporated into
the project that are produced in the
United States consistent with the

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direction in the Energy Act of 2020. The
BLM anticipates that this proposed
capacity fee reduction would increase
economic certainty for renewable energy
projects on BLM-managed public lands.
By incentivizing the use of domestically
made parts and materials in exchange
for a reduced capacity fee, the BLM
expects to reduce costs for developers
that choose to incorporate domestically
produced materials into their projects.
The BLM believes that this reduction
will help increase demand for
domestically produced renewable
energy parts and materials. These
intended outcomes would serve to
promote the greatest use of wind and
solar energy resources on public lands.
Currently, wind and solar energy
developers face a choice between
relying on foreign-sourced parts and
materials or paying higher prices for
domestically sourced parts and
materials, if available. (See for example
the Department of Energy’s Solar
Photovoltaics—Supply Chain Deep Dive
Assessment, available at https://
www.energy.gov/sites/default/files/
2022-02/Solar%20Energy%20Supply
%20Chain%20Report%20%20Final.pdf). As seen in recent years,
uncertainty in global supply chain
dynamics has the potential to delay
deployment of solar and wind energy
development projects on public lands.
Using incentives to create demand for
American-made renewable energy parts
and materials will help develop
domestic supply chains and reduce
impacts on renewable energy
deployment on public lands from
potential supply chain delays. The BLM
believes that incentivizing the use of
parts and materials that qualify for the
Domestic Content reduction will
increase the responsible deployment of
renewable energy and will increase
commercial interest in the use of public
lands, promoting the development of
solar and wind energy resources on
public lands. This final rule changes the
definition used for domestic content to
align with the BABA Act and
implementing guidance at 2 CFR 184.
See § 2806.52(b) for further information
on the domestic content reduction.
Some comments suggested that a
broad approach to rate reductions may
have revenue implications and fail to
guarantee that taxpayers obtain a fair
return for the utilization of our public
lands. Consistent with congressional
and presidential direction, the BLM is
endeavoring to increase the responsible
deployment of renewable energy on the
public lands and as part of that
direction has been authorized to reduce
rents and fees to promote the greatest

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use of wind and solar resources on
public lands. As part of this rulemaking
process, the BLM carefully deliberated
on how to implement the directives and
new authorities while maintaining a
reasonable return for the use of the
public lands and their resources.
Following the BLM’s implementation of
previous rate reductions in calendar
year 2022 for solar and wind energy
development projects, the agency
received feedback which generally
indicated that overall costs for
permitting, development, and
operations on Federal public lands were
still perceived as a barrier to entry and
a disincentive to the BLM’s ability to
promote solar and wind deployment on
public lands. The BLM believes the fee
reductions will assist in removing
barriers inhibiting deployment of solar
and wind development on public lands.
Section 2806.52 Annual Rents and
Fees for Solar and Wind Energy
Development
Section 2806.52 of this final rule
describes the BLM’s methodology to
determine the acreage rent and capacity
fee for solar and wind development
rights-of-way. Payment is required of
the greater of either an acreage rent,
which is calculated in advance of
authorization, or a capacity fee, which
is calculated upon the start of energy
generation. This section was revised
based on public comments.
Section 2806.52(a) provides that
acreage rent would be determined by
multiplying the number of acres
authorized for a project (rounded up to
the nearest tenth) by the state-specific
per-acre rate from the solar and wind
energy acreage rent schedule in effect at
the time a grant or lease is issued. The
acreage rent would be the minimum
yearly payment for a grant or lease and
would not be required if the capacity fee
under paragraph (b) of this section
exceeds the acreage rent.
Paragraph (a)(1) explains that the peracre rate is calculated by multiplying
the state-specific per-acre value by the
encumbrance factor and a factor that
reflects the compound annual
adjustment since the start of the grant or
lease term, according to the formula A
× B × ((1 + C) ∧ D)).
Paragraph (a)(1)(i) identifies ‘‘A’’ as
the per-acre rate, using the state-specific
per-acre value from the solar or wind
energy acreage rent schedule for the
state where a project is located for the
year when the grant or lease is issued.
The average per acre value will be
determined using the NASS pastureland
rents reported within the previous 5year period. The BLM will update the
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rate every 5 years consistent with the
timing of rent adjustments under
§ 2806.22 for the linear rents schedule.
Based on the pastureland rent value in
the NASS Cash Rents Survey through
2021, the most recent 5-year average
ranges from $2.10 per acre in Arizona to
$12.60 per acre in California with a
median value of $6.62 per acre in the
Western States. The next year the BLM
will update its rent schedule will be for
calendar year 2026.
Using Nevada as an example for how
the BLM will average NASS pastureland
rents, assume that NASS reported
values of $10.00, $13.00, and $10.00 per
acre respectively for 2019, 2020, and
2021. NASS reported values during the
5-year period only for those 3 years and
did not report values for 2017 and 2018.
In that case, the BLM would average the
reported values using three years for
that 5-year period, which would equate
to $11.00 per acre.
The per-acre rate charged to the rightof-way holder for a grant or lease will
not change once calculated and the
authorization is issued. Rates for an
existing authorization will not change
with updates to the acreage rent
schedule; instead, the acreage rent will
be adjusted by the annual adjustment
factor, ‘‘C’’ in the formula above, under
2806.52(a)(1)(iii).
Paragraph (a)(1)(ii) identifies ‘‘B’’ in
the formula above as the encumbrance
factor. The encumbrance factor is
applied to account for the intensity of
the solar or wind development’s surface
use of the public lands. In the final rule,
solar energy generation facilities are
subject to a 100 percent encumbrance
factor and wind energy generation
facilities are subject to a five percent
encumbrance factor. The 100 percent
encumbrance factor for solar facilities
reflects a greater intensity of
development on the surface of public
lands and a virtual exclusion of other
uses on the right-of-way. The five
percent encumbrance factor for wind
facilities recognizes that a wind energy
facility only partially encumbers the
land, allowing other uses to co-exist.
Some comments suggest that a lower
encumbrance value for solar is
appropriate, noting that facilities may
incorporate design elements or
construction methods that reduce
impacts to resources, such as raised
fences for wildlife passage or vegetation
disturbance caps. The BLM appreciates
that projects incorporating such
improvements may cause fewer impacts
to public land resources. However, the
BLM disagrees that such improvements
reduce the encumbrance factor, which is
based on the occupancy of the land and
impact to other uses of the land. Solar

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energy developments have a greater
occupancy of the land and impact to
other uses because they preclude the
majority and sometimes all other uses.
This encumbrance factor for solar
energy developments is appropriate for
public lands, and the BLM retains its
100 percent encumbrance factor for this
rule.
One comment asserted that the
proposed encumbrance value of five
percent for wind energy is too low and
should be set around 50 percent and
that if the BLM decreases the
encumbrance factor from 10 percent, the
BLM should a explain its rationale in
this rule. Others believed the
encumbrance factor should be lower,
asserting that a mid-point encumbrance
factor of 3 percent is appropriate based
on the Department of Energy’s Wind
Vision analysis. The BLM considered
the intensity of the surface use and
exclusion of other uses when setting the
encumbrance factor in this final rule.
While the commenters that advocated
for a 50 percent encumbrance factor did
not provide data supporting that figure,
the National Renewable Energy
Laboratory has found that generally
‘‘only a small fraction of that area
(<1%–4%) is estimated to be directly
impacted or permanently occupied by
physical wind energy infrastructure.’’ 7
In practice, the BLM has found that,
based on geography or project design,
and effect on other uses, the
encumbrance may be more or less than
that reported by NREL occupied land
percentages and therefore set a five
percent encumbrance factor for wind
energy.
Paragraph (a)(1)(iii) clarifies that ‘‘C’’
in the formula above is the annual
adjustment factor, which is three
percent, and Paragraph (a)(1)(iv)
clarifies that ‘‘D’’ is the year of the grant
or lease term, where the first year
(whether partial or a full year) would be
0 (that is, there is no inflation for the
first year of the term). Under the final
rule, the annual adjustment factor
would be fixed at three percent and
compounded annually for the term of
the authorization.
Paragraph (a)(2) describes where you
may obtain a copy of the current peracre rates for the solar and wind energy
rent schedule.
Paragraph (b) describes that the
capacity fee is calculated by multiplying
the MWh rate or the alternative MWh
rate (which is described below), the
MWh rate reduction, the Domestic
Content reduction, PLA reduction, the
7 https://www.nrel.gov/news/program/2022/nrelexplores-the-dynamic-nature-of-wind-deploymentand-land-use.html.

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Federal Register / Vol. 89, No. 85 / Wednesday, May 1, 2024 / Rules and Regulations
rate of return, and the annual power
generated on public lands for the grant
or lease in question (measured in MWh)
by a factor that reflects the compound
annual adjustment. The capacity fee is
required to be paid annually beginning
in the first year that generation begins
for the energy generation facility. There
will be no capacity fee levied for the
first year or any other year if the acreage
rent exceeds the capacity fee. The
formula for calculating the annual
capacity fee is A × B × C × D × [(1 +
E) ∧F] × G × H.
Paragraph (b)(1)(i) describes that ‘‘A’’
is either the MWh rate, an amount
determined based on the average of the
annual weighted average wholesale
price per MWh for the major trading
hubs serving the 11 Western States of
the continental United States, or the
alternative MWh rate. The MWh rate is
calculated based on the wholesale
prices from the full five calendar-year
period preceding the most recent MWh
rate adjustment before the right-of-way
was issued, rounded to the nearest
dollar. There is no MWh rate phase-in
for energy generation facilities except
for existing holders that elect to
continue paying under their current rate
adjustment method per § 2806.51(c).
The BLM may use an alternative
MWh rate when a grant or leaseholder
enters into a PPA with a utility for a
price per MWh that is lower than the
average of the annual weighted average
wholesale price. In those instances, the
BLM will determine if the rate in the
PPA is appropriate to use instead of the
MWh rate. For example, an alternative
MWh rate may not be appropriate if a
utility issues itself a PPA for its solar or
wind energy development. If the rate in
the PPA is appropriate, then the BLM
would set an alternative MWh rate for
the grant or lease at the rate in the PPA.
The BLM received a request to remove
the BLM’s discretion to use an
alternative MWh rate rather than a MWh
rate calculated on the average wholesale
pricing as described under
§ 2806.52(b)(1)(i). The BLM provides an
opportunity for an alternative MWh rate
in this rule in the event that there is a
difference between wholesale pricing
(energy pricing at market) compared to
the negotiated pricing that may be
achieved in a PPA. The BLM
understands from a recent report from
Lawrence Berkeley National Lab
(available at https://emp.lbl.gov/utilityscale-solar/) that PPA pricing may be
less than wholesale market pricing. The
BLM does not want to disincentivize
reasonable development on public lands
or more favorable power purchase rates,
which would be contrary to national
goals set by law and directed by

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executive order, by disincentivizing
such actions. However, the BLM also
wishes to ensure it retains the discretion
necessary to ensure that an alternative
MWh rate is appropriate. The BLM did
not make changes in the final rule due
to these comments.
In paragraph (b)(1)(ii), ‘‘B’’ is the
MWh rate reduction. The final rule sets
the capacity fee at 20 percent of the
wholesale price per MWh or alternative
MWh rate through calendar year 2035.
This reduction is consistent with the
authority provided in the Energy Act of
2020 allowing the Secretary to reduce
acreage rental rates and capacity fees if,
among other things, the Secretary
determines ‘‘that a reduced rental rate or
capacity fee is necessary to promote the
greatest use of wind and solar energy
resources.’’ Further, this reduction
would help BLM meet the goal under
the Energy Act of 2020 of ‘‘authoriz[ing]
production of not less than 25 gigawatts
of electricity from wind, solar, and
geothermal projects by not later than
2025.’’ Implementing this reduction is
necessary to promote the greatest use of
wind and solar energy resources and
maximize commercial interest in lease
sales by lowering the entry cost of
prospective energy generating facilities.
Additionally, implementing this
reduction puts the rates the BLM
charges closer to what the BLM charged
developers in 2007 and 2008 when
interest in solar and wind energy
development on public lands began to
increase. The reduced rates and new
rate setting methodology lower the
potential that existing right-of-way
holders who agreed to terms and
conditions for using public lands that
were later updated based on market
changes will experience economic
hardship as a result of those
adjustments. This final rule uses
predetermined adjustments instead.
For example, the MWh rate reduction
for a newly authorized solar or wind
energy grant or lease in 2035 will be set
at 20 percent of the wholesale price per
MWh or alternative MWh rate. This will
yield a continued 80 percent reduction
through the end of that authorization’s
term consistent with the Energy Act of
2020 authority.
Starting in 2036, the BLM will begin
to transition the MWh rate reduction to
20 percent by 2038. The MWh rate
reduction will be reduced to 60 percent
for new projects authorized in 2036, 40
percent for new projects authorized in
2037, and 20 percent for new projects
authorized in 2038 and beyond. The
rates for existing authorizations will not
change with this transition to a 20
percent reduction. For example, an
authorization for solar or wind energy

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development in 2037 would receive a 40
percent reduction through the end of the
authorization’s term. The BLM would
similarly apply this reduction to
authorizations it issues based on the
year of issuance.
Some comments suggested the
transition from an 80 percent MWh rate
reduction to a 20 percent MWh rate
reduction appears arbitrary and without
grounding in economic analysis of
market conditions and suggested instead
allowing the 80 percent reduction to
continue until a future rulemaking. The
BLM understands the concerns raised
by the commenters regarding the change
to the reduction in the proposed rule.
However, the BLM disagrees that the 80
percent MWh rate reduction should
continue until a future rulemaking.
Instituting a phased sunset period to the
80 percent reduction in the capacity fee
is appropriate as the renewable energy
industry may no longer need this
reduction to achieve the greatest use of
wind and solar on public lands, and
progress toward our national goal of a
carbon-pollution free electricity sector
may indicate that a reduction is no
longer warranted. In this final rule, the
BLM is revising the transition from
MWh rate reduction from 80 percent to
20 percent over several years. This
transition would lessen the year-overyear rate change until 2038, when the
MWh rate reduction would remain at 20
percent. The BLM will evaluate progress
towards reaching national goals before
2036 and could reinitiate rulemaking to
adjust incentives, including extending
them beyond 2036, if appropriate under
the authority in the Energy Act of 2020
or other applicable authority.
In paragraph (b)(1)(iii), ‘‘C’’ is the
Domestic Content reduction. This
paragraph is revised consistent with the
changes discussed under § 2801.5. As
explained previously, the BLM is
promoting the development of solar and
wind energy resources on public lands
by offsetting some of the costs of using
items and materials produced in the
United States in the construction of
solar and wind energy development
facilities. The BABA Act, Public Law
117–58, 135 Stat. 429, §§ 70901 through
70927 (Nov. 15, 2021) and the
implementing regulations at 2 CFR part
184, describe certain categories of items
or products that are eligible for the
domestic content preference. As noted
in § 2801.5, the BLM adopts the term
‘‘domestic content’’ to refer to the items
and materials associated with the
construction of a solar or wind energy
facility on public lands that are eligible
for the domestic content preference.
Paragraph (b)(1)(iii) of § 2806.52 of the
BLM’s regulation would reduce the

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capacity fee for solar or wind energy
generation facilities if the holder can
demonstrate that the construction of the
facilities for the right-of-way—excluding
labor costs—qualify as produced in the
United States as described in 2 CFR
184.4. The Domestic Content reduction
is 20 percent for facilities qualifying for
the domestic content preference defined
in 2 CFR part 184. To qualify for this
capacity fee reduction, the percent of
the energy generation facility’s total cost
that consists of items qualifying for the
domestic content preference would have
to meet or exceed the ‘‘Produced in the
United States’’ requirements in 2 CFR
184.3. Generally, this would mean that:
(1) all manufacturing processes for iron
or steel products used as a component
of the project occurred in the United
States; (2) manufactured products (a)
were manufactured in the United States,
and (b) the cost of the components of
the manufactured product that are
mined, produced, or manufactured in
the United States is greater than 55
percent of the total cost of the
manufactured product, as determined in
2 CFR 184.5; and (3) all manufacturing
processes for construction materials
occurred in the United States, as
defined in 2 CFR 184.6. The holder
would have to provide sufficient
documentation (e.g., purchase orders for
end products, materials, and supplies of
the facility; as-built or construction
plans) to demonstrate that the products
used in the energy generation facility
meet the thresholds identified in 2 CFR
part 184.
Once an energy generation facility
qualifies for a Domestic Content
reduction, the facility will continue to
benefit from the reduction for the term
of the grant or lease. The BLM will only
revisit the reduction at the time of an
assignment, amendment, or renewal of
an energy generation facility grant or
lease to determine what reduction, if
any, it may qualify for. The BLM will
apply the criteria defining the domestic
content preference and the components
of construction for the version of 2 CFR
part 184 in effect at the time the rightof-way is issued unless OMB amends
that guidance in the future in such a
way that the current definition
contemplated in this final rule no longer
provides a clear meaning. In that
circumstance, the BLM will apply the
most recent version of 2 CFR part 184
that provides a workable definition until
such time as the BLM is able to amend
its rules.
In addition to changing the definition
to qualify for a domestic content
reduction from a FAR to a BABA-based
definition, this final rule only provides
for a single 20 percent reduction that

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interested parties qualify for if they
meet the requirements of 2 CFR part 184
instead of the incremental reduction
that the BLM had proposed. Under the
BABA definition described above,
projects qualify for the domestic content
preference by meeting or exceeding
specific materials requirements. As this
is a binary qualification, an incremental
reduction would be untenable. Further,
using a single reduction based on the
BABA threshold will provide for
simpler implementation of the
regulation and more clarity to
applicants.
One comment suggested that the BLM
use the Electronic Product
Environmental Assessment Tool
(EPEAT) product registry for
photovoltaic module use in
development projects and any Domestic
Content reduction. EPEAT is a global
label managed by the Global Electronics
Council that identifies environmentally
sustainable electronic products.
Currently, however, EPEAT only covers
a narrow set of products and
construction material related to solar
development facilities (specifically,
photovoltaic modules and inverters) and
does not cover any materials related to
wind energy generation facilities. As a
result, requiring applicants to use
EPEAT-registered products for
renewable energy facilities on public
lands could frustrate the goals of the
Domestic Content reduction. Further,
such a requirement would not serve the
purposes Energy Act of 2020 or relevant
direction in Executive Orders because it
would limit the technology that could
be deployed on public lands. The BLM
may, however, consider such criteria for
the Domestic Content reduction in the
future once the EPEAT covers a broader
range of solar and wind energy
materials. The BLM made no changes to
the final rule due to this comment.
Some comments suggested that the
BLM should require proof of
compliance with the domestic content
incentive prior to reducing rates. The
BLM agrees with these comments and
will require confirmation that the holder
seeking to obtain this reduction satisfies
the qualifying definitions the BLM is
utilizing: the standard in 2 CFR part
184. See § 2806.52(b)(5) regarding
conditional approvals where the BLM
makes it clear that approval will be
granted by the BLM once it has been
demonstrated to the satisfaction of the
BLM that the facility qualifies for the
reduction.
Some comments suggested that rate
reductions in the final rule should be
consistent with the IRA. The BLM
considered a reduction based on the
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the IRA and its definition of Buy
America bonus tax credits. The BLM is
aware that the Treasury Department has
issued guidance about the domestic
content bonus under the IRA for clean
energy projects and facilities that meet
American manufacturing and sourcing
requirements. However, that guidance
describes an intent to propose
regulations that have not yet been
finalized, and this final rule’s definition
for domestic content aligns with
definitions in other Federal programs
with oversight over domestic products
and content. No changes were made due
to these comments.
Paragraph (b)(1)(iv) is ‘‘D’’, the Project
Labor Agreement reduction. The BLM is
promoting the development of solar and
wind energy resources on public lands
by offsetting some of the costs when
using a PLA during construction of solar
and wind energy development projects
consistent with authority under the
Energy Act of 2020. The BLM’s
approach also is consistent with the
policy direction in Executive Order
14063 directing Federal agencies to use
PLAs in connection with large-scale
construction projects to promote
economy and efficiency in the context
of Federal procurement. A PLA is a prehire collective bargaining agreement
negotiated between one or more
construction unions and one or more
construction employers that establishes
the terms and conditions of employment
for a specific construction project,
consistent with 29 U.S.C. 158(f).
The 20 percent reduction of the
capacity fee offered in this final rule to
incentivize the use of a PLA is necessary
to promote the greatest use of solar and
wind energy resources on public land,
as authorized by the Energy Act of 2020
(43 U.S.C. 3003(b)(2). In particular,
PLAs lead to better and more efficient
outcomes in the construction of solar
and wind energy projects in the
following ways, which in turn leads to
the greatest use of solar and wind
resources. First, PLAs provide better
access to and retention of skilled
laborers, especially in a limited labor
market.8 Studies and reports
demonstrate that skilled labor provided
through PLAs offer a higher quality of
work, increased labor standards, more
timely construction, and fewer
8 Greg Lacurci, CNBC: Workers till Quitting At
High Rates—And Getting a Big Bump In Pay (Jan.
4, 2023); Jo Constantz, Bloomberg: The Great
Resignation Worked: Most Job-Swappers Got a
Raise (July 29, 2022); Frank Manzo IV, Larissa
Petrucci, & Robert Bruno, Ill. Econ. Policy Inst.: The
Union Advantage During the Construction Labor
Shortage 5 (2022).

