Addition of Regulations Specific to the Communications Uses Program

The final rule updated the regulations that govern the communications uses program by creating a new Part 2860 within Title 43 of the CFR. The final rule moved preexisting regulations pertaining to communications uses rights-of-way (ROWs) authorized under the Federal Land Policy and Management Act of 1976, as amended (FLPMA), from Part 2800 to Part 2860. The final rule also added provisions to identify processing timeline requirements, streamline processes, establish new customer service standards, improve response times, and add certain program-specific definitions. This IM addresses the following issues:  

• 270-Day Processing Requirement 

• Electronic Filing  

• Maintenance Actions 

• Occupants with Their Own Facilities 

• Communications Uses Application Prioritization. 

270 Day Processing Requirement 

In compliance with the timing requirements of the MOBILE NOW Act,  the final rule provides that the Bureau of Land Management (BLM) will grant or deny any communications uses application within 270-calendar days.2 Fiber optic projects are considered communications uses and are subject to the 270-calendar day requirement. This requirement applies to applications for a new ROW and for the amendment, assignment, or renewal of an existing ROW. The processing time begins once an application is considered complete or “duly filed.” Generally, an application is duly filed when any applicable cost recovery fees are paid and the application includes the following components, required by 43 CFR 2864.12(a): 

• Plan of Development 

• Technical Data Sheet (if applicable) 

• Map(s) identifying the proposed project location in GIS or equivalent format 

• Construction Site Plans or Engineered Drawings 

• Any Supplemental Documents required by the SF-299 at page 5 

• Power of Attorney or other appropriate documentation for an authorized agent (if applicable) (43 CFR 2803.11(a)) 

By rule, an applicant must use SF-299 (43 CFR 2864.24) to apply for a communications use ROW. Once the local office determines an application is “duly filed,” it must update the Mineral & Land Records System (MLRS) case for the application with case action “application complete” (action code 110). Doing so starts the 270-calendar day window for processing the application. 

If there are any delays when processing an application, local offices should provide additional information in the MLRS case using the “Issue Description/Reason Detail” field on the “application complete” case action.  For example, the local office might note that a field visit for application-related surveys was delayed due to adverse weather conditions at the proposed communications site. 

At any time during processing, if an office anticipates the project application process will exceed 270 calendar days, the office must notify the Lands, Realty and Cadastral Survey Division Chief (HQ-350) through the appropriate State Director’s Office. 

Once the local office processes the application, one of the following case actions must be entered into MLRS to indicate that application processing is complete: 

• Authorization offered applicant (action code 241) 

• Application rejected/denied (action code 125) 

• Application withdrawn (action code 130) 

• Post authorization application withdrawn (action code 037) 

This data entry process will enhance the BLM’s ability to track processing times and provide accurate reporting pursuant to requirements in Executive Order (E.O.) 13821 and in response to requests from congressional office representatives and other agencies.  

Electronic Filing  

43 CFR 2864.12(a) provides for the electronic filing of communications uses ROW applications on SF-299. Applications are available in any office or on the BLM website and may be submitted either electronically directly by the applicant using the MLRS system or by email to the office where the project is located. An application for communications uses may also be submitted in hard copy with a handwritten or digital signature to the local office. If signed by an authorized agent, a supplemental document for proof of ability to sign on behalf of the applicant is required, without regard to whether the application is electronically or physically signed. 

When an applicant submits a SF-299 electronically via MLRS, a traditional wet signature is not required. Alternative electronic signature methods may include a data entry field prompting a user to type in their name or initials; an “I agree” check box; or a digitized signature, such as a graphical image of a handwritten signature created using a digital pen and pad or a user’s mouse. 

SF-299 applications for other FLPMA (43 CFR 2804.12) and Mineral Leasing Act ROW applications (43 CFR 2884.11) may also be filed electronically.  

Maintenance Actions 

All ROWs provide the holder with the ability to maintain their authorized facilities to ensure that the holder stays in compliance with the terms and conditions of its ROW. The authorized facilities described on the first page of the land use authorization (or in Exhibit B) should include the following (if applicable): 

• Dimensions of the facilities: 

• Ancillary facilities (concrete slabs, fencing, ice bridges, fuel tanks – number of and capacity, etc.) 

• Number of equipment cabinets 

• Tower height and type (lattice, monopole, guyed, etc.) 

• Building material type (prefab concrete, concrete block, wood, etc.) 

• Power output (kV) and fuel type (propane, diesel, etc.) 

• Number of solar panels 

• Access to the facility (length, width, type) 

The BLM may require the holder to take certain steps to stay in compliance with the terms and conditions of its authorization. Any substantial deviations from the facility descriptions should be documented and the holder should file an SF-299 to amend its authorization.  

The replacement or addition of antennas on the tower, lighting (following current Federal safety requirements regarding lighting), or radio equipment in the shelter is considered a 

 maintenance action and does not require an amendment.3  

The replacement of authorized facilities and improvements are considered a maintenance action only when the replacement of said facilities or improvements are the same in frequency, dimensions, materials, and location. A communications use lease may nevertheless require additional approval from the BLM even for maintenance actions in cases of site-specific resource constraints.  

If the holder notifies the agency of a maintenance action not requiring an amendment to the ROW land use authorization, the official case file should note this without further action. 

Occupants with Their Own Facilities 

43 CFR 2866.36 clarifies when the BLM requires a separate authorization for tenants or