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deviations from construction plans.9
Second, PLAs improve workplace safety
by offering more apprentice-trained
journey workers, which studies have
shown lead to fewer injuries.10 Third,
PLAs can ensure construction
administration is streamlined, which
minimizes undue costs, delays, and
inefficiencies in construction projects,
particularly complex projects such as
wind or solar energy generation
facilities.11 Finally, PLAs contain nostrike, no-lockout clauses that can
prevent project construction delays
associated with labor disputes.12
The benefits associated with PLAs, in
turn, would have positive impacts for
renewable energy projects on public
lands, including ensuring responsible
and productive construction, and
minimizing the potential duration.
These improved construction standards
will better meet resource management
objectives and ensure authorized uses
on public lands are meeting the goal of
the Energy Act of 2020 to promote the
greatest use of solar and wind energy
resources. These improved construction
standards also are consistent with the
BLM’s authority under FLPMA to
incorporate right-of-way terms and
conditions that, among other things,
‘‘protect Federal property and economic
interests,’’ ‘‘manage efficiently the lands
. . . subject to the right-of-way,’’ and
‘‘protect lives and property.’’ (43 U.S.C.
1765(b)). Further, as demonstrated by
the reports and studies cited above, the
use of PLAs leads to higher and more
stable wages for workers. These
reductions to the rates will further
incentivize the use of PLAs by
developers and will help to offset higher
wages for workers, which, in turn, may
help to reduce or eliminate economic
hardships for workers who would
9 McFadden, Sai Santosh, and Ronit Shetty:
Quantifying the Value of Union Labor in
Construction Projects, Independent Project
Analysis, 2 and 8–9 (December 2022): https://
acrobat.adobe.com/link/review?uri=urn%3Aaaid%
3Ascds%3AUS%3Ad9e7f15b-9bf9-313f-b4ebde7a1dc11d9f; and Fred B. Kotler: Project Labor
Agreements in New York State II: In the Public
Interest and of Proven Value, Cornell University
ILR School, 10, 19 and 36 (May 1, 2011), https://
ecommons.cornell.edu/bitstream/handle/1813/
74333/LaborAgreementsinNYS_II.pdf?sequence=1.
10 Emma Waitzman & Peter Philips, UC Berkeley
Labor Ctr: Project Labor Agreements and Bidding
Outcomes: The Case of Community College
Construction in California 10, 16 (2017); Bureau of
Labor Statistics, National Census of Occupational
Injuries in 2021, USDL–22–2309 (2022)
(construction work is second highest for
occupational deaths).
11 Dep’t of Labor, Implementation of Project Labor
Agreements in Federal Construction Projects: An
Evaluation 20 (2011).
12 Dep’t of Labor, Implementation of Project Labor
Agreements in Federal Construction Projects: An
Evaluation 30 (2011).

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otherwise not benefit from the higher
standards and protections in PLAs.
Some comments argued against the
use of the labor union incentives
included in the proposed rule and
questioned the BLM’s authority to offer
these incentives. Other comments
requested additional provisions be
added to ensure responsible use of
labor. As described above, the BLM has
concluded that, under the authority
provided in the Energy Act of 2020 and
FLPMA, it has discretion to include
reductions for the use of PLAs. These
reductions will incentivize the use of
PLAs, providing for increased
assurances of timely, efficient
construction; improved worker safety;
and higher and more stable wages for
workers. The BLM expects to publish
additional policy guidance, such as
through instruction memoranda, to
clarify how qualifying PLAs will be
identified, among other things. In
providing this reduction in the final
rule, the BLM is promoting responsible
use of labor and the greatest use of solar
and wind energy resources, as
authorized by the Energy Act of 2020,
by encouraging solar and wind energy
development on public lands.
Some comments suggested that the
rule should apply a tiered incentive for
developers based on the percentage of
local labor they commit to hire, which
could be implemented by certified
payroll reports that include employee
permanent addresses and in
consultation with local officials. Several
comments supported the inclusion of a
reduction for Union Labor or PLAs. In
the proposed rule, the BLM described
the potential of adding a 20 percent
capacity fee reduction for a holder’s use
of Union Labor or on the contingency of
a PLA. In this final rule, the BLM has
decided to include a reduction for
holders who have entered into, or
expect to enter into, a PLA for the
construction of a project, based on
comments and additional support for
the benefits of using PLAs to advance
infrastructure projects such as
renewable energy projects. This
additional reduction parallels the
domestic content reduction in this rule
in how it is applied in the calculation.
This reduction is based on the use of a
PLA in project construction and would
offset some developer costs. The BLM
does not include in this final rule the
suggested local labor reduction, but the
BLM believes the reduction for a PLA
may also support the use of local labor.
Paragraph (b)(1)(v) explains how the
BLM applies the alternative MWh rate
and the Domestic Content and PLA
reductions from paragraphs (b)(1)(ii),
(iii), and (iv) of this section. By default,

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the BLM will apply the ordinary MWh
rate under paragraph (b)(1)(i) and the
MWh rate reduction under paragraph
(b)(1)(ii). A developer who wished to
benefit from the alternative MWh rate,
the domestic content reduction, or the
PLA reduction will need to submit a
request for conditional approval prior to
the issuance of a grant or lease, along
with sufficient documentation to
demonstrate that the development
qualifies or may later qualify for these
rate reductions. In some cases, the BLM
will not be able to determine
definitively in advance whether the
proponent qualifies for these reductions.
The BLM may then conditionally
approve the requested reductions, but
the reductions will not go into effect
until the proponent adequately
demonstrates that the facility qualifies
for the relevant reduction. If energy
generation begins before the holder has
demonstrated that the facility qualifies,
the BLM will charge the holder the
capacity fee absent the reduction. The
capacity fee could be updated for
subsequent calendar years after the
holder demonstrates that the facility
qualifies, but the BLM will not refund
past payments made before the holder
demonstrates that they qualify and rate
reductions go into effect.
For example, an applicant or
presumptive leaseholder (see §§ 2809.13
and 2809.15, below) might request
conditional approval of an alternative
MWh rate. In that situation, a request for
conditional approval for an energy
generation facility may be granted if the
presumptive leaseholder has entered
into or intends to enter into a PPA (see
(b)(1)(i) of this section) that has a lower
rate than the MWh rate. Documentation
submitted to the BLM when requesting
conditional approval may include draft
or interim PPAs or confirmation in
writing from the purchasing party that
the parties have entered into
negotiations. While the BLM may then
conditionally approve the request for an
alternative MWh rate, the alternative
rate would not go into effect and be
used when calculating the payment
obligations until the PPA is finalized
and the BLM determines, in writing,
that the facility qualifies for the
alternative rate. The holder’s MWh rate
would then be updated for the next
year’s billing. Payments for past years
would not be adjusted retroactively.
In another example of a request for
conditional approval, an applicant or
presumptive leaseholder might request
conditional approval of a Domestic
Content reduction. In this example, a
request for conditional approval may be
granted if the proponent demonstrates
that it has firm plans to use items

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qualifying for the preference.
Documentation submitted to the BLM
when requesting conditional approval
may include procurement contracts or
design documents showing that the
facility would qualify for this reduction.
While the BLM may then conditionally
approve the request for a Domestic
Content reduction, the reduction would
not go into effect and be used to
calculate the proponent’s payment
obligations until the proponent submits
documentation of actual costs
associated with the construction of the
facility, such as fulfilled purchase
orders and as-built design documents
demonstrating installation of the
qualifying domestic content items in
that facility and the BLM determines, in
writing, that the facility actually
qualifies for the reduction. The holder’s
MWh rate then would be updated for
the next year’s billing. Payments for past
years would not be adjusted
retroactively.
Paragraph (b)(2) clarifies that ‘‘E’’ is
the annual adjustment factor, which is
set at three percent. This is the same
adjustment factor used for the annual
acreage rent under § 2806.52(a)(1)(iii).
See § 2806.52(a) of this preamble for
further discussion on the annual
adjustment factor.
The BLM understands that generally
when a solar or wind energy operator
begins generating electricity, it has
entered into an agreement with a utility
or other party to sell its power. It is
customary that such agreements include
an escalation clause that increases the
purchase price of power each year of the
agreement. These annual escalations
vary by agreement; however, in general,
the annual increase is approximately
one percent to five percent each year for
the contract term to account for gradual
decreases in system operational
efficiency, operating and maintenance
costs, and increases in the retail rate of
electricity. There may be some higher
annual escalation rates, but that is not
common. The BLM determined that a
three percent annual adjustment factor
is a reasonable escalation for the MWh
rate based on a review of the average
inflation rate over the previous fifteen
years. The BLM considered both an
adjustment for inflation that is
predictable and an adjustment that
changes more precisely with inflation
over time. The BLM determined that a
set inflationary adjustment that would
alter the starting electricity price per
MWh by a fixed factor each year was
preferrable, because it would increase
the predictability of future annual
payments. While it is possible that the
market price of electricity will deviate
from this fixed rate over time, the

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benefit of rate predictability is
important to renewable energy
deployment on public lands. Future
inflation may be higher than the
historically low inflation of the decade
or more prior to 2019. To accommodate
the more recent inflationary trends, the
BLM relied on the IDP–GDP average
annual change for the most recent fiveyear period, 2018–2022 (estimating 2022
with data for three available quarters),
which was 3.36 percent, while taking
into account that for the ten-year period
preceding 2018, the rate was 1.52
percent. The BLM derived the 3 percent
rate in the final rule by rounding to the
nearest whole percent of the recent
inflationary trends.
Some comments requested that the
BLM remove the annual adjustment
factor or reduce it, possibly using the
prior year’s IPD–GDP calculation as an
adjustment factor. These comments
noted that the BLM should be
promoting the greatest use of solar and
wind energy resources and maximize
commercial interest in development on
public lands. Other commenters
suggested a higher annual adjustment
factor, noting that recent inflation
amounts are higher than the three
percent proposed.
The BLM considered a range of
annual adjustment factors, including
those based on IPD–GDP calculations.
The BLM’s use of three percent aims to
capture a reasonable annual adjustment
based on changes over time. This rule
promotes the greatest use of solar and
wind energy resources by applying and
offering reductions to the capacity fee
for qualifying developments.
Additionally, the BLM’s methodology
focuses on rate predictability; making a
recurring calculation using the IPD–GDP
is a disincentive for solar or wind
development because future rates
change by uncertain amounts making
the BLM rates unpredictable. This final
rule does not change the annual
adjustment factor due to these
comments.
The regular adjustment factor also
provides improved predictability of
rates over time for renewable energy
developers compared to the BLM’s
previous periodic adjustments of the
MWh fee, which were based on a
combination of the annual weighted
average wholesale price per MWh and
the adjusted rate of return for certain
U.S. Treasury Bonds, both of which are
variable.
Paragraph (b)(3) clarifies that ‘‘F’’ is
the year of the grant or lease term,
which is the same number used for the
annual acreage rent under
§ 2806.52(a)(1)(iv). See § 2806.52(a) of

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this preamble for further discussion on
the year of the grant or lease term.
Paragraph (b)(4) clarifies that ‘‘G’’ is
the rate of return, which is set at seven
percent. By setting the rate of return in
this rule, the BLM increases the rate
predictability of its capacity fee. This
rate of return will not adjust during the
term of the authorization. In this final
rule, the rate of return is the
relationship of income to the total value
for a granted use of the public land
resource. The rate of return accounts for
the value of the authorization each year
for use of the resource on public lands
that is provided to the BLM through an
annual payment.
A comment recommended that the
BLM recalculate the rate of return using
a 30-year average rate of return for 10year Treasury Bond rates. The BLM
appreciates the suggested recalculation
of the rate of return over a 30-year
period. The BLM selected the 50-year
average of the 10-year Treasury Bond as
the reasonable rate to set its rate of
return for this rule. See the BLM’s
Regulatory Impact Analysis
accompanying this final rule for further
information on how the BLM calculated
the rate of return. No changes were
made in this final rule due to this
comment.
The 50-year simple (i.e., arithmetic)
average of the real annual return on 10year Treasury Bonds is approximately
seven percent. This 50-year period
includes times when the United States
went through periods of stagflation,
high inflation, economic boom, and
relatively calm market conditions. The
BLM’s use of the average of the 10-year
Treasury Bond rates is a reasonable
reflection of a modest return to the
government reflective of relatively low
risk to the public. The proposed seven
percent rate of return is also supported
by the Council of Economic Advisors,
which estimates a real return to U.S.
capital of around seven percent from
1960 to 2014 using data from the
National Income Product Accounts and
other sources.13 By setting the rate of
return in this final rule, it would not be
adjusted in the future, except by further
rulemaking.
One comment suggested that the rate
of return stay at two percent as currently
provided in BLM Manual 2806.60. The
comment further suggested that the
proposed increase from two to seven
percent does not appear to be reasonable
and is inconsistent with the Energy Act
of 2020. The updated rate setting
13 Council of Economic Advisers Issue Brief,
‘‘Discounting for Public Policy: Theory and Recent
Evidence on the Merits of Updating the Discount
Rate’’ (January 2017).

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methodology in this final rule includes
an increased rate of return, consistent
with the BLM’s authority under FLPMA
to collect fair market value. The change
in the rate of return is commensurate
with other sectors of the energy market
that base their return on a percentage of
the commodity or energy generation
value. It is appropriate that the rate of
return change when transitioning from a
capacity fee based on nameplate
capacities to one based on the value of
energy generation at market. The former
rate setting methodology (see BLM
Manual 2806.60) implemented the
authority of the Energy Act of 2020 by
reducing the rate of return to two
percent. In this final rule, the BLM is
applying the authority of the Energy Act
of 2020 to the MWh Rate as reductions
under § 2806.52(b) instead of reducing
the rate of return. In this final rule, the
BLM has determined that reductions
under § 2806.52(b) for solar and wind
energy are more meaningful than the
reductions in the Manual 2806.60 and
are necessary to promote the greatest
use of solar and wind energy resources
on the public lands. The BLM did not
change this section of the final rule in
response to this comment.
Paragraph (b)(5) clarifies that ‘‘H’’ is
the annual energy generated on public
lands for the right-of-way in question.
The BLM will issue a bill to coincide
with the calendar year based on the
annual certified statement provided to
the BLM that gives either the amount of
estimated or actual electricity generated
by the development. The payment for
the first year of energy generation will
be based on an estimate of energy
generation, and then the BLM will
determine final payment for that first
year based on actual energy generation.
The following years of payments made
in advance, pursuant to 504(g) of
FLPMA, will be based on the most
recent calendar year’s actual energy
generation reported on the certified
statement. Exception to using actual
energy generation is provided for, in
certain circumstances, under paragraph
(b)(5)(vi) of this section. Paragraph (vii)
addresses late payments specific to
underestimating energy generation in
certain circumstances.
Paragraph (b)(5) has changed from the
proposed rule due to public comments.
The BLM proposed to require
developers to provide an estimate for
each year of energy generation of a
development project to calculate the
payment in advance. Those estimated
energy generation amounts would be
updated after that calendar year using
actual energy generation amounts and
any over or underpayment would be
determined at that time. Revisions to

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this paragraph now provide in the
following subparagraphs that:
(i) The holder must submit an annual
certified statement to the BLM before
the first year of energy generation begins
or is scheduled to begin. Thereafter,
annual certified statements must be
submitted by the end of October.
(ii) Prior to the start of energy
generation, the holder must submit the
annual certified statement containing an
estimate of energy generation on the
right-of-way (estimate of first year’s
energy generation).
(iii) Once energy generation has
begun, the holder must submit to the
BLM an annual certified statement of
the most recent calendar year’s actual
energy generation on the right-of-way.
(iv) The BLM’s calculation for
payment of the capacity fee will be
based on the certified annual statement.
Calculation for payment of the capacity
fee for development projects that
contain both public and non-public
lands will be prorated by multiplying
the total energy generated by the
percentage of the total development area
made up of the right-of-way footprint on
public lands.
(v) If the year’s actual energy
generation exceeds or is less than the
amount of energy generation used to bill
for the payment in advance, the holder
will be billed, credited, or refunded for
the underpayment or overpayments
pursuant to §§ 2806.13(e) and 2806.16.
In no event will the total payment
required be less than the annual acreage
rent.
(vi) The BLM may approve a request
by a holder to provide a new estimate
of energy generation in certain
circumstances. Circumstances would
including those when energy generation
is expected to be interrupted, such as
with planned maintenance activities,
where the amount of energy generated is
expected to interrupt energy generation
by 25 percent or more, or where the
right-of-way holder is aware that the
energy generation in the subsequent
year will exceed the actual energy
generation for the previous year by 25
percent or more such that the BLM’s use
of the actual generation from the
previous year as the basis for a bill
would result in an underestimate of
more than 25 percent.
(vii) The BLM may assess a late
payment fee of 10 percent of actual
energy generation for the year in which
the underestimation occurs. The holder
will pay a late payment fee for each year
of underestimation if the right-of-way
holder underestimates energy
generation by 25 percent or more of the
actual energy generation or does not
provide the BLM with a new estimate

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when energy production will exceed the
previous year’s actual production by
more than 25 percent. The BLM may
decide not to assess the late payment if
the right-of-way holder provides an
adequate justification that the
underestimation was reasonably
unforeseeable prior to payment of the
annual bill, consistent with § 2805.12(e).
Some comments asserted that
penalties for underestimating generation
are inappropriate as factors outside of a
developer’s control, such as weather or
grid related interruptions, may cause
unexpected generation shortfalls.
Additionally, comments noted that
developers have every incentive to
maximize production, which may itself
cause a developer to underestimate
generation. The BLM has revised the
rule to reduce the potential that a holder
would be subject to a penalty while
minimizing the potential for
underestimation. Consistent with other
comments related to the term length
under 2801.9, the BLM has made
revisions to § 2806.52(b)(5) that are
consistent with revisions made under
§§ 2805.12(c)(8) and 2807.17(c). The
BLM revised paragraph (vi) and added
paragraph (vii) to this final rule due to
comments.
Pursuant to § 2805.12(c)(8), a holder
may receive a notice from the BLM of
their noncompliance with the right-ofway and that they are subject to rightof-way termination. Additionally, the
BLM may address a holder’s chronic
underestimation through existing
§ 2807.17(a), resulting in suspension or
termination of the authorization. The
BLM may make such a determination
after collecting relevant information,
including information provided
pursuant to § 2805.12(a)(15).
Some comments requested that the
rule preserve sensitive competitive
information amongst operators of solar
and wind energy development projects.
These comments suggested that the
BLM could allow developers to submit
generation data based on Form 923,
which is provided to the Energy
Information Administration. The final
rule does not carry forward the
suggested use of Form 923. The BLM
disagrees with waiting the additional
time to collect actual energy generation
and update or validate prior year bill
and payments with rights-of-way
holders. As suggested by commenters,
using Form 923 would delay billing for
actual energy generation amount by an
additional year, which is not acceptable
for the BLM’s responsible stewardship
of the public lands. No changes were
made due to this comment.
Section 2805.12(c)(8) sets the diligent
operation standards for solar and wind

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energy development projects and
provides steps to follow when a holder
expects to fail in meeting diligent
operation requirements. Holders may
follow the steps outlined in this section
to ensure compliance with this final
rule.
Paragraph (b)(6) of this section
describes where you may obtain a copy
of the current MWh rate schedule for
solar and wind energy generation.
Paragraph (b)(7) of this section
provides for periodic adjustments to the
MWh rate. This paragraph applies
unless you are an existing holder and
elect to continue paying under your
current rate adjustment method per
§ 2806.51(c).
Paragraph (b)(7)(i) of this section
clarifies that the rate from the MWh rate
schedule for the first year of energy
generation will not change once your
grant or lease is authorized. The annual
adjustment factor under
§ 2806.52(b)(1)(i) applies to the MWh
rate during the term of the grant or
lease. Any subsequent MWh rate
schedule updates will apply to new
grants and leases.
Paragraph (b)(7)(ii) of this section
provides that the MWh rate schedule
will be updated once every five years
consistent with the timing of acreage
rent adjustments. The MWh rate
schedule will include the annual
adjustment factor for the five-year
period it covers.
Paragraph (b)(8) of this section
provides that the general payment
provisions for rents under
§ 2806.14(a)(4) also apply to the
capacity fee.
Paragraph (c) applies unless you are
an existing grant or leaseholder and
elect to continue with your current MW
capacity fee adjustment method. The fee
is set at the time of authorization or reissuance and not adjusted further except
by the annual adjustment factor from
§ 2806.52(b)(2).
Some comments suggested that the
BLM should retain discretion under
§ 2805.12(e) to adjust rent and fee
values, including at the request of a
right-of-way applicant or holder. While
section 2805.12(e)(2) of this final rule
does not include a mechanism for
applicants or holders to request
alternative rent or fee rates in general,
the BLM has revised § 2806.52(b)(1)(i) to
identify circumstances where the BLM
would have discretion to select an
alternative MWh rate.
Some comments suggested a wide
range of potential fee structures to
address environmental and economic
factors. Some comments also requested
that the BLM clarify how the rents and
fee numbers were developed. The

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BLM’s development of the acreage rent
and capacity fee was an iterative process
that included consideration of the
BLM’s legal authority; taxpayer
concerns for the collection of reasonable
rent for the use of public lands and
resources; the BLM’s prior policies for
rents and fees and their impact to solar
and wind deployment on public lands;
and the national renewable energy goals
on public lands set in section 3004 of
the Energy Act of 2020. The BLM
initially solicited comments in
September 2021 after which the BLM
published interim guidance in Manual
section 2806.60—Rent.
Some comments requested a
publication or annual report from the
BLM on the payments it has received
from solar and wind energy
development projects. This information
can be found in the BLM’s annual
publication of Public Land Statistics,
which enumerates annual revenues
from energy resources including wind
and solar rents and fees.
Some comments requested that the
BLM provide fee reductions for projects
that are sited on previously disturbed
lands or outside of sensitive wildlife
habitats. The BLM contemplated various
methods and models by which to
potentially apply rate reductions in this
final rule. Additional information on the
alternatives considered may be seen in
the proposed rule’s preamble discussion
under subpart 2806. The BLM
determined that an across-the-board
reduction best meets national energy
goals. This methodology provides
flexibility and financial incentives
without regard to where projects may be
sited. Having reduced rent and fee rates
that are independent of location
complements the BLM’s ability to
update land use planning, which
defines where project applications may
be proposed and where projects will not
become obsolete if or when technology
advances and siting needs shift for
economic or environmental reasons.
One comment suggested that a holder
should be able to select whether they
wish to pay an acreage rent or capacity
fee. The BLM disagrees with this
comment. This final rule clearly
provides for both an acreage rent or a
capacity fee for solar and wind energy
development projects. Generally, the
acreage rent is required for the intensity
of use and the occupancy, including site
control, of the surface of the public
lands. The capacity fee reflects the value
of the energy generated from the solar or
wind energy resource located on public
lands. The BLM will collect the greater
of either the acreage rent or the capacity
fee for a solar or wind energy
development.

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One comment suggested rate
reductions be made available for
existing right-of-way holders who enter
into new PPAs for a project during the
term of an authorization, such as when
they repower. This final rule provides
for greatly increased rate predictability
for solar and wind energy development
rights-of-way. Under § 2806.52(b)(v), the
BLM provides an opportunity for
conditionally approving a reduction if it
receives a request with sufficient
documentation demonstrating that the
holder may qualify for the reduction
before the BLM issues the right-of-way.
No other opportunity for later qualifying
for a reduction is made available in this
rule as the reductions to its rates are
available prior to the BLM issuing the
ROW. The BLM believes that the
adjustments to improve rate
predictability, including allowing for a
longer term (see § 2801.9) for certain
rights-of-way, will provide for the
longer economical life of a particular
project. An operator or a holder of an
existing authorization may elect to keep
their current rate methodology,
including future adjustments that may
be made, if they do not wish to change
to the rate-setting methodology of this
final rule.
Some comments suggested that the 80
percent reduction of capacity fees
without any qualifying stipulations will
adversely distort the energy market and
land uses. The BLM does not expect this
final rule to alter the solar or wind
energy markets or uses of public lands
adversely. This final rule implements
the authority of the Energy Act of 2020
and direction of Executive Order 14008,
among others, that set goals to promote
the greatest use of solar and wind
energy resources on public lands. The
rule is intended to incentivize
development of wind and solar energy
projects on BLM-managed lands. The
BLM sees any resulting change that
benefits solar or wind in energy markets
as a positive development. See
Reductions and Discounts under 5.1 of
the Regulatory Impact Analysis for
further information on the 80 percent
reduction and the economic impacts of
the rule.
Some comments suggested that the
BLM should collect fair market value for
the use of federal lands under the BLM’s
rule. While FLPMA generally requires
the BLM to collect the fair market value
for the use of the public lands, the
Energy Act of 2020 provides the
Secretary of the Interior with additional
authority to reduce acreage rents and
capacity fees, including to less than fair
market value in certain circumstances.
The BLM is implementing this authority
to reduce the financial burden to solar

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and wind energy developers to promote
the national interest of developing a
clean energy economy.
Section 2806.54 Energy Storage
Facilities That are Not Part of a Solar
or Wind Energy Development
Section 2806.54 clarifies that the rent
the BLM determines for an energy
storage facility that is not part of a solar
or wind energy development facility is
based on the linear rent schedule.
Energy storage facilities may be
authorized separately from a solar or
wind energy development facility. In
these instances, the BLM will apply the
linear rent schedule unless the BLM
determines that the linear rent schedule
does not apply to the underlying rightof-way use under § 2806.70, such as
when the BLM may determine that a
small site rent schedule applies to an
energy storage facility.
The BLM will not charge the rent or
fee of a solar or wind energy
development right-of-way for an energy
storage facility that is separate and
independent from a right-of-way for an
energy generation facility. Charging a
capacity fee would be inappropriate as
no energy generation from the facility
would be occurring from the use of
public lands. Using the pastureland
rents for energy storage would also be
inappropriate, as use of those acreage
rates is intended to be coupled with the
capacity fee to determine solar and
wind energy generation payments for
use of public lands.
Sections 2806.60 through 2806.68 are
removed from the final rule. Information
formerly contained in these sections is
now found in sections 2806.50 through
2806.58.
Subpart 2807—Grant Administration
and Operation

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Section 2807.17 Under what
conditions may BLM suspend or
terminate my grant?
Section 2807.17 of this final rule is
updated based upon comments on
§ 2801.9 regarding term length and
updates to § 2805.12 regarding new
diligent operation requirements for solar
and wind energy development. See the
respective sections of this preamble for
further information on the term length
and the terms and conditions of grants
and leases for solar and wind energy.
Section 2807.17(c) provides that the
BLM may suspend or terminate a rightof-way upon abandonment. The BLM
presumes that a right-of-way holder has
abandoned its right-of-way by failing to
use it for a continuous 5-year period,
except for solar and wind energy. Solar
and wind energy rights-of-way are

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presumed to be abandoned after two
continuous years of insufficient
productivity or upon abandonment.
This section is updated consistent with
the new provision in § 2805.12(c)(8),
which provides for a holder to receive
notice of the BLM’s presumption and
gives a reasonable time to cure the
noncompliance with the diligent
operations requirement.
Section 2807.20 When must I amend
my application, seek an amendment of
my grant or lease, or obtain a new grant
or lease?
Section 2807.20 describes when a
right-of-way applicant must seek to
amend its application, grant, or lease.
Paragraph (b) clarifies that ‘‘except for
qualifying energy development grants
and leases per § 2806.51(c),’’ the
requirements for amending an
application or grant are the same as
processing a new application, including
payment of processing and monitoring
cost recovery fees. Section 2806.51(c)
provides a unique exception for existing
solar and wind energy rights-of-way
authorized before this final rule that
may convert to the rent adjustment
methodology of this final rule. See
§ 2806.51(c) of this preamble for further
information on qualifying
authorizations.
Paragraph (f) describes how the BLM
would administer an approved solar and
wind energy grant or lease if the holder
requests to change the rent adjustment
methodology. Any request would have
to be received within 2 years of the date
this rule becomes effective and would
be processed as an amendment by
which the BLM would re-issue the grant
or lease and update the terms and
conditions under § 2805.12 and rent
provisions under §§ 2806.50 through
2806.52. The BLM would be able to
collect or use processing and monitoring
costs under §§ 2804.14 and 2805.16 for
handling the request. See § 2806.51(c)
for further discussion regarding requests
to use the rent adjustment methodology
of this rule.
One comment suggested that State
and local governments should have a
shared decision-making role with the
BLM when the BLM considers reissuing a grant or lease to convert the
right-of-way over to the new rate
adjustment methodology. The BLM does
not agree with the suggestion that State
or local government offices should share
in a decision-making role when the
BLM decides whether to authorize a
change to the rent adjustment
methodology. Re-issuing an
authorization under this final rule is an
administrative action that will convert
existing authorized projects to the new

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rate setting methodology for the use of
BLM-administered public lands and
resources. The BLM will continue to
engage with the public, and Tribal,
Federal, State and local government
partners on the BLM’s management of
its public lands, as appropriate. The
BLM did not change this section of the
final rule.
Section 2807.21 May I assign or make
other changes to my grant or lease?
Section 2807.21 describes the
requirements for a holder seeking to
assign or make other changes to a grant
or lease.
Paragraph (e) clarifies that when the
BLM assigns a right-of-way from one
holder to another, it may modify a grant
or lease, such as by adding additional
terms and conditions. The paragraph
exempts solar and wind energy leases
from that provision unless
modifications are warranted under
§ 2805.15(e), which provides for
changes to terms and conditions as a
result of changes in legislation,
regulation, or as otherwise necessary to
protect the public health or safety or the
environment. This final rule removes
provisions that distinguished between
inside and outside DLAs for solar and
wind energy development. The BLM
may assign leases inside of DLAs
without competition.
One comment suggested that the BLM
should retain the authority to impose
additional requirements on solar and
wind projects. The commenter
expressed concern that the BLM may be
constrained when it comes to regulating
a bad operator especially with regards to
excepting a bond requirement and that
bond requirements should be mandatory
on solar and wind projects, so the BLM
does not have to clean up sites after
company closure or refusal to perform
reclamation. The BLM requires a bond
for all solar and wind energy grants and
leases. The BLM requires this bonding
upfront to cover reclamation costs and
to enforce the terms and conditions,
such as those for rent and capacity fees.
Paragraph (e) provides that the BLM,
when assigning a grant or lease to a new
holder, may modify the right-of-way and
add bonding and other requirements,
including additional terms and
conditions, except for wind and solar
leases which the BLM can only modify
when warranted as a result of changes
in legislation, regulation, or as
otherwise necessary to protect public
health or safety or the environment as
reflected in § 2805.15(e). The BLM also
has diligent development and operation
requirements, among other terms and
conditions, in § 2805.12 that further
ensure a holders’ compliance with the

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right-of-way authorization and all its
requirements. The BLM did not change
this section of the final rule.

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Subpart 2809—Competitive Process for
Solar and Wind Energy Development
Applications or Leases
Subpart 2809, ‘‘Competitive Process
for Leasing Lands for Solar and Wind
Energy Development Inside Designated
Leasing Areas’’ is dedicated to
competitive solar and wind energy
processes. In the final rule, Subpart
2809 generally applies the same
competitive process both within and
outside DLAs.
Section 2809.10 Competitive Process
for Energy Development Grants and
Leases
Section 2809.10, ‘‘Competitive
process for energy development grants
and leases,’’ applies to public lands
located both inside and outside of
DLAs. Paragraphs (a) through (d)
explain that the BLM may conduct a
competitive process to consider solar or
wind energy development applications
or leases: (1) on its own initiative; (2)
based on responses to a call for
nominations; (3) based on a request
submitted by a member of the public in
writing; or (4) when it receives two or
more competing applications. These
provisions incorporate the BLM’s broad
discretion under FLPMA to determine
under what circumstances it may utilize
a competitive process. This section is
revised to replace ‘‘offer’’ with
‘‘process’’ to remain consistent with this
section’s requirements for solar and
wind energy development grant and
leases competitive process.
The BLM has determined that it will
implement its discretion under FLPMA
to potentially utilize a competitive
process for lands both inside and
outside of DLAs and thus standardize a
competitive process where competitive
interest exists. More specifically, the
BLM will use the most appropriate
process given the circumstances of a
particular location, spurring more
competition for the most desirable areas,
while continuing to increase solar and
wind energy deployment consistent
with the statutory direction in the
Energy Act of 2020.
As proposed, prior paragraph (d) is
removed consistent with changes made
under § 2804.35(b) and elsewhere in
subpart 2809. The BLM has discretion to
process applications inside DLAs
without going through a competitive
process. Accepting applications inside
DLAs reduces timelines and costs and
removes barriers for considering
development projects where there is no
competitive interest.

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Proposed § 2809.10(e) would have
precluded the BLM from holding a
competitive process when the BLM has
accepted a complete application,
received a Plan of Development, entered
into a cost recovery agreement, and
published an EA or Draft EIS. Industry
comments suggested that the BLM
commit to not holding a competitive
process earlier than in the proposed
rule. In response to those comments, the
final rule establishes that the BLM will
not initiate a competitive process for
those lands where the BLM has
accepted a completed application,
received a Plan of Development, and
entered into a cost recovery agreement,
while removing the requirement that the
BLM must have published an EA or a
draft EIS.
The final rule also adds to
§ 2809.10(e) an exception referencing
§ 2804.25(c). Even where the BLM has
accepted a complete application,
received a Plan of Development, and
entered into a cost recovery agreement,
it may nonetheless offer lands in a
competitive process if the applicant has
not proceeded diligently as required by
§ 2804.25(c). These amendments give
the industry the certainty it needs to
proceed with projects while retaining
the BLM’s discretion to deny an
application or offer lands competitively
if the applicant does not proceed
diligently. In that way, these
amendments balance the BLM’s
obligations to incentivize renewable
energy development on public lands
and to recover a fair return for U.S.
taxpayers.
Some comments suggested that
requiring a competitive leasing process
in designated leasing areas has helped
ensure that only well-thought-out
projects are proposed. These
commenters raised concerns that
eliminating a required competitive
process will cause a rush of poorly
planned projects and will decrease use
of the designated leasing areas. Several
comments argued in favor of requiring
a competitive process in designated
areas, emphasizing that it shifts the
burden from taxpayers to those who
stand to profit, validates demand,
increases financial return for use of
public lands, drives innovation, and
ensures transparency and fairness in the
process. These comments expressed
concerns that non-competitive leasing
may discourage investment and lead to
inefficiencies.
In this final rule, the BLM’s change in
the use of competitive processes is
intended to provide flexibility in
addressing interest in the use of public
lands for solar and wind energy and will
not allow for or authorize poorly

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planned projects. The BLM retains its
discretion to authorize or deny solar or
wind energy development projects. As
explained in the preamble to the
proposed rule, the requirement to
undertake competitive processes for all
applications in DLA’s extends the
timeline and increases costs, creating a
barrier for authorizing projects in areas
where there is no competitive interest.
The BLM has broad discretion under
FLPMA to determine under what
circumstances it may utilize a
competitive process for lands both
inside and outside of DLAs and to use
competitive processes only where
competitive interest exists. The BLM
anticipates that accepting applications
in DLAs without the prerequisite of
holding a competitive process will
likely generate more applications in the
most desirable locations. The final rule
also provides the BLM with the
flexibility to utilize a competitive
process where there are multiple
competing applications. The purpose of
these changes is to ensure that the BLM
can use the most appropriate process
given the circumstances of a particular
location, which the BLM believes will
spur more competition for the most
desirable areas, while continuing to
increase solar and wind energy
deployment consistent with the
statutory direction in the Energy Act of
2020.
For the same reasons, the BLM
disagrees with the comments that
focusing the BLM’s competitive process
and resources to where there is
competitive interest on public lands is
a negative impact to taxpayers, demand,
financial return, innovation, and
transparency. This final rule improves
transparency over all processes of the
BLM’s administration of applications
and right-of-way authorizations and
achieves the goals set by the Energy Act
of 2020 and direction of Executive
Order 14008. Moreover, although DLAs
represent areas specifically designated
for renewable energy development, they
are not the only areas where such
development may be appropriate, nor
are they the only areas where use of a
competitive process may be appropriate.
These projects are complex and require
many different steps and actions to
occur to be successful. The BLM
believes offering areas outside of DLAs
for a competitive process is appropriate
and would help to meet the goals of the
Energy Act of 2020 and direction of
Executive Order 14008.
Some comments suggested leasing
should not be competitive, or at least
only be considered in specific
circumstances, such as when multiple
applications for the same area are

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submitted or when certain conditions
are met, such as when labor agreements
are not used. This section of the final
rule clarifies when the BLM may
conduct a competitive process,
including for competing applications
under paragraph (d). The BLM disagrees
that attaining an agreement to use
certain labor should determine whether
the BLM holds a competitive process or
not. The BLM’s discretion to hold a
competitive process includes when
there is competitive interest for that
system or land or upon the BLM’s own
initiative, among other reasons
identified in this section of the rule.
Some comments highlighted the
interest in a clear and standardized
process and suggested that the potential
for competition should be limited to
avoid deterring investment. In this final
rule, the BLM has provided a clear
process that the BLM will follow for
solar and wind energy development
projects when a competitive process is
held. However, the BLM does not agree
with comments to limit competition.
The BLM will generally hold a
competitive process where there is a
competitive interest, whether it is inside
or outside of designated leasing areas, or
on its own initiative.
Other comments recommended
adding steps to ensure no competition
exists before processing applications
without a competitive process.
Suggestions given to the BLM include
filing a notice in the local newspaper,
online, or in the Federal Register
whenever the BLM receives an
application requesting any other
applications to be submitted. This final
rule does not include provisions to
require solicitation of public interest
with every application submitted to the
BLM for a solar or wind energy
development. The Energy Act of 2020
and direction of Executive Order 14008
are clear in seeking expedited
deployment of renewable energy
projects on public lands. Adding
provisions in the BLM’s rules that
require additional steps to solicit
competitive interest where there may
not be any may slow the deployment of
renewable energy. Historically, the
majority of solar and wind rights-of-way
authorized on BLM-administered public
lands have been authorized after an
application process without a
competitive process, and there are only
six existing competitively issued leases,
which is only approximately six percent
of authorized development projects on
public lands. You may find information
on the BLM’s authorized and pending
solar and wind energy projects on its
website at: https://www.blm.gov/
programs/energy-and-minerals/

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renewable-energy/active-renewableprojects. More specifically, since the
BLM began using competitive processes
for permitting solar leases on BLM
public lands, the agency has held five
competitive processes for 16 parcels.
These have resulted in multiple bids for
nine parcels, a single bid for three
parcels, and no bids for four parcels. In
the circumstances that BLM held a
competitive process and received no
bids, the BLM had previously received
several expressions of interest and
applications for those public lands. The
BLM then held a competitive auction
resulting in no bids for three parcels.
The BLM did not change this section of
the final rule.
A comment requested that the final
rule clarify when the BLM will not
require an auction. The BLM does not
believe additional clarification is
necessary, as § 2809.10(e) provides that
the BLM would not offer lands through
a competitive process when the BLM
has accepted a completed application,
received a Plan of Development, and
entered into a cost recovery agreement.
One comment suggested that the final
rule clarify that the BLM should be
precluded from using a competitive
process to award a solar or wind energy
development lease or grant on an area
of public lands once an applicant has
either submitted a right-of-way
application for solar or wind energy
development or made substantial
investments in potentially developing
that area of the public lands. While the
proposed rule provided that BLM would
not offer lands in a competitive process
if four criteria were met, this final rule
removes the fourth proposed criterion in
section (e): ‘‘on publication of an
Environmental Assessment or Draft
Environmental Statement.’’ The final
rule retains the first three, such that the
BLM would not offer lands in a
competitive process for which it has
accepted a complete application (see
§ 2804.12(j)), received a Plan of
Development (see § 2804.12(b)), and
entered into a cost recovery agreement
(see § 2804.14). This change requires
fewer milestones to close the window
for holding a competitive process than
the proposed rule and improves
certainty for interested developers to
proceed with applications but it does
not move the threshold for prohibiting
competitive processes earlier than in the
existing regulations as the commenter
suggested.
In addition to the changes under
2809.10(e), the BLM revised § 2804.25(c)
to clarify that the BLM retains discretion
to deny an application where the
applicant does not proceed diligently.
An applicant’s failure to remain diligent

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in processing an application may result
in the BLM denying the application and
offering the lands competitively. These
amendments balance the BLM’s
obligations to incentivize renewable
energy development on public lands
and to recover a fair return for U.S.
taxpayers.
A comment suggested that the BLM
should not require a competitive
process where an applicant’s facilities
are located on both private and federal
lands and the applicant has secured
agreements with the adjacent
landowners. This final rule governs the
BLM’s administration of applications
and authorizations, including
competitive processes. The BLM will
consider all relevant and available
information when determining whether
a competitive process is appropriate,
including whether separate agreements
had already been met for adjacent lands.
However, this rule does not preclude
the BLM from holding a competitive
process when agreements are held for
adjacent lands, which would allow
developers and adjacent landholders to
effectively monopolize the use of the
public lands without first obtaining
authorization from the BLM. In
instances where the BLM believes it is
appropriate, it may determine to hold a
competitive process.
Other commenters suggested that the
BLM should only have the discretion to
move to a competitive process in the
initiation phase of a project and not
after an application is complete and the
cost recovery is funded. This final rule
maintains the BLM’s discretion to
determine whether there is a
competitive interest in the public lands.
In the BLM’s experience, some
applications progress more slowly than
others once the existing requirements of
the BLM rules are met. By requiring a
complete application pursuant to
§ 2804.12(j), a Plan of Development
pursuant to § 2804.12(b), and a cost
recovery agreement pursuant to
§ 2804.14, the BLM will help ensure that
applicants remain diligent in pursuing
their use of the public lands, while
preserving discretion to utilize a
competitive process. Even after that
point, § 2804.25(c) of the final rule
clarifies that the BLM retains discretion
to deny an application where the
applicant does not proceed diligently.
These additional conditions will not
unreasonably burden diligent applicants
and will help identify those applicants
who are not working with the BLM to
process applications diligently.

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Section 2809.11 How will the BLM call
for nominations?
Section 2809.11 is retitled to improve
consistency with this section of the final
rule. No changes were made to this
section due to comments. Consistent
with the change in terminology of
§ 2809.10, the BLM changed ‘‘offer’’
with ‘‘process’’ throughout this section.
Paragraph (a) provides that the BLM
may publish a notice in the Federal
Register calling for nominations of
lands to be offered through a
competitive process for solar and wind
energy development. Other notification
methods may also be used, such as a
newspaper of general circulation in the
affected area or the internet. The section
allows for the BLM’s discretionary use
of a competitive process discussed in
§ 2809.10. The paragraph would also
specify information that will be
included in a call for nominations as
follows:
(1) The date, time, and location by
which nominations must be submitted;
(2) The date by which nominators will
be notified of the BLM’s decision on
timely submissions;
(3) The area or areas for which
nominations are being requested; and
(4) The qualification for a nominator,
which must include at a minimum the
requirements for an applicant, see
§ 2803.10.
Paragraph (b) provides the
requirements for nominating a parcel of
land for a competitive process.
Paragraph (b)(1) requires payment of $5
per acre for nominated parcels. The
nomination fee is collected by the BLM
under its cost recovery authority under
Sections 304(b) and 504(g) of FLPMA,
and the portion not spent in processing
the nomination and preparing for a
competitive process may be refunded to
the nominator if not successful in the
competitive process. These fees
reimburse the BLM for the expense of
preparing and holding a competitive
process.
Paragraph (b)(2) requires the
nomination to include the nominator’s
name and address of record. This
information is necessary for the BLM to
communicate with the nominator about
a future competitive process for the
parcel.
Paragraph (b)(3) requires that a
nomination be accompanied by a legal
land description and a map of the parcel
of land. This information helps identify
nominated parcels for the competitive
process.
Paragraph (c) provides that the BLM
will not accept nomination submissions
that do not comply with this section or
from submitters who are not qualified
per § 2803.10 to hold a grant or lease.

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Paragraph (d) provides that a
nomination cannot be withdrawn except
by the BLM for cause, in which case the
nomination fee would be refunded.
Paragraph (e) provides that the
decision whether to hold a competitive
process in response to a nomination lies
in the BLM’s discretion.
Some comments requested that the
BLM make the nomination fee nonrefundable. One comment further
suggested that the BLM require ‘‘skin in
the game’’ from project proponents and
that the BLM should keep the fee to
cover at least any reasonable costs it
incurred in pursuing the nomination.
The BLM agrees with comments
suggesting that the fee should be used
in recovering its reasonable costs in
processing the nomination and
preparing for a competitive process. The
BLM’s authority under Sections 304(b)
and 504(g) of FLPMA allows for the use
of these funds in processing
applications. Per existing rules, the BLM
may refund the balance, if any, of
collected cost recovery funds when they
are no longer needed. Please see existing
subpart 2804, starting with § 2804.14,
for more information on the BLM’s
administration of cost recovery fees.
Section 2809.12 How will the BLM
select and prepare parcels?
Section 2809.12 describes how the
BLM identifies parcels suitable for
competitive processes. The BLM did not
make changes to this section of the final
rule in response to comments received,
except that, consistent with the change
in terminology of prior sections, the
BLM changed ‘‘offer’’ to ‘‘process’’
throughout this section. The BLM also
removed ‘‘on existing’’ when describing
land use designations to avoid
confusion and clarify that only existing
land use designations may be
considered.
Paragraph (a) clarifies that the BLM
may rely on any information it deems
relevant in identifying parcels for
competitive processes, but also
describes more precisely the most
common sources of information, which
include public nominations and existing
land use designations. The BLM is not
constrained to consider only these listed
sources of information when deciding
whether to conduct competitive
processes for certain parcels.
Paragraph (b) clarifies that the BLM
may conduct necessary studies and site
evaluation work, including applicable
environmental reviews and public
meetings, either before or after offering
lands for a competitive process. The
BLM has sometimes found that the
necessary studies and site evaluation
work cannot be completed until the

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competitive process is held and the
successful bidder has submitted an
application or Plan of Development. The
BLM must complete site-specific NEPA
analysis even when the BLM has
identified a successful bidder as the
presumptive leaseholder. The BLM
retains discretion to approve, approve
with modification, or deny a proposed
energy development.
The BLM revised the language of
proposed paragraph (c) to clarify that it
is the BLM’s choice whether to use a
competitive process or not and that such
choices do not constitute a decision to
approve or deny a grant or lease and are
not subject to appeal under 43 CFR part
4.
A comment suggested that under
paragraph (c), the final rule should
allow for administrative appeals, as it
relates to BLM procedures used to make
decisions. Paragraph (c) of the final rule
clarifies that the BLM’s choice about
whether to use a competitive process is
not a decision to grant or deny a rightof-way or otherwise final agency action;
instead it represents only an
intermediate step that may or may not
lead to a decision. The public’s ability
to administratively appeal an agency
decision to grant or deny a right-of-way
is unaffected by this provision. The
BLM will continue to provide ample
opportunities to the public for
engagement throughout both the
competitive and non-competitive
permitting processes. An appeal may be
considered when the BLM issues a
decision under 43 CFR part 2800.
A comment suggested that allowing
for an administrative appeal process to
challenge a BLM choice to use a noncompetitive process would assist the
BLM in identifying whether there is any
competitive interest in the public land,
getting a better return for the public.
The BLM disagrees with this comment.
Administrative appeals may be
submitted only for agency decisions (see
existing § 2801.10). Additionally,
allowing for administrative appeals over
interim choices by the BLM about
which procedures to follow to reach a
decision would likely delay its decisionmaking process substantially.
Section 2809.13 How will the BLM
conduct competitive processes?
Section 2809.13 is retitled from the
proposed rule consistent with other
changes to replace ‘‘offer’’ with
‘‘process.’’ The change from the
proposed rule to read ‘‘process’’ when
describing the BLM’s competitive
process is made throughout this section
when appropriate.
This section describes how the BLM
conducts competitive processes.

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Paragraph (b) provides that the BLM
publishes a notice of competitive
process in the Federal Register and
through other notification methods,
such as a newspaper of general
circulation in the area affected or the
internet. Paragraph (b)(7) clarifies that
the notice of competitive process would
state whether a successful bidder would
become a preferred applicant or a
presumptive leaseholder. Preferred
applicants are required to meet
application submission requirements
under § 2804.12, and presumptive
leaseholders are required to submit a
Plan of Development per § 2809.18. The
preferred applicants and presumptive
leaseholders are discussed further in
§ 2809.15.
Under paragraph (c) of this final rule,
the BLM will notify nominators of its
decision to conduct a competitive
process at least 30 days in advance of
the bidding for the lands that were
nominated if the nominator has paid the
nomination fees and demonstrated
qualifications to hold a grant or lease.
Some comments suggested that under
paragraph (b)(7) the BLM should
continue to require a successful bidder
to submit a Plan of Development. The
BLM agrees with these comments. A
Plan of Development is required in this
final rule by a presumptive leaseholder
under paragraph 2809.15(a)(ii) and by a
preferred applicant who would follow
the application process for solar and
wind energy applications, including the
submission of a Plan of Development
required under § 2804.25(c).
Section 2809.15 How will the BLM
select the successful bidder?
Section 2809.15 explains how the
successful bidder is selected. In this
final rule, the distinction between
preferred applicants and presumptive
leaseholders reflects the fact that the
BLM may conduct competitive
processes in a variety of circumstances
with different outcomes. The distinction
between presumptive leaseholder and
preferred applicant is intended to
ensure that the BLM can expedite
approval of proposed projects in areas
where the environmental impacts of
solar and wind energy development
have been previously analyzed and
disclosed through a land use planning
process. This will help ensure that the
BLM does not commit public land
resources before completing the
necessary analyses. This section is also
revised, consistent with other changes
in this rule, to refer to ‘‘process’’ where
appropriate when describing the BLM’s
competitive process.
Paragraph (a) of this final rule
provides that the highest bidder, prior to

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any variable offsets, is the successful
bidder. Successful bidders may become
either the presumptive leaseholder or
the preferred applicant.
The term ‘‘presumptive leaseholder’’
describes situations in which at least
one round of environmental review for
solar or wind energy development has
been conducted before the competitive
process is held, so that the
environmental impacts of potential
development are relatively well
understood before the competitive
process is held and the successful
bidder has a high likelihood of being
able to obtain an authorization to
develop its proposed project. As set
forth in paragraph (b)(1)(i), a successful
bidder would only be designated as a
presumptive leaseholder if the lands for
which the competitive process is held
are located within a DLA and the BLM
has indicated in advance that the
successful bidder would become a
presumptive leaseholder (see also
§ 2809.13(b)(7)). These requirements
would limit the use of the term
‘‘presumptive leaseholder’’ to situations
in which the BLM has previously
completed an environmental analysis
for solar or wind energy development in
the area through the land use planning
process and has specified in advance
(through the notice of competitive
process) many of the terms, conditions,
and mitigation measures that would
need to be incorporated into an
approved authorization. A presumptive
leaseholder does not have to complete
the initial application review stage,
which is designed to ensure that the site
is generally appropriate for solar or
wind energy development. A
presumptive leaseholder has site control
for a solar or wind energy development,
precluding other competing solar or
wind energy development projects from
siting on that land, unless allowed by
the presumptive leaseholder. The BLM
would also not process other
applications for use of that land unless
allowed by the presumptive leaseholder.
This final rule also recognizes that
even with a presumptive leaseholder, an
additional site-specific environmental
analysis may be required before the
BLM irretrievably commits to allowing
a facility to be developed. The BLM
retains its full discretion in considering
whether to approve a presumptive
leaseholder’s proposal based on sitespecific environmental analysis, which
would typically be tiered to the areawide environmental analysis
accompanying the identification of the
area as a DLA. Paragraph (b)(1)(ii)
therefore notes that the presumptive
leaseholder’s right to develop a project
on the site is contingent upon the BLM’s

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approval of the presumptive
leaseholder’s Plan of Development.
Once the BLM approves the proposed
Plan of Development, following a sitespecific environmental analysis, a lease
could be awarded, conferring a right to
develop a project on the site, and the
presumptive leaseholder would become
a leaseholder.
In other cases, the BLM could conduct
a competitive process without having
completed an initial environmental
analysis for solar or wind energy
development for that area. In such cases,
as set forth in paragraph (b)(2), the
successful bidder would become the
‘‘preferred applicant’’ and would obtain
only the exclusive right to submit an
application for solar or wind energy
development on that site without
further competition from other
applicants for solar or wind energy
development. Such an application
would be processed under subpart 2804
in the same manner as other, noncompetitive applications. The BLM
would conduct a full environmental
analysis before the preferred applicant
may obtain a grant and the right to
develop a project on the site. A
preferred applicant that fails to meet the
requirements of subpart 2804 may lose
their status as the preferred applicant,
and the BLM may deny their application
consistent with § 2804.26.
Paragraph (b) provides that a
successful bidder becomes a
presumptive leaseholder or preferred
applicant only after making payments
required in paragraph (d) of this section
and satisfying the requirements for
holding a grant or lease under § 2803.10.
The BLM could move on to the next
highest bidder or re-offer the lands
under § 2809.17 if the successful bidder
does not satisfy these requirements.
Paragraph (b)(1) describes the
requirements to become a presumptive
leaseholder, which are that the public
lands successfully bid upon are located
within a DLA and that the notice of
competitive process indicated
successful bidders would become
presumptive leaseholders. This
paragraph also provides that the BLM
would only award a presumptive
leaseholder a lease if the BLM approves
the Plan of Development that is
submitted in accordance with
§ 2804.25(c).
Paragraph (b)(2) describes the
requirements for a preferred applicant.
A successful bidder who does not
become a presumptive leaseholder in
accordance with paragraph (b)(1) would
become a preferred applicant. The BLM
would process applications for a grant
or lease under § 2809.12. As with
presumptive leaseholders, approval of a

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preferred applicant’s application is not
guaranteed. However, the BLM would
not process other applications for solar
and wind energy development on lands
where a preferred applicant has been
identified, unless allowed by the
preferred applicant.
The BLM may consider issuing
authorizations for other uses, such as
roadways, testing facilities, recreation
permits, or even rights-of-way under
MLA authority on the lands for which
there is a preferred applicant.
Processing authorizations for other uses
under Title V of FLPMA would be
performed under subpart 2804.
Recreation permits and rights-of-way
under MLA authority would be
processed under parts 2920 and 2880,
respectively. In some instances, such as
with applications for incompatible uses,
the BLM may determine that the
proposed uses would be incompatible,
and therefore that processing these other
applications must wait until it issues a
decision on a preferred applicant’s
application for solar or wind energy
development.
Previous paragraphs (b) and (c) are
redesignated as (c) and (d) respectively.
Redesignated paragraph (c) is not
revised; it provides that the BLM will
determine variable offsets for the
successful bidder in accordance with
§ 2809.16.
Redesignated paragraph (d) provides
for bidder payment terms. Paragraph
(d)(1) provides for certain payment
methods, such as personal check,
cashier’s check, certified check, bank
draft, or money order, as well as other
methods deemed acceptable by the
BLM, should be paid to the Department
of the Interior—Bureau of Land
Management.
Paragraph (d)(2) requires payment of
20 percent of the bonus bid and the
minimum bid amount by the close of
official business hours on the day on
which the BLM conducts the
competitive process or other time the
BLM has specified in its notice.
Paragraph (d)(3) requires payment of
the balance of the bonus bid within 15
days after the day on which the BLM
conducts the competitive process.
Variable offsets are applied under
paragraph (c) of this section. Such
payments are made to the BLM office
conducting the competitive process.
Paragraph (d)(4) requires payment
within 15 days after the day on which
the BLM conducts the competitive
process to pay: for preferred applicants,
the application filing fee under
§ 2804.12(c) less any application fee
already paid under § 2809.11(c)(1); or
for presumptive leaseholders, the

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acreage rent for the first full year of the
lease as provided in subpart 2806.
Paragraph (d)(5) clarifies that the BLM
may require successful bidders to pay
reasonable costs in addition to the
application filing fee when processing
an application. Additional reasonable
costs may include a Category 6 cost
recovery for the BLM to complete
processing the application. If a Category
6 cost recovery fee is required, it will be
reduced by the amount of the
application filing fee already paid. See
§ 2804.19 of existing regulations for
further information on Category 6 cost
recovery.
Paragraph (e) explains that the
successful bidder will not become a
preferred applicant or a presumptive
leaseholder and the BLM will keep all
money that has been submitted with the
competitive process if the successful
bidder does not satisfy the payment
terms under paragraph (d) of this
section. In such a case, the BLM could
proceed to the next highest bidder or reoffer the lands through a competitive
process under § 2809.17.
A comment questioned the rationale
behind determining the highest bidder
as the presumptive leaseholder instead
of the BLM making an offer to the
highest bidder. The commenter
suggested that the BLM would then offer
the lease to subsequent bidders if the
preceding highest bidder declines. The
BLM’s competitive process in this final
rule informs prospective bidders what
they would be bidding for in advance of
a competitive process. The BLM’s
required process under this final rule
provides important information to
prospective bidders up front, reducing
uncertainty on what they may bid on.
Prospective bidders will be able to bid
more confidently with that information.
This will also likely result in more and
higher bids than would be received if
the BLM provided such information
after a competitive process and will
reduce the need for the BLM to engage
the second highest bidder should the
highest bidder decline.
The BLM understands from a
comment that there may have been
some confusion on how the rule
distinguishes between holding a
competitive process and selecting a
presumptive leaseholder or preferred
applicant. In this final rule, § 2809.15(b)
makes clear that both of the following
criteria must be met to be a presumptive
leaseholder: first, lands offered must be
located within a DLA, and second, the
notice of competitive process must
indicate that bidders are bidding to
become a presumptive leaseholder. The
requirement that the lands be within a
DLA is important because DLAs, by

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definition, have been subject to prior
environmental analysis and a land use
plan decision to designate the area for
solar or wind energy leasing. The
environmental analysis would have
identified potential conflicts and
assessed the environmental impacts of
siting a solar or wind energy generation
facility, and through the land use
planning process the BLM would have
determined any necessary mitigation
measures prior to the BLM offering the
site for leasing. The requirement that the
notice of competitive process must
indicate that bidders are bidding to
become a presumptive leaseholder,
meanwhile, is important because it
ensures that the terms and
consequences of the competitive process
are clear to all parties before the bidding
occurs, and because it retains the BLM’s
discretion to conduct a competitive
process for a preferred applicant, rather
than a presumptive leaseholder, even
within a DLA.
Some comments expressed concern
that the BLM continues to determine
that processing of applications for
‘‘incompatible’’ uses must wait until it
issues a decision for a first-in-line solar
or wind energy development and
believe this violates the intent of
FLPMA. Commenters believed the
language of the rule is unclear about
whether these other applications are
from other applicants for a similar rightof-way or whether it would apply to
applications for other land uses. These
commenters assert that either scenario is
inconsistent with FLPMA’s multiple-use
mandate.
In this portion of the rule, the BLM’s
presumption is that the BLM has
already identified a ‘‘preferred
applicant’’ or that the lands have
already been identified in the BLM’s
land use planning process as a DLA.
The FLPMA gives BLM discretion as to
how it will process applications,
including competing ones for the same
parcel. This does not violate FLPMA’s
multiple-use mandate.
Section 2809.16 When do variable
offsets apply?
Section 2809.16 provides that a
successful bidder may be eligible for a
variable offset of bonus bids. This
section is also revised, consistent with
other changes in this rule, to read as
‘‘process’’ where appropriate when
describing the BLM’s competitive
process.
Paragraph (c) in this final rule
clarifies to readers that the offsets are
not limited explicitly to what is listed
and that the BLM may use other factors,
including progressive steps towards the
listed factors.

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Paragraph (c)(10) is unchanged except
for formatting to account for new
paragraphs (c)(11) and (12).
Paragraph (c)(11) provides an
incentive for use of items that qualify
for the Domestic Content preference in
solar and wind energy generation
facilities on public lands, to
complement the fee reduction described
in § 2806.52(b)(1)(iii). To qualify for the
Domestic Content variable offset,
prospective bidders must demonstrate
how they will meet the thresholds to
qualify for the variable offset. Similar to
the Domestic Content reduction for the
capacity fee described in
2806.52(b)(1)(iii), the thresholds
identified in the notice of competitive
process are consistent with the
requirements for the domestic content
preference in 2 CFR part 184. A
prospective bidder is required to
provide sufficient documentation to the
BLM prior to the competitive process to
show how the bidder qualifies or will
qualify for this variable offset. This may
be documentation in an initial Plan of
Development provided to the BLM or
other methods discussed in
§ 2806.52(b)(1)(v) of this preamble. As
discussed below, the BLM may hold in
suspense the amounts corresponding to
the variable offset until construction of
the facility is substantially complete or
the successful bidder otherwise
demonstrates to the BLM that the
project has met the domestic content
thresholds.
Some comments suggested that
including a requirement for a domestic
content preference as a variable offset
would raise the cost to taxpayers. The
BLM disagrees with commenters that
this rule will increase costs to taxpayers.
This final rule does not require bidders
or holders to qualify for the Domestic
Content preference as a variable offset or
other reductions and variable offsets. As
the comments were based on an
incorrect assumption that the rule
requires buying domestic equipment, no
change was made in response to
comments.
Paragraph (c)(12) provides an
incentive for use of qualifying PLAs,
such as during the construction of a
solar or wind energy generation facility
on public lands, to complement the fee
reduction described in
§ 2806.52(b)(1)(iv). To receive the PLA
variable offset, prospective bidders must
demonstrate how they qualify in the
notice of competitive process. A
prospective bidder is required to
provide sufficient documentation to the
BLM to show how they qualify, such as
in an initial Plan of Development or
other methods discussed in
§ 2806.52(b)(1)(v) of this final rule. The

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BLM may hold in suspense the amounts
corresponding to the variable offset
until construction of the facility is
substantially complete or the successful
bidder can otherwise demonstrate to the
BLM that the PLA has been executed for
the facility.
Some comments supported the use of
a PLA as a basis for offering a variable
offset. These comments requested that
the BLM hold a second competitive
process if the BLM does not receive
bidders qualifying for a PLA variable
offset. This second competitive process
would allow for other potential bidders
to qualify. The final rule does not limit
the number of competitive processes
that the BLM may hold. However, the
BLM has included PLAs as an optional
variable offset.
Some comments noted that union
labor laws vary from State to State,
suggesting that oversight should be by
the State. This final rule provides a
variable offset for interested bidders
when using a qualifying PLA for
competitive processes for solar or wind
energy. The BLM’s offer of a PLA
variable offset does not rely on or
necessarily preclude applicable State
laws as they may apply to project labor.
The BLM may not approve a variable
offset from a bidder if it does not
comply with applicable laws.
Some commenters disagreed with the
BLM offering variable offsets, such as
for domestic content and the use of
union labor, because developers may
also receive reduced payments under
§ 2806.52. This final rule offers a bidder
potential benefits from both a variable
offset and a capacity fee reduction. The
BLM believes these variable offsets will
incentivize prospective bidders to
initiate projects with known benefits
and approaches that will further benefit
the public. Moreover, as described
above, reductions to the capacity fee
under § 2806.52(b) will promote the
greatest use of solar and wind energy
resources on public lands consistent
with 43 U.S.C. 3003.
Paragraph (c)(13) provides that the
BLM may use other factors when
determining whether additional types of
variable offsets for a competitive process
are appropriate.
Some comments requested additional
variable offsets to promote responsible
wind and solar development, using
efficient technology, agreements with
local authorities that benefit
communities, redevelopment of
disturbed sites, and combining or
collocating energy infrastructure. The
final rule continues to provide an
opportunity for additional variable
offsets in a competitive process under
§ 2809.16(c)(13). The BLM will describe

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the additional variable offsets, including
how you may qualify for such
additional variable offsets, in the notice
of competitive process.
Paragraph (e) provides for bidders to
qualify for a variable offset after the
BLM holds a competitive process. This
final rule recognizes that a bidder may
not be able to demonstrate the
qualifications for some variable offsets
to the BLM’s satisfaction until after the
BLM holds the competitive process,
such as with new provisions in
§§ 2809.16(c)(11) or 2809.16(c)(12) for
energy development facilities that
would contain items qualifying for the
Domestic Content preference or use of a
PLA. A bidder may conditionally
qualify for a variable offset before the
competitive process and then later
demonstrate their qualification to the
BLM and perfect their qualification. The
BLM will describe in the notice of
competitive process the way a bidder
may conditionally qualify for the
variable offset and could include
methods such as a written statement to
the BLM that they intend to qualify for
the variable offset. The bidder, if
successful, must later demonstrate to
the BLM that they have qualified for the
variable offset. The BLM may set a
deadline in the notice for bidders to
demonstrate that the proposed facility
qualifies for the variable offset. If the
bidder does not qualify for the variable
offset in the time provided or the bidder
is not able to adequately demonstrate
they qualify for the variable offset, the
U.S. Government will retain the bid
money as the balance of the bonus bid.
A comment stated that if the BLM sets
a deadline to qualify for a variable offset
in the notice of competitive process,
there should be a reasonable deadline
given to demonstrate qualifications. The
BLM agrees with this comment and
provides a deadline, including the
timeframe to qualify for the variable
offset, in its notice of competitive
process. See § 2809.16(e) of this part.
Section 2809.17 Will the BLM ever
reject bids or re-conduct a competitive
process?
Section 2809.17 identifies situations
when the BLM may reject a bid, offer a
lease to another bidder, or re-offer a
parcel. This section is retitled from the
proposed rule, consistent with other
changes in the final rule to read
‘‘process’’ when describing the BLM’s
competitive process.
Paragraph (b) provides that the BLM
may make the next highest bidder the
successful bidder if the named
successful bidder does not satisfy the
successful bidder requirements
identified under § 2809.15, does not

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execute the lease, or is for any reason
disqualified from holding the lease.
As proposed, paragraph (d) is
removed from this section as it is
unnecessary with other revisions made
in this final rule to make public lands
inside of DLAs available to application
without a competitive process.
Section 2809.18 What terms and
conditions apply to a solar or wind
energy development lease?
Section 2809.18 lists the terms and
conditions of solar and wind energy
leases, which are issued inside of areas
classified or allocated for solar or wind
energy (e.g., DLAs).
Paragraph (a) clarifies that a lease
awarded from a competitive process
provides site control to a lessee.
However, the presumptive leaseholder
may not construct any facilities on the
right-of-way until the BLM issues a
subsequent notice to proceed, see
paragraph 2809.15(b)(1)(ii) of this final
rule. The term of a lease is consistent
with § 2805.11(c) of this final rule,
which provides for a reasonable term up
to 50 years, considering the cost of the
facility, its useful life, and the public
purpose it serves.
Paragraph (b) provides for rent terms
for solar and wind energy leases as
specified in § 2806.52.
Paragraph (f) provides that lease
assignments are applied for under
§ 2807.21. The BLM will not make any
changes to the lease terms or conditions,
as provided in § 2807.21(e), except for
modifications required under
§ 2805.15(e). Changes to right-of-way
terms or conditions would involve an
amendment action by the BLM in
addition to the assignment action.
One comment recommended that the
BLM adjust the terms and conditions
with an assignment to provide for land
access, lease length, processes,
collaboration with other agencies, and
decommissioning. This final rule
maintains the BLM’s process for
assigning leases. Generally, a solar or
wind energy lease assignment is an
administrative action transferring the
lease from a holder to a prospective
holder. The BLM’s analysis to approve
or approve with modification the
development lease includes analyzing
the access, lease term length,
participation from public and partners,
and the end-of-life decommissioning
and restoration of the public lands. The
BLM does not need to revisit these
considerations before assigning a lease
unless there are substantial changes that
may justify a change to the lease. For
example, the BLM may modify a lease
under § 2805.15(e), which reserve the
BLM’s right to change the terms and

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conditions as a result in changes in
legislation, regulation, or as otherwise
necessary to protect public health or
safety or the environment.
Section 2809.19 Applications in
Designated Leasing Areas or on Lands
That Later Become Designated Leasing
Areas
As proposed, Section 2809.19 is
removed from the BLM’s rules in its
entirety. In this former section, the BLM
explained how it would evaluate
applications for public lands that later
become a DLA. The former section is
inconsistent with the changes in this
rule that allow for applications in DLAs
without first holding a competitive
process. Because designation of a DLA
does not preclude non-competitive
leasing, there is no need for the BLM to
automatically suspend a noncompetitive leasing application because
the lands at issue are being considered
for designation. At the same time, the
BLM may in its discretion deny an
application or assign the application a
low priority under § 2804.35.
Some commenters supported the BLM
making public lands inside DLAs
available for non-competitive leasing by
application. These commenters
continued to suggest that the BLM
should provide public notice regarding
how the BLM will handle noncompetitive lease applications. The
notice should provide for at least a 30day cutoff date for any expressions of
interest regarding a competitive interest
for offering lands within the DLA. The
BLM agrees with comments that notice
to the public is appropriate regarding
how the BLM will administer solar and
wind energy applications in an area
affected by a land use plan amendment.
However, each planning action or
programmatic analysis is unique, and
the BLM will respond to the unique
conditions for solar and wind energy
applications specific to that plan
amendment or programmatic analysis.
This may or may not include a period
of time in which the BLM would
continue to accept applications.
Severability
Existing § 2801.8 provides: ‘‘If a court
holds any provisions of the regulations
in this part or their applicability to any
person or circumstances invalid, the
remainder of these rules and their
applicability to other people or
circumstances will not be affected.’’ If
any portion of this final rule were to be
stayed or invalidated by a reviewing
court, the remaining elements would
continue to provide BLM with
important and independently effective
tools relating to the administration of its

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right-of-way and renewable energy
programs. Hence, if a court prevents any
provision of one part of this rule from
taking effect, that should not affect the
other parts of the rule. The remaining
provisions would remain in force
because they could still operate
sensibly.
For example, the provisions that
reduce rents and fees to implement the
Energy Act of 2020 may function
independently of the rest of the rule.
Indeed, each particular change in rents
and fees may function independently.
Thus, if a court were to invalidate the
Domestic Content reduction or Project
Labor Agreement reduction, the other
rent and fee provisions should remain
undisturbed. Similarly, the provisions
that reduce rents and fees may function
independently of the provisions that
allow the BLM to choose whether to
conduct competitive processes inside
and outside DLAs.
V. Procedural Matters
Regulatory Planning and Review
(Executive Orders 12866 and 13563)
and Modernizing Regulatory Review
(Executive Order 14094)
Executive Order (E.O.) 12866 provides
that the Office of Information and
Regulatory Affairs (OIRA) in the Office
of Management and Budget will review
all significant rules. E.O. 14094 updates
the significance criteria in section 3(f) of
E.O. 12866.
OIRA has determined that this final
rule is a ‘‘significant regulatory action’’
within the scope of E.O. 12866, as
amended by E.O. 14094.
The BLM’s Regulatory Impact
Analysis concluded that the rule may
have an annual effect on the economy
of $200 million or more. These effects
are associated with construction of
projects induced by this rule.
Additionally, the BLM estimated that
the rule would have distributional
impacts in the form of transfer payments
from right-of-way applicants and
holders to the BLM. Transfer payments
are monetary payments from one group
to another that do not affect total
resources available to society. While
disclosing the estimated transfers are
important for describing the
distributional effects of the rule, these
payments should not be included in the
estimated costs and benefits per OMB
Circular A–4.
For more detailed information, see the
Regulatory Impact Analysis for
Revisions to 43 CFR 2800 (Regulatory
Impact Analysis) prepared for this rule.
This Regulatory Impact Analysis has
been posted in the docket for the rule on
the Federal eRulemaking Portal: https://

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www.regulations.gov. In the Searchbox,
enter ‘‘RIN 1004–AE78,’’ click the
‘‘Search’’ button, open the Docket
Folder, and look under Supporting
Documents.
E.O. 13563 reaffirms the principles of
E.O. 12866 while calling for
improvements in the Nation’s regulatory
system to promote predictability, reduce
uncertainty, and use the best, most
innovative, and least burdensome tools
for achieving regulatory ends. The E.O.
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.
E.O. 13563 emphasizes further that
regulations must be based on the best
available science and that the rule
making process must allow for public
participation and an open exchange of
ideas. The BLM has developed this rule
in a manner consistent with these
requirements.
Regulatory Flexibility Act
This rule will not likely have a
significant economic effect on a
substantial number of small entities
under the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601 et seq.). The RFA
generally requires that Federal agencies
prepare a regulatory flexibility analysis
for rules subject to the ‘‘notice-andcomment’’ rulemaking requirements
found in the Administrative Procedure
Act (5 U.S.C. 500 et seq.), if the rule
would have a significant economic
impact, whether detrimental or
beneficial, on a substantial number of
small entities. See 5 U.S.C. 601–612.
Congress enacted the RFA to ensure that
government regulations do not
unnecessarily or disproportionately
burden small entities. Small entities
include small businesses, small
governmental jurisdictions, and small
not-for-profit enterprises.
The BLM reviewed the Small
Business Size standards for the affected
industries. We determined that a small
share of the entities in the affected
industries are small businesses as
defined by the Small Business Act
(SBA). However, the BLM believes that
the impact on the small entities is not
significant. Although the rule could
potentially affect a substantial number
of small entities, the BLM does not
believe that these effects would be
economically significant.
The rule would benefit small
businesses by streamlining the BLM’s
processes and reducing annual rent and
capacity fee payments. These reductions
may motivate investment in additional
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freeing up money that would have
otherwise been paid to the BLM as rents
or fees. The rule also modifies
provisions that allow for an entity to
request a waiver or reduction to annual
rent and capacity fee payments.
For the purpose of conducting its
review pursuant to the RFA, the BLM
believes that the rule would not likely
have a ‘‘significant economic impact on
a substantial number of small entities,’’
as that phrase is used in 5 U.S.C. 605.
Therefore, the BLM has not prepared a
final regulatory flexibility analysis.
Some comments noted that they
believe there has been insufficient
analysis on this rule and request the
BLM perform an initial and final
regulatory flexibility analysis, as it is
required by Sections 603 and 604 of the
Regulatory Flexibility Act for rules that
may have a significant economic impact
on a substantial number of small
business and governmental entities.
Some commenters also believe the BLM
has broken down connected and
interrelated rule-making processes to
avoid significance and therefore has
failed to conduct the necessary impacts
analysis under the Regulatory
Flexibility Act, NEPA, E.O. 12866 and
other applicable authorities as required
under the Administrative Procedure
Act.
The BLM determines that solar and
wind projects with generating capacities
of less than 100 MW have average
annual receipts of $5.2 million (solar)
and $4.1 million (wind), which falls
within the range of receipts identified
for small businesses in the SBA size
standards. The average size of projects
currently under review by the BLM is
500MW. Also, projects smaller than
100MW may still fail to be small
businesses if they are owned by larger
corporations or governmental entities.
While it is reasonable to expect that
some small businesses will be affected,
it is not expected to be a substantial
number. Further, the principal effect
will be a reduction in rents and capacity
fees for the small businesses—a benefit.
In general, the share of rents and
capacity fees is small relative to project
revenues. Therefore, the benefits are not
a significant economic impact on the
small businesses.
Congressional Review Act
This action is subject to the CRA, and
BLM will submit a rule report to each
chamber of Congress and to the
Comptroller General of the United
States. This action meets the criteria in
5 U.S.C. 804(2).
Comment Summary: In response to
the proposed rule, a commenter
requested that the BLM explain

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contradictory conclusions of regulatory
impact in accordance with the
Congressional Review Act and E.O
12866, and coordinate with local
governments and businesses to collect
inclusive and broad economic data to
make an informed determination.
Response: The commenter’s concern
has been overtaken because DOI will
report to Congress on the promulgation
of this rule prior to its effective date.
The report will state that the Office of
Information and Regulatory Affairs has
determined that this rule meets the
criteria set forth in 5 U.S.C. 804(2).’’
Unfunded Mandates Reform Act
This rule does not impose an
unfunded mandate on State, local, or
Tribal governments, or the private sector
of more than $100 million per year. The
rule does not have a significant or
unique effect on State, local, or Tribal
governments, or the private sector.
Under the Unfunded Mandates Reform
Act (UMRA) (2 U.S.C. 1531 et seq.),
agencies must prepare a written
statement about benefits and costs, prior
to issuing a proposed or final rule that
may result in aggregate expenditure by
State, local, and Tribal governments, or
the private sector, of $100 million or
more in any 1 year.
This rule is not subject to the
requirements under the UMRA. The rule
does not contain a Federal mandate that
may result in expenditures of $100
million or more for State, local, and
Tribal governments, in the aggregate, or
to the private sector in any one year.
The rule would not significantly or
uniquely affect small governments. A
statement containing the information
required by the UMRA is not required.
One comment requested that the BLM
submit documentation that is complete,
transparent, and factual for this
rulemaking and that is informed by
economic data obtained through
coordination with local governments
and a diverse range of private sector
industries, such as grazing, mining and
recreation. The resubmitted
documentation should support the
claim that this rule does not impose an
unfunded mandate under the UMRA. If
a finding shows that the rule does
impose an unfunded mandate, then the
BLM must complete a cost and benefit
analysis as required by the UMRA. The
BLM disagrees that this rule requires
resubmitting documentation supporting
the BLM’s unfunded mandate
determination. This final rule, including
its Regulatory Impact Analysis, clearly,
transparently, and factually discusses
the impacts of the rule, which governs
the BLM’s administration of
applications and right-of-way grants and

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leases for solar and wind energy. This
rule does not result in Tribal, State, or
local governments having to expend
funds. Therefore, this rule does not
impose an unfunded federal mandate
and does not require a cost and benefit
analysis. In any event, this rule and the
accompanying Regulatory Impact
Analysis provide all the information the
UMRA requires.
Governmental Actions and Interference
With Constitutionally Protected Property
Right—Takings (E.O. 12630)
This rule does not affect a taking of
private property or otherwise have
taking implications under E.O. 12630.
Section 2(a) of E.O. 12630 identifies
policies that do not have takings
implications, such as those that abolish
regulations, discontinue governmental
programs, or modify regulations in a
manner that lessens interference with
the use of private property. The rule
would not interfere with private
property. A takings implication
assessment is not required.
Some comments noted that access
across federal, state, or county managed
lands should not entail encumbrances
or restrictions on private property. This
final rule does not restrict access across
any lands. Through separate
environmental review, such as through
land use planning, the BLM may
consider actions that affect access.
Tribal, Federal, State, and local
government offices, as well as
communities and private citizens will
have opportunity to engage in those
environmental processes.
Federalism (E.O. 13132)
Under the criteria in Section 1 of E.O.
13132, this rule does not have sufficient
federalism implications to warrant the
preparation of a federalism summary
impact statement. It does not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. A federalism
summary impact statement is not
required.

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Civil Justice Reform (E.O. 12988)
This rule complies with the
requirements of E.O. 12988.
Specifically, this rule:
a. Meets the criteria of Section 3(a)
requiring that all regulations be
reviewed to eliminate errors and
ambiguity and be written to minimize
litigation; and
b. Meets the criteria of Section 3(b)(2)
requiring that all regulations be written

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in clear language and contain clear legal
standards.
Consultation and Coordination With
Indian Tribes (E.O. 13175 and
Departmental Policy)
DOI strives to maintain and
strengthen its government-togovernment relationship with Indian
Tribes through a commitment to
consultation with Indian Tribes and
recognition of their right to selfgovernance and Tribal sovereignty. We
have evaluated this rule under the DOI’s
consultation policy and under the
criteria in E.O. 13175 and have
determined that it has no substantial
direct effects on federally recognized
Indian Tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian Tribes,
and that consultation under the DOI’s
Tribal consultation policy is not
required. However, consistent with the
DOI’s consultation policy (52
Departmental Manual 4) and the criteria
in E.O. 13175, the BLM will consult
with federally recognized Indian Tribes
on any renewable energy project
proposals that may have a substantial
direct effect on the Tribes.
Paperwork Reduction Act
The Paperwork Reduction Act (PRA)
(44 U.S.C. 3501–3521) generally
provides that an agency may not
conduct or sponsor and, not
withstanding any other provision of
law, 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 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)).
This rule contains informationcollection requirements that are subject
to review by OMB under the PRA. OMB
has generally approved the existing
information-collection requirements
contained in 43 CFR part 2800
associated with wind and solar rightsof-way grants or leases under OMB
control number 1004–0206 (expiration
date: June 30, 2026). Additionally, the
BLM’s regulations at 43 CFR part 2800
require the use of Standard Form 299
(SF–299), ‘‘Application for
Transportation and Utility Systems and
Facilities on Federal Lands,’’ for rightof-way applications and the regulations
at 43 CFR part 2800. OMB has approved
the requirements associated with SF–

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299 and has assigned control number
0596–0249.
This rule does not include any
changes to the information-collection
requirements currently contained in 43
CFR parts 2800 and 2880 and approved
by OMB as noted above. There is a new
information-collection requirement
contained in 43 CFR 2806.52(b)(5)
regarding an annual certified statement.
The rule would require that by October
of each year wind and solar grant or
leaseholders must submit to the BLM a
certified statement identifying the first
year’s estimated energy generation on
public lands and the prior year’s actual
energy generation on public lands. The
BLM will determine the capacity fee
based on the certified statement
provided. To prepare the annual
certified statement, grant or leaseholders
will need to compile information based
on capacity fee as instructed in 43 CFR
2806.
The information-collection
requirements contained in 43 CFR 2800
and 2880 and approved under OMB
Control Number 1004–0206 and the
aforementioned new informationcollection pertaining to 43 CFR
2806.52(b)(5) are described below.
Activities That Require SF–299
The following discussion describes
the information-collection activities in
this control number that require use of
SF–299.
Application for a Solar or Wind Energy
Development Project Outside Any
Designated Leasing Area (43 CFR
2804.12, 2804.25(c), 2804.26(a)(5), and
2804.30(g)); and Application for an
Electric Transmission Line With a
Capacity of 100 kV or More (43 CFR
2804.12, 2804.25(c), and 2804.26(a)(5))
Section 2804.12(b) applies to solar
and wind energy development grants
outside any DLA and electric
transmission lines with a capacity of
100 kV or more.
Section 2804.12(b) includes the
following requirements for applications
for a solar or wind energy development
project outside a DLA and for
applications for a transmission line
project with a capacity of 100 kV or
more:
• A discussion of all known potential
resource conflicts with sensitive
resources and values, including special
designations or protections; and
• Applicant-proposed measures to
avoid, minimize, and compensate for
such resource conflicts, if any.
Section 2804.12(b) also requires
applicants to initiate early discussions
with any grazing permittees that may be
affected by the proposed project. This

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requirement stems from FLPMA Section
402(g) (43 U.S.C. 1752(g)) and a BLM
grazing regulation (section 4110.4–2(b))
that require 2 years’ prior notice to
grazing permittees and lessees before
cancellation of their grazing privileges.
In addition to the information listed at
§ 2804.12(b), an application for a solar
or wind project, or for a transmission
line of at least 100 kV, must include the
information listed at §§ 2804.12(a)(1)
through (a)(7).
Section 2804.25 provides that the
BLM will notify an applicant upon
receipt of an application and may
require the applicant to submit
additional information necessary to
process the application (such as a Plan
of Development or cultural resource
surveys). As amended, § 2084.25(c)
provides that, for solar or wind energy
development projects and transmission
lines with a capacity of 100 kV or more,
the applicant must commence any
required resource surveys or inventories
within 1 year of the request date, unless
otherwise specified by the BLM. The
amended regulation also authorizes an
applicant to submit a request for an
alternative requirement by showing
good cause under § 2804.40.
Applications for solar or wind energy
development outside any DLA, but not
applications for large-scale transmission
lines, are subject to a requirement (at
§ 2804.12(c)(2)) to submit an
‘‘application filing fee’’ of $15 per acre.
As defined in an amendment to
§ 2801.5, an application filing fee is
specific to solar and wind energy rightof-way applications. Section
2804.30(e)(4) provides that the BLM will
refund the fee, except for the reasonable
costs incurred on behalf of the
applicant, if the applicant is not a
successful bidder in the competitive
process outlined in subpart 2804.
Section 2804.26(a)(5) provides the
authority that allows the BLM to deny
an application for a right-of-way grant if
the applicant does not have or cannot
demonstrate the technical or financial
capability to construct the project or
operate facilities within the right-ofway. Amendments to that provision list
the following ways an applicant may
demonstrate their financial and
technical capability to construct,
operate, maintain, and terminate a
project:
• Documenting any previous
successful experience in construction,
operation, and maintenance of similar
facilities on either public or non-public
lands;
• Providing information on the
availability of sufficient capitalization to
carry out development, including the
preliminary study stage of the project

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and the environmental review and
clearance process; or
• 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.
General Description of a Proposed
Project and Schedule for Submittal of a
Plan of Development (43 CFR
2804.12(b)(1) and (b)(2))
Sections 2804.12(b)(1) and (b)(2)
require applicants for a solar or wind
development project outside a DLA to
submit the following information, using
Form SF–299:
• A general description of the
proposed project and a schedule for the
submission of a Plan of Development
(POD) conforming to the POD template
at http://www.blm.gov;
• A discussion of all known potential
resource conflicts with sensitive
resources and values, including special
designations or protections; and
• Proposals to avoid, minimize, and
compensate for such resource conflicts,
if any.
Application for an Energy Site-Specific
Testing Grant (43 CFR 2804.12(a), and
2804.30(g)); Application for an Energy
Project-Area Testing Grant (43 CFR
2804.12(a), and 2804.30(g)); and
Application for a Short-Term Grant (43
CFR 2804.12(a))
Section 2804.12(a) addresses the
general requirements of an application
for a FLPMA right-of-way grant. Section
2804.30(g) authorizes only one
applicant (i.e., a ‘‘preferred applicant’’)
to apply for an energy project-area
testing grant or an energy site-specific
testing grant for land outside any DLA.
Each of these grants is for 3 years or
less, in accordance with § 2805.11(c)(2).
All of these applications must be
submitted on SF–299. Applications for
project-area grants (but not site-specific
grants) are subject to a $2 per-acre
application filing fee in accordance with
§ 2804.12(c)(2). Applicants for shortterm grants for other purposes (such as
geotechnical testing and temporary
land-disturbing activities) are subject to
a processing fee in accordance with
§ 2804.1.
Request To Assign a Solar or Wind
Energy Development Right-of-Way (43
CFR 2807.21)
Section 2807.21, as amended,
provides for assignment, in whole or in

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35673

part, of any right or interest in a grant
or lease for a solar or wind development
right-of-way. Actions that may require
an assignment include the transfer by
the holder (assignor) of any right or
interest in the grant or lease to a third
party (assignee) or any change in control
transaction involving the grant holder or
leaseholder, including corporate
mergers or acquisitions. The proposed
assignee must file an assignment
application, using SF–299, and pay
application and processing fees.
The assignment application must
include:
• Documentation that the assignor
agrees to the assignment; and
• A signed statement that the
proposed assignee agrees to comply
with and be bound by the terms and
conditions of the grant that is being
assigned and all applicable laws and
regulations.
Environmental, Technical, and
Financial Records, Reports, and Other
Information (43 CFR 2805.12(a)(15))
Section 2805.12(a)(15) authorizes 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 use of SF–
299 is required. The BLM will use the
information for monitoring and
inspection activities.
Application for Renewal of a Solar or
Wind Energy Development Grant or
Lease (43 CFR 2805.14(g) and 2807.22)
Section 2805.14(g) provides that a
holder of a right-of-way grant, which
includes solar or wind energy
generating facilities, may apply for
renewal in accordance with § 2807.22.
Section 2807.22(c) provides that an
application to renew a grant must
include the same information, on SF–
299, that is necessary for a new
application. It also provides that
processing fees, in accordance with
§ 2804.14, as amended, apply to these
renewal applications. Sections
2807.22(a) and (b) provide that an
application for renewal of any right-ofway grant or lease, including a solar or
wind energy development grant or lease,
must be submitted at least 120 calendar
days before the grant or lease expires.
The application must show that the
grantee or lessee is complying with the
renewal terms and conditions (if any),
with the other terms, conditions, and
stipulations of the grant or lease, and
with other applicable laws and
regulations. The application also must
explain why a renewal of the grant or
lease is necessary.

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Request for Amendment, Assignment, or
Other Change (FLPMA) (43 CFR
2807.11(b) and (d) and 2807.21)
Section 2807.11(b) requires a holder
of any type of right-of-way grant to
contact the BLM to seek an amendment
to the grant under § 2807.20 and obtain
the BLM’s approval before beginning
any activity that is a ‘‘substantial
deviation’’ from what is authorized.
Section 2807.11(d) requires contacting
the BLM to request an amendment to
the pertinent right-of-way grant or lease
and prior approval whenever sitespecific circumstances or conditions
result in the need for changes to an
approved right-of-way grant or lease,
Plan of Development, site plan,
mitigation measures, or construction,
operation, or termination procedures
that are not ‘‘substantial deviations.’’
Section 2807.21 authorizes
assignment of a grant or lease with the
BLM’s approval. It also authorizes the
BLM to require a grant or leaseholder to
file new or revised information in
circumstances that include, but are not
limited to:
• Transactions within the same
corporate family;
• Changes in the holder’s name only;
and
• Changes in the holder’s articles of
incorporation.
A request for an amendment of a
right-of-way, using SF–299, is required
in cases of a substantial deviation (for
example, a change in the boundaries of
the right-of-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, must 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
will 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 is 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

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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 will use
the information to monitor and inspect
rights-of-way, and to maintain current
data.
Activities That Do Not Require Any
Form
Preliminary Application Review
Meetings for a Large-Scale Right-of-Way
(43 CFR 2804.12(b)(4))
‘‘Preliminary application review
meetings’’ are required after submission
of an application for a large-scale rightof-way. A large-scale right-of-way is for
solar or wind energy development
outside a DLA, or for a transmission line
with a capacity of 100 kV or more.
Within 6 months from the date that
the BLM receives the cost recovery fee
for an application for a large-scale
project, the applicant must schedule
and hold at least two preliminary
application review meetings.
In the first meeting, the BLM will
collect information from the applicant
to supplement the application on
subjects such as the general project
proposal. The BLM will also discuss
with the applicant subjects such as the
status of the BLM’s 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.
In the second meeting, the applicant
and the BLM will meet with appropriate
Federal and State agencies and Tribal
and local governments to facilitate
coordination of potential environmental
and siting issues and concerns.
The applicant and the BLM may agree
to hold additional preliminary
application review meetings.
Application for Renewal of an Energy
Project-Area Testing Grant or Other
Short-Term Grant (43 CFR
2805.11(c)(2)(ii), 2805.14(h), and
2807.22)
Section 2805.11(c)(2)(ii) provides that
holders of energy project-area testing
grants may seek renewal of those grants.
The initial term for such a grant is 3
years or less, with the option to renew
for one additional 3-year period.
For other short-term grants, such as
for geotechnical testing and temporary
land-disturbing activities, the initial
term is 3 years or less. Short-term grants
include an option for renewal.
Section 2805.14(h) provides that
applications to renew an energy projectarea testing grant must include an

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energy development application
submitted in accordance with
§ 2801.9(d)(2). Cost recovery fees in
accordance with § 2804.14, as amended,
apply to these renewal applications.
Section 2807.22 provides that an
application for renewal of any right-ofway grant or lease, including an energy
project-area testing grant or a short-term
grant, must be submitted at least 120
calendar days before the grant or lease
expires. The application must show that
the grantee or lessee is complying with
the renewal terms and conditions (if
any), with the other terms, conditions,
and stipulations of the grant or lease,
and with other applicable laws and
regulations. The application also must
explain why a renewal of the grant or
lease is necessary.
Showing of Good Cause (43 CFR
2804.40 and 2805.12)
Under § 2804.40, an applicant for a
FLPMA right-of-way grant who is
unable to meet any of the requirements
in subpart 2804 may request approval
for an alternative requirement from the
BLM. Any such request is not approved
until the applicant receives BLM
approval in writing. This type of request
to the BLM must:
(a) Show good cause for the
applicant’s inability to meet a
requirement;
(b) Suggest an alternative requirement
and explain why that requirement is
appropriate; and
(c) Be received in writing by the BLM
in a timely manner, before the deadline
to meet a particular requirement has
passed.
The BLM will use the information to
determine whether to apply an
alternative requirement.
Other showings of good cause are
authorized or may be required by
§ 2805.12, which requires due diligence
in development and operations of any
right-of-way grant or lease. In
accordance with § 2805.12(c)(6) and
(c)(8), the BLM will notify the holder
before suspending or terminating a
right-of-way for lack of due diligence.
This notice will 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 will be required in response. That
showing must include:
• Reasonable justification for any
delays in construction or reductions in
energy generation (for example, delays
in equipment delivery, legal challenges,
and acts of God);
• The anticipated date for the
completion of construction or
resumption of energy generation; and

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evidence of progress toward the start or
resumption of construction; and
• A request for extension of the
timelines in the approved POD or
extension of the period in which the
holder must satisfy the minimum energy
threshold.
Section 2805.12(e), as amended,
applies as soon as a right-of-way holder
anticipates noncompliance with
stipulation, term, or condition of the
approved right-of-way grant or lease, or
in the event of noncompliance with any
such stipulation, term, or condition. In
these circumstances, the holder must
notify the BLM in writing and show
good cause for the noncompliance,
including an explanation of the reasons
for the noncompliance.
In addition, the holder may request
that the BLM consider alternative
stipulations, terms, or conditions. Any
request for an alternative stipulation,
term, or condition must comply with
applicable law in order to be
considered. Any proposed alternative to
applicable bonding requirements must
provide the United States with adequate
financial assurance for potential
liabilities associated with the right-ofway grant or lease. Any such request is
not approved until the holder receives
the BLM’s approval in writing.
Bonding Requirements (43 CFR 2805.20)
Section 2805.20 provides that the
bond amount for projects other than a
solar or wind energy lease under
subpart 2809 (i.e., inside a DLA) will be
determined based on the preparation of
a reclamation cost estimate that
includes the cost to the BLM to
administer a reclamation contract and
review it periodically for adequacy.
Section 2805.20(a)(5) provides that
the reclamation cost estimate must
include at a minimum:
• Remediation of 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;
• The decommissioning, removal,
and proper disposal, as appropriate, of
any improvements and facilities; and
• Interim and final reclamation, revegetation, recontouring, and soil
stabilization.
Sections 2805.20(b) and 2805.20(c)
identify specific bond requirements for
solar and wind energy development
respectively outside of DLAs. A holder
of a solar or wind energy grant outside
of a DLA will be required to submit a
reclamation cost estimate to help the
BLM determine the bond amount. For
solar energy development grants outside
of DLAs, the bond amount will be no

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less than $10,000 per acre. For wind
energy development grants outside of
DLAs, the bond amount will be no less
than $10,000 per authorized turbine
with a nameplate generating capacity of
less than one Megawatt (MW), and no
less than $20,000 per authorized turbine
with a nameplate generating capacity of
one MW or greater.
Section 2805.20(d) separates site- and
project-area testing authorization bond
requirements from § 2805.20(c).
Meteorological and other
instrumentation facilities are required to
be bonded at no less than $2,000 per
location. These bond amounts are the
same as standard bond amounts for
leases required under § 2809.18(e)(3).
Annual Certified Statement (43 CFR
2806.52(b)(5))—New Information
Collection
The rule requires that by October of
each year, wind and solar grant or
leaseholders must submit to the BLM a
certified statement identifying the first
year’s estimated energy generation on
public lands and the prior year’s actual
energy generation on public lands. The
BLM will determine the capacity fee
based on the certified statement
provided. To prepare the annual
certified statement, grant or leaseholders
will need to compile information based
on the capacity fee as instructed in
subpart 2806. This is the only new
information-collection requirement
contained in this rule.
Nomination of a Parcel of Land Inside
a Designated Leasing Area (43 CFR
2809.11)
Sections 2809.10 and 2809.11
authorize the BLM, on its own initiative,
to offer land through a competitive
process for solar or wind energy
development. These regulations also
authorize the BLM to solicit
nominations for such development by
publishing a notice in the Federal
Register. To nominate a parcel under
this process, the nominator must be
qualified to hold a right-of-way under
43 CFR 2803.10. After publication of a
notice by the BLM, anyone meeting the
qualifications may submit a nomination
for a specific parcel of land to be
developed for solar or wind energy.
There is a fee of $5 per acre for each
nomination. The following information
is required:
• The nominator’s name and personal
or business address;
• The legal land description; and
• A map of the nominated lands.
The BLM will use the information to
communicate with the nominator and to
determine whether to proceed with a
competitive process.

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Plan of Development for a Solar or Wind
Energy Development Lease Inside a
Designated Leasing Area (43 CFR
2809.18)
Section 2809.l8(c) requires the holder
of a lease for solar or wind energy
development to submit a Plan of
Development (POD) within 2 years of
the lease issuance date. The POD must
be consistent with the development
schedule and other requirements in the
POD template posted at http://
www.blm.gov; and must address all predevelopment and development
activities.
Section 2809.18(d) requires the holder
of a solar or wind energy development
lease for land inside a DLA to pay
reasonable costs for the BLM or other
Federal agencies to review and approve
the POD and monitor the lease. To
expedite review and monitoring, the
holder may notify the BLM in writing of
an intention to pay the full actual costs
incurred by the BLM.
Request for Amendment, Assignment, or
Other Change (MLA) (43 CFR 2886.12(b)
and (d) and 43 CFR 2887.11)
Sections 2886.12 and 2887.11 pertain
to holders of rights-of-way and
temporary use permits authorized under
the MLA. A temporary use permit
authorizes a holder of a 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 § 2881.12. The regulations
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;
• Before any change in control
transaction involving the grant- or leaseholder; 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 is
required in cases of a substantial
deviation (e.g., a change in the
boundaries of the right-of-way, major
improvements not previously approved
by the BLM, or a change in the use of
the right-of-way). Other changes, such

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as changes in project materials, or
changes in mitigation measures within
the existing, approved right-of-way area
are 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 will
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 is 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 will use
the information gathered for monitoring
and inspection purposes, and to
maintain current data on rights-of-way.
Certification of Construction (43 CFR
2886.12(f))
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.
The information-collection request for
this rule has been submitted to OMB for
review under 44 U.S.C. 3507(d). You
may view the information-collection
request(s) at http://www.reginfo.gov/
public/do/PRAMain.
As part of our continuing effort to
reduce paperwork and respondent
burdens, we invite the public and other
Federal agencies to comment on any
aspect of this information-collection,
including:
• 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;

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• The quality, utility, and clarity of
the information to be collected; and
• How to minimize the informationcollection burden on those who are to
respond, including the use of
appropriate automated, electronic,
mechanical, or other forms of
information technology.
Currently, the information-collection
requirements contained in 43 CFR parts
2800 and 2880 and approved under
OMB control number 1004–0206 are
estimated as follows: 3,042 annual
responses; 47,112, annual burden hours;
and $2,182,302 annual cost burden. We
are projecting a burden increase of 75
new annual responses and 150 new
annual burden hours as result of this
rule. This burden hour increase would
result from a new information collection
requirement contained in
§ 2806.52(b)(5) pertaining to the annual
certified statement. This new
information collection is needed to help
the BLM more accurately determine the
capacity fee based on the certified
statement provided.
The final rule also removes an
existing information collection
previously contained in 43 CFR
2809.11(c) titled, Expression of Interest
in a Parcel of Land Inside a Designated
Leasing Area. The removal of this
information collection results in the
reduction of 1 annual response and 4
annual burden hours.
Therefore, we estimate that the final
rule will result in a net increase of 74
annual responses and 226 annual
burden hours.
We are also adjusting the burden for
two existing and unchanged information
collections to reflect more accurately the
burden those activities would involve
the industry. These adjustments include
the following:
• Preliminary Application Review
Meetings for 2 public meetings for a
Large-Scale Right-of-Way (43 CFR
2804.12(b)(4)). The average response
time is adjusted from 2 hours to 4 hours.
This adjustment resulted in a 40-hour
burden increase (from 40 hours to 80
hours).
• Environmental, Technical, and
Financial Records, Reports, and Other
Information (43 CFR 2805.12(a)(15)).
We have added a 50 percent increase in
the hours required to prepare reports
(from 4 per response to 6 per response).
This resulted in an increasing the
estimated annual burden hours for these
activities from 80 hours to 120 hours.
There are no projected changes to the
non-hour cost burdens as a result of this
rule. The resulting new estimated total
burdens for OMB Control Number
1004–0206 are provided below.

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Title of Collection: Competitive
Processes, Terms, and Conditions for
Leasing Public Lands for Solar and
Wind Energy Development (43 CFR
parts 2800 and 2880).
OMB Control Number: 1004–0206.
Form Number: SF–299 (Burden
approved by OMB in Request for
Common Form under OMB Control
Number 0596–0249).
Type of Review: Revision of a
currently approved collection of
information.
Respondents/Affected Public: Private
sector (applicants for and holders of
wind and solar rights-of-way grants or
leases on Federal public lands.
Respondent’s Obligation: Required to
obtain or retain a benefit.
Frequency of Collection: On occasion
and annually for the Annual Certified
Statement in 43 CFR 2806.52(i).
Number of Respondents: 75.
Annual Responses: 3,116.
Annual Burden Hours: 47,338.
Annual Burden Cost: $2,182,302.
If you want to comment on the
information-collection requirements this
in this rule, please send your comments
and suggestions on this informationcollection request within 30 days of
publication of this final rule in the
Federal Register to OMB at
www.reginfo.gov. Click on the link,
‘‘Currently under Review—Open for
Public Comments.’’
National Environmental Policy Act
These proposed regulatory
amendments are of an administrative or
procedural nature and thus are eligible
to be categorically excluded from the
requirement to prepare an EA or an 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.
Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use (Executive Order
13211)
Federal agencies are 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, and (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.
The BLM reviewed the rule and
determined that it is not likely a
significant energy action as defined by
E.O. 13211. While the rights-of-way
affected by this rule are for solar and

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wind energy generation, the rule is
limited in scope and would not likely
have a significant, adverse effect on the
supply, distribution, or use of energy
from these sources. The rule would not
result in a shortfall in supply, price
increases, or increase the use of foreign
supplies.
Authors
The principal authors of this rule are:
Jayme M. Lopez, BLM National Renewable
Energy Coordination Office; Jeremy Bluma,
BLM National Renewable Energy
Coordination Office; Radford Schantz,
Division of Lands, Realty and Cadastral
Survey; Patrick Lee, DOI, Office of Policy
Analysis; Jeff Holdren, BLM Division of
Lands, Realty and Cadastral Survey; Darrin
King, BLM Division of Regulatory Affairs;
Jennifer Noe, BLM Division of Regulatory
Affairs, assisted by the DOI Office of the
Solicitor. This action by the Principal Deputy
Assistant Secretary is taken pursuant to an
existing delegation of authority.
Steven H. Feldgus, Ph.D.,
Principal Deputy Assistant Secretary, Land
and Minerals Management.

List of Subjects in 43 CFR Part 2800
Electric power, Highways and roads,
Penalties, Public lands and rights-ofway, Reporting and recordkeeping
requirements.
Accordingly, for the reasons stated in
the preamble, the BLM amends 43 CFR
part 2800 as set forth below:
PART 2800—RIGHTS–OF–WAY UNDER
THE FEDERAL LAND POLICY AND
MANAGEMENT ACT
1. The authority citation for part 2800
is revised to read as follows:

■

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

Subpart 2801—General information
2. Amend § 2801.5:
a. In paragraph (a) by adding the
acronym for ‘‘FLPMA’’ in alphabetical
order;
■ b. In paragraph (b) by:
■ i. Removing the term ‘‘Act’’;
■ ii. Adding in alphabetical order the
terms ‘‘Domestic Content’’ and
‘‘Capacity fee’’;
■ iii. Revising the term for ‘‘Grant’’;
■ iv. Removing the term ‘‘Megawatt
(mw) capacity fee’’;
■ v. Revising the terms ‘‘Megawatt hour
(MWh) rate’’ and ‘‘Reasonable costs’’;
and
■ vi. Adding in alphabetical order the
terms ‘‘Renewable energy coordination
office (RECO)’’, ‘‘Solar or wind energy
development’’, and ‘‘Solar or wind
energy lease’’.
The additions and revisions to read as
follows:

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■
■

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§ 2801.5 What acronyms and terms are
used in the regulations in this part?

(a) * * *
FLPMA means the Federal Land
Policy and Management Act of 1976, as
amended (43 U.S.C. 1701 et seq.).
*
*
*
*
*
(b) * * *
Domestic Content reduction means an
item or product that qualifies for the
domestic content preference under the
Build America, Buy America Act, Public
Law 117–58, 135 Stat. 429, §§ 70901
through 70927 (Nov. 15, 2021), and the
implementing guidance at 2 CFR part
184.
Capacity fee is the fee charged to
right-of-way holders once energy
production commences that is based on
the production of energy on public
lands from solar and wind energy
generating facilities.
*
*
*
*
*
Grant means an authorization or
instrument (e.g., easement, license, or
permit) the BLM issues under Title V of
the Federal Land Policy and
Management Act, 43 U.S.C. 1761 et seq.,
and any authorization or instrument the
BLM and its predecessors issued for like
purposes before October 21, 1976, under
then existing statutory authority, except
for solar or wind energy leases. It does
not include authorizations issued under
the Mineral Leasing Act (30 U.S.C. 185).
*
*
*
*
*
Megawatt hour (MWh) rate means the
5 calendar-year average of the annual
average wholesale electricity prices per
MWh for the major trading hubs serving
the 11 western States of the continental
United States.
*
*
*
*
*
Reasonable costs has the meaning
found in Section 304(b) of FLPMA.
*
*
*
*
*
Renewable energy coordination office
(RECO) means one of the National,
State, district, or field offices
established by the Secretary under 43
U.S.C. 3002(a) that is responsible for
implementing a program for improving
Federal permit coordination with
respect to solar, wind, and geothermal
projects on BLM-administered land, and
such other activities as the Secretary
determines necessary.
*
*
*
*
*
Solar or wind energy development
means the use of public lands to
generate electricity from solar or wind
energy resources. It includes the
construction, operation, maintenance,
and decommissioning of any such
facilities, as well as the subsequent
reclamation of the site.
Solar or wind energy lease means any
right-of-way issued for solar or wind

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energy development in an area
classified or allocated for solar or wind
energy (i.e., a designated leasing area) in
a resource management plan.
*
*
*
*
*
■ 3. Amend § 2801.6 by revising
paragraph (a)(1) to read as follows:
§ 2801.6

Scope.

(a) * * *
(1) Grants or leases for necessary
transportation or other systems and
facilities that are in the public interest
and require the use of public lands for
the purposes identified in 43 U.S.C.
1761, and administering, amending,
assigning, monitoring, renewing, and
terminating them;
*
*
*
*
*
■ 4. Amend § 2801.9 by revising
paragraphs (d) introductory text, (d)(3)
and (4), and adding paragraph (d)(6) to
read as follows:
§ 2801.9

When do I need a grant?

*

*
*
*
*
(d) All systems, facilities, and related
activities for energy generation, storage,
or transmission projects are specifically
authorized as follows:
*
*
*
*
*
(3) Energy generation facilities,
including solar and wind energy
development facilities, are authorized
with a right-of-way grant or lease that
may be issued for up to 50 years (plus
initial partial year of issuance);
(4) Energy storage facilities, which are
separate from energy generation
facilities, are authorized with a right-ofway grant that may be issued for up to
50 years;
*
*
*
*
*
(6) Electric transmission lines with a
capacity of 100 kV or more are
authorized with a right-of-way grant that
may be issued for up to 50 years.
■ 5. Revise the heading for subpart 2802
to read as follows:
Subpart 2802—Lands Available for
FLPMA Grants or Leases
6. Amend § 2802.11 by revising
paragraphs (b) introductory text and
(b)(1) and adding paragraphs (b)(10) and
(11) to read as follows:

■

§ 2802.11 How does the BLM designate
right-of-way corridors and designated
leasing areas?

*

*
*
*
*
(b) When determining which public
lands may be suitable for right-of-way
corridors or designated leasing areas,
the BLM may consider various factors,
including:

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(1) Federal, State, Tribal, and local
land use plans, and applicable Federal,
State, Tribal, and local laws;
*
*
*
*
*
(10) Access to electric transmission;
and
(11) Whether there are areas for solar
and wind energy development with low
potential for conflict with resources or
uses due to environmental, cultural, and
other relevant criteria, which the BLM
will identify by:
(i) Assessing the demand for new or
expanded areas;
(ii) Applying environmental, cultural,
and other screening criteria; and
(iii) Analyzing proposed areas
through the land use planning process
described in part 1600 of this chapter.
*
*
*
*
*
■ 7. Amend § 2803.10 by revising
paragraph (c) to read as follows:
§ 2803.10

Who may hold a grant or lease?

*

*
*
*
*
(c) Of legal age and authorized to do
business in the State or States where the
right-of-way you seek is located.
■ 8. Revise § 2803.12 to read as follows:
§ 2803.12 What happens to my grant or
lease if I die?

(a) If a grant holder dies, any
inheritable interest in a grant or lease
will be distributed under State law.
(b) If the receiver of a grant or lease
is not qualified to hold a grant or lease
under § 2803.10 of this subpart, the
BLM will recognize the receiver as grant
or leaseholder for up to two years,
subject to full compliance with all
terms, conditions, and stipulations.
During that period, the receiver must
either become qualified or divest itself
of the interest.
Subpart 2804—Applying for FLPMA
Grants
9. Amend § 2804.12 by revising
paragraphs (c) and (f) and adding
paragraph (j) to read as follows:

■

§ 2804.12 What must I do when submitting
my application?

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*

*
*
*
*
(c) You must meet additional
requirements when applying for a solar
or wind energy development or shortterm right-of-way, as follows:
(1) Pay an application filing fee of $2
per acre for short-term right-of-way
applications or $15 per acre for solar or
wind energy development applications.
The BLM will apply the application
filing fee toward the processing fees
described in §§ 2804.14 through
2804.22. The BLM will refund the
balance of any application filing fee at

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the end of the BLM’s application review
process if the application filing fee
exceeds the amount of the processing
fee.
(2) Pay additional reasonable costs in
addition to payment of the application
filing fee when processing your
application, pursuant to § 2804.14. A
processing or monitoring Category 6
cost recovery fee may be reduced by the
application filing fee paid when
submitting an application.
*
*
*
*
*
(f) The BLM may require you to
submit additional information at any
time while processing your application.
The BLM will identify additional
information in a written deficiency
notice asking you to provide the
information within a specified time
pursuant to § 2804.25(c).
*
*
*
*
*
(j) Your application will not be
complete until you have met or
addressed the requirements of this
section to the satisfaction of the BLM.
The BLM will notify you in writing
when your application is complete.
■ 10. Revise § 2804.22 to read as
follows:
§ 2804.22 How will the availability of funds
affect the timing of the BLM’s processing
your application?

(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.
■ 11. Revise § 2804.23 to read as
follows:
§ 2804.23 What costs am I responsible for
when the BLM decides to use a competitive
process for lands included in my
application?

If the BLM decides to use a
competitive process for lands included
in your application and your
application is in:
(a) 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.
(b) Processing Category 6. You are
responsible for processing costs
identified in your application. If the

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BLM cannot readily separate costs, such
as costs associated with preparing
environmental analyses, you and any
competing applicants must pay an equal
share, or a proportion agreed to in
writing among all applicants and the
BLM. If you agree to share the costs that
are common to your application and
that of a competing applicant, and the
competitor does not pay the agreed
upon amount, you are liable for the
entire amount due. You must pay the
entire processing fee in advance. The
BLM will not process your application
until we receive the advance payments.
■ 12. Amend § 2804.25 by revising
paragraphs (c), (e)(2), (e)(4), (e)(5), and
(f)(3) to read as follows:
§ 2804.25 How will the BLM process my
application?

*

*
*
*
*
(c) 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
failure to provide additional
information requested by the BLM
under this section may result in the
BLM denying your application pursuant
to § 2804.26.
(e) * * *
(2) If your application is for solar or
wind energy development;
(i) Hold a local public meeting if there
is no other public meeting or
opportunity for early engagement on the
project, such as those completed when
complying with the National
Environmental Policy Act (NEPA).
(ii) Prioritize the application in
accordance with § 2804.35; and
(iii) Evaluate the application based on
the information provided by the
applicant and input from other parties,
such as Federal, State, Tribal, and local
government agencies, as well as
comments received in preliminary
application review meetings held under
§ 2804.12(b)(4) and any public meeting
held under paragraph (e)(1) of this
section. Based on these evaluations, the
BLM will either deny your application
or continue processing it.
*
*
*
*
*
(4) Complete appropriate NEPA
compliance for the application, as
required by 43 CFR part 46 and 40 CFR
chapter V, subchapter A;

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(5) Determine whether your proposed
use complies with applicable Federal
laws;
*
*
*
*
*
(f) * * *
(3) The segregation period may not
exceed 2 years from the date of
publication in the Federal Register of
the notice initiating the segregation,
unless the state director determines and
documents in writing, prior to the
expiration of the segregation period, that
an extension is necessary for the orderly
administration of the public lands. If the
state director determines an extension is
necessary, the BLM will extend the
segregation for up to 2 years by
publishing a notice in the Federal
Register, prior to the expiration of the
initial segregation period. A segregation
will not be extended unless the
application is complete and cost
recovery has been received.
Segregations under this part may only
be extended once and the total
segregation period may not exceed 4
years.
■ 13. Amend § 2804.26 by revising the
section heading, paragraphs (a)(4) and
(9) and adding paragraph (a)(10), and
removing paragraph (c).
The revisions and additions read as
follows:
§ 2804.26 Under what circumstances may
the BLM deny my application?

(a) * * *
(4) Issuing the grant would be
inconsistent with FLPMA, other laws, or
these or other regulations;
*
*
*
*
*
(10) You fail to pay costs for
processing your application within 90
days of receiving the BLM’s request for
funds under § 2804.22(b).
*
*
*
*
*
§ 2804.30
■

[Removed and Reserved]

14. Remove and reserve § 2804.30.

§ 2804.31

[Removed and Reserved]

15. Remove and reserve § 2804.31.
■ 16. Revise § 2804.35 to read as
follows:
■

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§ 2804.35 Application prioritization for
solar and wind energy development rightsof-way.

(a) The BLM will prioritize the
processing of applications to ensure that
agency resources are allocated to
applications with the greatest potential
for approval and implementation. The
BLM’s prioritization of an application is
not a decision and is not subject to
appeal under 43 CFR part 4.
(b) The BLM will consider relevant
criteria when prioritizing applications,
including the following:

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(1) Whether the proposed project is
located within an area preferred for
solar or wind energy development, such
as designated leasing areas, which
include solar energy zones,
development focus areas, and renewable
energy development areas;
(2) Whether the proposed project is
likely to avoid adverse impacts to or
conflicts with known resources or uses
on or adjacent to public lands, and
includes specific measures designed to
further mitigate impacts or conflicts;
(3) Whether the proposed project is in
conformance with the governing BLM
land use plans;
(4) Whether the proposed project is
consistent with relevant State, Tribal,
and local government laws, plans, or
priorities;
(5) Whether the proposed project
incorporates the best management
practices set forth in the applicable BLM
land use plans and other BLM plans and
policies; and
(6) Any other circumstances or
prioritization criteria identified by the
BLM in subsequent policy guidance or
management direction through land use
planning.
(c) The BLM will prioritize your
complete application based on all
available information, including
information you provide to the BLM in
the application or in response to
deficiency notices, and information
provided to the BLM in public meetings
or consultations.
(d) The BLM may re-prioritize your
application at any time.
■ 17. Amend § 2804.40 by revising the
introductory text to read as follows:
§ 2804.40

Alternative requirements.

If you are unable to meet any of the
application requirements in this
subpart, you may request approval for
an alternative requirement from the
BLM. Any such request is not approved
until you receive BLM approval in
writing. Your request to the BLM must:
*
*
*
*
*
Subpart 2805—Terms and Conditions
of Grants
18. Amend § 2805.10 by revising
paragraph (c) to 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?

*

*
*
*
*
(c) If you agree with the terms and
conditions of the unsigned grant or
lease, you should sign and return it to
the BLM with any payment required

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35679

under § 2805.16. The BLM will issue the
right-of-way by signing the grant or
lease and transmitting it to you, if the
regulations in this part, including
§ 2804.26, remain satisfied.
*
*
*
*
*
■ 19. Amend § 2805.11 by revising the
section heading and paragraphs (c)(2)
introductory text and (c)(2)(iv) and (v)
and adding paragraph (b)(4) to read as
follows:
§ 2805.11
contain?

What does a grant or lease

*

*
*
*
*
(c) * * *
(2) Specific terms for energy grants
and leases, such as solar or wind energy
development projects, are as follows:
*
*
*
*
*
(iv) Energy generation facilities,
including solar or wind energy
development facilities, are authorized
with a grant or lease for up to 50 years
(plus initial partial year of issuance),
subject to the terms and conditions
including but not limited to
§ 2805.12(c); and
(v) Energy storage facilities which are
separate from energy generation
facilities are authorized with a right-ofway grant for up to 50 years, subject to
the terms and conditions including but
not limited to § 2805.12(c);
*
*
*
*
*
(4) Electric transmission lines with a
capacity of 100 kV or more are
authorized with a right-of-way grant for
up to 50 years.
*
*
*
*
*
■ 20. Amend § 2805.12 by adding
paragraph (c)(8) and by revising
paragraph (e)(2) to read as follows:
§ 2805.12 What terms and conditions must
I comply with?

*

*
*
*
*
(c) * * *
(8) Comply with the operational
standards in this section for solar or
wind energy development projects on
public lands. The holder of a grant or
lease for solar or wind energy
development is authorized to operate for
the purpose of generating energy.
Diligent operation requires the holder to
annually maintain at least 75 percent of
energy generation capacity for the
authorized development. Failure to
meet this required generation in
continuous two calendar year period
during the term of the grant or lease may
support suspension or termination of
the grant or lease under §§ 2807.17
through 2807.19. Before suspending or
terminating the authorization, the BLM
will send you a notice that gives you a
reasonable opportunity to correct any

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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 reductions in energy generation (for
example, delays in equipment delivery,
legal challenges, and Acts of God);
(ii) Provide the anticipated date in
which production of energy generation
will resume; and
(iii) Submit a written request under
paragraph (e) of this section for
extension of the period in which the
holder must satisfy the minimum energy
threshold. If you do not comply with the
requirements of paragraph (c)(8) of this
section, the BLM may deny your request
for an extension of the period for
complying with the minimum energy
generation threshold.
*
*
*
*
*
(e) * * *
(2) You may also request that the BLM
consider alternative stipulations, terms,
or conditions, other than rents or fees,
and except as provided in
§ 2806.52(b)(1)(i). Any proposed
alternative stipulation, term, or
condition must comply with applicable
law in order to be considered. Any
proposed alternative to applicable
bonding requirements must provide the
United States with adequate financial
assurance for potential liabilities
associated with your right-of-way grant
or lease. Any such request is not
approved until you receive BLM
approval in writing.
21. Revise § 2805.13 to read as
follows:

■

§ 2805.13 When is a grant or lease
effective?

A grant is effective after both you and
the BLM sign it. You must accept its
terms and conditions in writing and pay
any necessary rent and monitoring fees
as set forth in subpart 2806 of this part
and § 2805.16 of this subpart. Your
written acceptance constitutes an
agreement between you and the BLM
that your right to use the public lands,
as specified in the grant or lease, is
subject to the terms and conditions of
the grant or lease and applicable laws
and regulations.
22. Amend § 2805.14 by revising the
section heading and paragraph (g) to
read as follows:

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■

*
*
*
*
(g) Apply to renew your right-of-way
grant or lease under § 2807.22;
*
*
*
*
*

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23. Amend § 2806.10 by revising the
section heading and adding paragraph
(c) to read as follows:

■

§ 2806.10 What rent must I pay for my
grant or lease?

*

*
*
*
*
(c) You must pay rent for your grant
or lease using the per-acre rent schedule
for linear right-of-way grants (see
§ 2806.20) unless a separate rent
schedule is established for your use,
such as for communication sites per
§ 2806.30 or solar and wind energy
development per § 2806.50. The BLM
may also determine that these schedules
do not apply to your right-of-way
pursuant to § 2806.70.
■ 24. Amend § 2806.12 by revising
paragraphs (a)(1) introductory text,
(a)(2), and (b) to read as follows:

greater of the acreage rent or the
capacity fee that would be due in a
given year, and must be paid in advance
each year. The acreage rent will be
calculated consistent with § 2806.11 and
prorated consistent with § 2806.12(a).
The capacity fee will vary depending on
the project’s annual energy generation
on public lands and will be calculated
consistent with § 2806.52(b). Any
underpayment will be billed pursuant to
§ 2806.13 and any overpayment will be
credited pursuant to § 2806.16.
■ 27. Amend § 2806.51 by revising the
section heading and paragraph (c) to
read as follows:
§ 2806.51 Grant and lease rate
adjustments.

(a) * * *
(1) If your grant or lease is effective
on:
*
*
*
*
*
(2) If your grant or lease allows for
multiyear payments, such as a shortterm grant issued for energy site-specific
testing, you may request that your initial
rent bill be for the full term instead of
the initial rent bill periods provided
under paragraph (a)(1)(i) or (ii) of this
section.
(b) You must make all rent payments
for rights-of-way according to the
payment plan described in § 2806.24.
*
*
*
*
*
■ 25. Amend § 2806.20 by revising
paragraph (c) to read as follows:

*
*
*
*
(c) If you hold a right-of-way for solar
or wind energy development that is in
effect prior to July 1, 2024, you may
either request that the BLM apply the
annual rent and fee set forth in
§ 2806.52 or use the rate methodology
applicable to your authorization
immediately prior to this rule. If you
wish to use the annual rent and fee set
forth in § 2806.52, your request must be
received by the BLM before July 1, 2026.
The BLM will continue to apply the rate
in effect immediately prior to this rule
unless it receives your request to use the
rate adjustments in this part. A request
to change your rate methodology will
include your agreement to a re-issuance
of the grant or lease with updated Terms
and Conditions found under this part,
pursuant to § 2807.20(f).
■ 28. Amend § 2806.52 by revising the
section heading, the introductory text
and paragraphs (a), (b), and (c) to read
as follows:

§ 2806.20 What is the rent for a linear
right-of-way grant?

§ 2806.52 Annual rents and fees for solar
and wind energy development.

*

You must pay the greater of either an
annual acreage rent or a capacity fee.
The acreage rent and capacity fee are
determined as follows:
(a) Acreage rent. The BLM will
calculate the acreage rent for your grant
or lease by multiplying the number of
acres of the authorized area (rounded up
to the nearest tenth of an acre) by the
annual per-acre rate for the year in
which the payment is due.
(1) Per-acre rate. The annual per-acre
rate for your grant or lease is calculated
using the State per-acre value from the
solar or wind energy acreage rent
schedule, the encumbrance factor, the
year of the grant or lease term, and the
annual adjustment factor. The
calculation for determining the annual
per-acre rate is A × B × [(1 + C) ∧ D]
where:

§ 2806.12

When and where do I pay rent?

*
*
*
*
(c) You may obtain a copy of the
current Per Acre Rent Schedule from
any BLM state, district, or field office or
by writing the address found under
§ 2804.14(c) of this part. We also post
the current rent schedule at http://
www.blm.gov.
■ 26. Revise the undesignated center
heading that precedes § 2806.50 and
§ 2806.50 to read as follows:
Solar and Wind Energy Development
Rights-of-Way

§ 2805.14 What rights does a right-of-way
grant or lease convey?

*

Subpart 2806—Annual Rents and
Payments

§ 2806.50 Rents and fees for solar and
wind energy development.

If you hold a right-of-way for solar or
wind energy development, you must
pay an annual rent and fee in
accordance with this section and
subpart. The annual rent and fee is the

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(i) A is the state per-acre value from
the solar or wind energy acreage rent
schedule published by the BLM for the
year on which your right-of-way grant or
lease is issued and is based on the
National Agricultural Statistics Service
(NASS) Survey of Pastureland Rents.
The BLM will prepare the rent schedule
by averaging the NASS reported
pastureland rents for the most recent 5year period, using only those years for
which rent is reported by NASS. The
BLM will update the rent schedule
every 5 years consistent with the timing
of rent adjustments under § 2806.22.
(ii) B is the encumbrance factor,
which is 100 percent for solar energy
and 5 percent for wind energy;
(iii) C is the annual adjustment factor,
which is 3 percent; and,
(iv) D is the year of the grant or lease
term, which is the number of years the
grant or lease has been authorized. For
example, the first year (whether partial
or full year) would be 0 and the second
year would be 1.
(2) You may obtain a copy of the
current solar or wind energy acreage
rent schedule from any BLM state,
district, or field office or by writing the
address found under § 2804.14(c) of this
part, Attention: Renewable Energy
Coordination Office. The BLM also
posts the current solar energy acreage
rent schedule at http://www.blm.gov.
(b) Capacity fee. (1) The capacity fee
is calculated using the MWh rate or the
alternative MWh rate, the MWh rate
reduction, the domestic content
reduction, the Project Labor Agreement
(PLA) reduction, the rate of return, the
year of the grant or lease, the annual
adjustment factor, and the annual power
generated on the right-of-way. You must
pay the capacity fee annually, beginning
the year in which electricity generation
begins or is scheduled to begin in the
approved POD, whichever comes first,
unless the acreage rent (see paragraph
(a) of this section) exceeds the capacity
fee in a given year. The calculation for
determining the capacity fee is A × B ×
C × D × [(1 + E) ∧F] × G × H where:
(i) A is the MWh rate or the
alternative MWh rate. The MWh rate is
the annual weighted average wholesale
price per MWh for the major trading
hubs serving the 11 Western States of
the continental United States for the full
5 calendar-year period preceding the
year in which your grant or lease was
issued, rounded to the nearest dollar
increment (see paragraph (7)). An
Alternative MWh rate may be approved
by the BLM if you have entered into a
power purchase agreement, such as with
a utility, and that rate is lower than the
MWh rate. You must provide proof of
the lower rate to the BLM, and if the

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BLM determines the lower rate is
appropriate, the alternative MWh rate
will be used in place of the MWh rate.
(ii) B is the MWh rate reduction,
which is equal to 80 percent for fee
payments due before 2036. Starting
2036, the MWh rate reduction for new
authorizations transitions to 20 percent,
as follows:

TABLE 1 TO PARAGRAPH (b)(1)(ii)
Calendar year

MWh rate
reduction
(%)

2035 ..................
2036 ..................
2037 ..................
2038 and beyond ..............

B—
calculation
multiplier
(%)

80
60
40

20
40
60

20

80

(iii) C is the Domestic Content
reduction, which is equal to 1.0 for fee
payments when a holder’s project does
not qualify for the domestic content
reduction. C is equal to 0.8 when the
holder can demonstrate that a facility
qualifies for the domestic content
reduction. A facility qualifies for the
domestic content reduction if a holder
documents that the facility would
qualify as ‘‘Produced in the United
States’’, consistent with 2 CFR part 184.
(iv) D is the factor for the Project
Labor Agreement reduction, which is
equal to 1.0 for fee payments when the
holder does not execute a PLA. D is
equal to 0.8 if the holder executes a PLA
for the construction of the project.
(v) Request for conditional approval:
Alternative MWh rate, Domestic Content
reduction and PLA reduction. The
alternative MWh rate, the Domestic
Content reduction and PLA reduction
(paragraphs (b)(1)(ii) and (iii) and (iv) of
this section) may only be applied if a
request for conditional approval is
received by the BLM prior to the
issuance of a grant or lease. A request
for conditional approval must be
submitted with sufficient
documentation to demonstrate that the
development qualifies or may later
qualify for the rate reductions. A request
for conditional approval is subject to the
holder demonstrating, to the satisfaction
of the BLM’s Authorized Officer, that
the development qualifies. If energy
generation begins before the holder has
demonstrated that the facility qualifies,
the BLM will charge the holder the full
capacity fee, without the alternative
MWh rate, Domestic Content reduction,
or PLA reduction. The capacity fee may
be updated for subsequent calendar
years after the holder demonstrates that
the facility qualifies, but the BLM will
not refund past payments made before

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the alternative MWh rate, domestic
content reduction, or PLA reduction
went into effect.
(2) E is the annual adjustment factor,
which is 3 percent.
(3) F is the year of the grant or lease
term, which is the number of years the
grant or lease has been authorized. For
example, the first year (whether partial
or full year) would be 0 and the second
year would be 1.
(4) G is the rate of return, which is 7
percent.
(5) H is the annual energy generated
on the right-of-way and will be provided
to the BLM by the grant or leaseholder
in an annual certified statement. The
BLM will bill to coincide with the start
of the calendar year. The first-year
payment in advance will be based on
estimated energy generation and the
BLM will determine final payment for
the first year based on actual energy
generation. Subsequent payments in
advance will be based on the most
recent calendar year’s actual energy
generation reported on the certified
statement, unless exception is approved
in paragraph (vi) of this section.
(i) The holder must submit the annual
certified statement to the BLM before
the first year of energy generation begins
or is scheduled to begin as approved in
the Plan of Development, whichever
comes first. Certified annual statements
must be submitted to the BLM by
October, each year.
(ii) Prior to the start of energy
generation, the holder must submit to
the BLM in the certified statement the
estimated energy generation of the
development for the first year.
(iii) Once energy generation has
begun, the holder must submit to the
BLM in the certified statement the most
recent calendar year’s actual energy
generation of the development.
(iv) The BLM will calculate the
capacity fee from the certified
statement. For projects that include
generation on public and non-public
lands, the holder will prorate the total
energy generation by the percentage of
the right-of-way footprint on public
lands relative to the total development
area footprint.
(v) If the year’s actual energy
generation exceeds or is less than the
amount of energy generation used to bill
for the payment in advance, the holder
will be billed, credited, or refunded for
the underpayment or overpayments
pursuant to §§ 2806.13(e) and 2806.16.
In no event will the total payment be
less than the annual acreage rent.
(vi) The BLM may approve a request
made by a right-of-way holder to
provide a new estimate of energy
generation to the BLM in the annual

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certified statement to use for billing the
next year’s payment in advance if: the
right-of-way holder has planned
maintenance activities, or other
interruptions to energy generation, that
would reduce the amount of energy
generated by 25 percent or more; or, the
right-of-way holder is aware that the
energy generation in the subsequent
year will exceed the actual energy
generation for the previous year by 25
percent or more. See § 2805.12(c)(8)(i)
through (iii) for the steps to follow when
failing to meet diligent operation
requirements.
(vii) If the right-of-way holder
underestimates energy generation by 25
percent or more of the actual energy
generation or does not provide the BLM
with a new estimate when energy
production will exceed the previous
year’s actual production by more than
25 percent, the BLM may assess the
holder a late payment fee of 10 percent
of the actual generation for each year of
underestimation. This section applies
unless the BLM has approved a request
to provide a new estimate under
§ 2806.52(b)(5)(vi), and the approved
new estimate does not underestimate
energy generation by 25 percent or more
of actual energy generation or if the
holder can provide the BLM with
justification consistent with
§ 2805.12(e).
(6) MWh rate schedule. You may
obtain a copy of the current MWh rate
schedule from any BLM state, district,
or field office or by writing the address
found under § 2804.14(c) of this part,
Attention: Renewable Energy
Coordination Office. The BLM also
posts the current MWh rate schedule at
http://www.blm.gov.
(7) Periodic adjustments. (i) The MWh
rate applicable to your right-of-way will
be the MWh rate in effect the first year
for your grant or lease and will not be
updated with subsequent MWh rate
schedule adjustments. The MWh rate
applicable to your right-of-way will only
be updated each year by the annual
adjustment factor under paragraph (b)(2)
of this section.
(ii) The MWh rate schedule for new
grants and leases will be adjusted once
every 5 years consistent with the timing
of rent adjustments under § 2806.22 of
this part and consistent with paragraph
(b)(1) of this section.
(8) The general payment provisions
for rents described in this subpart,
except for § 2806.14(a)(4), also apply to
the capacity fee.
(c) Implementation of the acreage rent
and capacity fee. The rates for acreage
rent and capacity fees apply to all grants
and leases issued after the effective date
of this rule, and to existing grants and

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leases if the holder elects to continue
paying under the rate setting
methodology established at the time of
your authorization per § 2806.51(c).
*
*
*
*
*
■ 29. Add an undesignated center
heading between §§ 2806.52 and
2806.54 and revise § 2806.54 to read as
follows:
Renewable Energy Rights-of-Way
§ 2806.54 Rent for energy storage facilities
that are not part of a solar or wind energy
development facility.

Rent for energy storage facilities that
are not part of a solar or wind energy
development facility will be determined
pursuant to the linear rent formula set
forth in § 2806.23. The BLM may
determine your rent pursuant to
§ 2806.70 if we determine the linear rent
schedule does not apply.
§ § 2806.60 through 2806.68

[Removed]

30. Remove the undesignated center
heading ‘‘Wind Energy Rights-of-Way’’
and §§ 2806.60 through 2806.68.

■

Subpart 2807—Grant Administration
and Operation
31. Amend § 2807.17 by revising
paragraph (c) to read as follows:

■

§ 2807.17 Under what conditions may BLM
suspend or terminate my grant or lease?

*

*
*
*
*
(c) Your failure to use your right-ofway for its authorized purpose for any
continuous 5-year period creates a
presumption of abandonment, except
for solar and wind energy rights-of-way.
Consistent with § 2805.12(c)(8), a
presumption of abandonment or
insufficient productivity of a grant or
lease for a solar or wind energy
generation occurs for any continuous
two calendar-year period.
■ 32. Amend § 2807.20 by revising
paragraph (b) and adding paragraph (f)
to read as follows:
§ 2807.20 When must I amend my
application, seek an amendment of my
grant or lease, or obtain a new grant or
lease?

*

*
*
*
*
(b) The requirements to amend an
application or grant are the same as
those for a new application, including
paying processing and monitoring fees
and rent according to §§ 2804.14,
2805.16, and 2806.10, except for solar
and wind energy development grants
and leases per § 2806.51(c) requesting a
rent adjustment addressed under
paragraph (f) of this section.
*
*
*
*
*

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(f) A request to the BLM per
§ 2806.51(c) to adjust your solar or wind
energy rates must be received before
July 1, 2026. The BLM will re-issue your
grant or lease, without further review,
for the remainder of your existing term
consistent with the requirements of this
part, including processing and
monitoring costs under §§ 2804.14 and
2805.16, the terms and conditions under
§ 2805.12, and rent provision under
§ 2806.50.
■ 33. Amend § 2807.21 by revising
paragraph (e) to read as follows:
§ 2807.21 May I assign or make other
changes to my grant or lease?

*

*
*
*
*
(e) Your assignment is not recognized
until the BLM approves it in writing.
We will approve the assignment if doing
so is in the public interest. We may
modify the grant or lease or add bonding
and other requirements, including
additional terms and conditions, to the
grant or lease when approving the
assignment, except that we may only
modify solar or wind energy leases
where modification is warranted under
§ 2805.15(e). 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
or lease apply to the new grant or
leaseholder.
*
*
*
*
*
■ 34. Revise the heading of subpart 2809
to read as follows:
Subpart 2809—Competitive Process
for Solar and Wind Energy
Development Applications or Leases
35. Revise § 2809.10 to read as
follows:

■

§ 2809.10 Competitive process for energy
development grants and leases.

(a) The BLM may conduct a
competitive process for solar and wind
energy development grants or leases on
its own initiative; or
(b) The BLM may solicit nominations
for public lands to be included in a
competitive process by publishing a call
for nominations under § 2809.11(a); or
(c) You may request that the BLM
conduct a competitive process by
submitting a request in writing that
complies with § 2809.11(b); or
(d) The BLM may conduct a
competitive process if it receives two or
more competing applications.

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(e) Except where an applicant has
failed to timely provide information
requested by the BLM under
§ 2804.25(c), the BLM will not offer
lands in a competitive process for which
the BLM has accepted a complete
application, received a Plan of
Development, and entered into a cost
recovery agreement.
■ 36. Revise § 2809.11 to read as
follows:

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§ 2809.11 How will the BLM call for
nominations?

(a) Call for nominations. The BLM
may publish a call for nominations for
lands to be included in a competitive
process. The BLM will publish this
notice in the Federal Register and may
also use other notification methods,
such as a newspaper of general
circulation in the area affected, or the
internet. The Federal Register notice
and any other notices will include:
(1) The date, time, and location by
which nominations must be submitted;
(2) The date by which nominators will
be notified of the BLM’s decision on
timely submissions;
(3) The area or areas within which
nominations are being requested; and
(4) The qualification for a nominator,
which must include, at a minimum, the
requirements for an applicant, see
§ 2803.10.
(b) Nomination submission.
Nominations for lands to be included in
a competitive process must be in
writing, and include the following:
(1) A refundable nomination fee of $5
per acre;
(2) The 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 submissions will be sent to that name
and address, which constitutes the
nominator’s name and address of
record; and
(3) The legal land description and a
map of the nominated lands. The lands
nominated may be the entire area or part
of the area made available under the call
for nominations.
(c) The BLM will not accept your
submission if it does not comply with
the requirements of this section, or if
you are not qualified to hold a grant or
lease under § 2803.10.
(d) Withdrawing a nomination. A
nomination cannot be withdrawn,
except by the BLM for cause, in which
case the nomination fee will be
refunded.
(e) The BLM may decide whether to
conduct an offer for nominated lands.

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37. Revise § 2809.12 to read as
follows:

■

§ 2809.12 How will the BLM select and
prepare parcels?

(a) The BLM will identify parcels for
a competitive process based on
information received in public
nominations, land use designations, and
on any other information it deems
relevant.
(b) The BLM and other Federal
agencies, as applicable, may conduct
necessary studies and site evaluation
work, including applicable
environmental reviews and public
meetings, before offering lands in a
competitive process.
(c) The BLM’s choice to conduct a
competitive process is not a decision to
grant or deny a right-of-way application
and is not subject to appeal under 43
CFR part 4.
■ 38. Amend § 2809.13 by revising
paragraphs (b)(7) and (c) to read as
follows:
§ 2809.13 How will the BLM conduct
competitive processes?

*

*
*
*
*
(b) * * *
(7) The terms and conditions of the
process, including whether a successful
bidder will become a preferred
applicant or a presumptive leaseholder;
the requirements for the successful
bidder to submit an application, see
§ 2804.12, or a Plan of Development, see
§ 2809.18; and any mitigation
requirements, including compensatory
mitigation.
(c) We will notify you in writing of
our decision to conduct a competitive
process at least 30 days prior to the
competitive process if you nominated
lands that are included in the process,
paid the nomination fees, and
demonstrated your qualifications to
hold a grant or lease as required by
§ 2809.11.
■ 39. Amend § 2809.15 by:
■ a. Revising paragraph (a);
■ b. Removing paragraph (d);
■ c. Redesignating paragraphs (b) and
(c) as paragraphs (c) and (d),
respectively;
■ d. Adding a new paragraph (b); and
■ e. Revising newly redesignated
paragraphs (d)(1) through (4);
■ f. Adding paragraph (d)(5); and
■ f. Revising paragraph (e).
The revisions and addition read as
follows:
§ 2809.15 How will the BLM select the
successful bidder?

(a) The bidder with the highest total
bid, prior to any variable offset, is the
successful bidder, and may become the

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preferred applicant or the presumptive
leaseholder in accordance with
§ 2809.15(b).
(b) The successful bidder will become
the presumptive leaseholder or
preferred applicant only after making
the payments required in paragraph (d)
and satisfying the requirements of this
section and § 2803.10. If the successful
bidder does not satisfy these
requirements, the BLM may make the
next highest bidder the successful
bidder under § 2809.17(b) or re-offer the
lands under § 2809.17(d).
(1) Presumptive leaseholder. (i) The
successful bidder will become a
presumptive leaseholder if:
(A) The lands for which the bidder
has successfully bid are located within
a designated leasing area; and,
(B) The notice of the competitive
process indicated that a successful
bidder will become a presumptive
leaseholder.
(ii) A presumptive leaseholder will be
awarded a lease only if the presumptive
leaseholder submits a proposed Plan of
Development in accordance with
§ 2804.25(c) and the proposed Plan of
Development is approved by the BLM.
(2) Preferred applicant. A successful
bidder who does not become a
presumptive leaseholder in accordance
with § 2809.15(b)(1) may become a
preferred applicant. The preferred
applicant’s application for a grant or
lease will be processed for the parcel
identified in the submission under
§ 2809.12(b). Approval of the
application is not guaranteed and is
solely at the BLM’s discretion. The BLM
will not process other applications for
solar and wind energy development on
lands where a preferred applicant has
been identified, unless allowed by the
preferred applicant.
*
*
*
*
*
(d) * * *
(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;
(2) By the close of official business
hours on the day on which the BLM
conducts the competitive process or
such other time as the BLM may have
specified in the offer notices, submit for
each parcel:
(3) Within 15 calendar days after the
day on which the BLM conducts the
competitive process, submit the balance
of the bonus bid (after the variable
offsets are applied under paragraph (c)
of this section) to the BLM office
conducting the process; and
(4) Within 15 calendar days after the
day on which the BLM conducts the

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competitive process, submit the
application filing fee under § 2804.12(c)
less the application fee submitted under
§ 2809.11(c)(1) (if you are the preferred
applicant), or submit the acreage rent for
the first full year of the lease as
provided in part 2806 (if you are the
presumptive leaseholder).
(5) You may be required to pay
reasonable costs in addition to payment
of the application filing fee when
processing your application, pursuant to
§ 2804.14. A processing or monitoring
Category 6 cost recovery fee may be
reduced by the application filing fee
paid when submitting an application.
(e) The successful bidder will not
become the preferred applicant or be
offered a lease and the BLM will keep
all money that has been submitted with
the competitive process if the successful
bidder does not satisfy the requirements
of paragraph (d) of this section. In this
case, the BLM may make the next
highest bidder the successful bidder
under § 2809.17(b) or re-offer the lands.
■ 40. Amend § 2809.16 by redesignating
paragraph (c)(11) as paragraph (c)(13),
revising paragraphs (c) introductory text
and (c)(10), adding paragraphs (c)(11)
and (12), revising newly redesignated
paragraph (c)(13), and adding paragraph
(e) to read as follows:
§ 2809.16

When do variable offsets apply?

*
*
*
*
(c) The variable offset may be based
on the following factors, including
progressive steps towards:
*
*
*
*
*

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*

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(10) Public benefits;
(11) Use of items qualifying for the
Domestic Content preference;
(12) Use of a project labor agreement;
and
(13) Other factors.
*
*
*
*
*
(e) If the successful bidder’s eligibility
for a variable offset cannot be verified
until a later time, the BLM may require
the successful bidder to submit the full
bid amount, without taking into account
the variable offset, and hold the amount
of the variable offset in suspense. The
amount of the bonus bid corresponding
to the variable offset will be refunded or
credited to the successful bidder once
the successful bidder has demonstrated
that it has qualified for the variable
offset. The BLM may set a deadline in
the notice of competitive process by
which the successful bidder must
demonstrate its qualifications.
41. Amend § 2809.17 by revising
paragraph (b) and removing paragraph
(d) to read as follows:

■

§ 2809.17 Will the BLM ever reject bids or
re-conduct a competitive process?

*

*
*
*
*
(b) We may make the next highest
bidder the successful bidder if the first
successful bidder does not satisfy the
requirements of § 2809.15, does not
execute the lease, or is for any reason
disqualified from holding the lease.
*
*
*
*
*

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42. Amend § 2809.18 by revising the
introductory text and paragraphs (a), (b),
and (f) to read as follows:

■

§ 2809.18 What terms and conditions
apply to a solar and wind energy
development lease?

The lease will be issued subject to the
following terms and conditions:
(a) Site control. A lease provides site
control to the leaseholder. The term of
your lease will be consistent with
§ 2805.11(b) and will terminate on
December 31 of the final year of the
lease term. You may submit an
application for renewal under
§ 2805.14(g). A leaseholder may not
construct any facilities on the right-ofway until the BLM issues a notice to
proceed or other written form of
approval to begin surface disturbing
activities.
(b) Rent. You must pay any rent as
specified in § 2806.52.
*
*
*
*
*
(f) Assignments. You may apply to
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(e), except for modifications
required under § 2805.15(e).
*
*
*
*
*
§ 2809.19
■

[Removed]

43. Remove § 2809.19.

[FR Doc. 2024–08099 Filed 4–30–24; 8:45 am]
BILLING CODE 4331–29–P

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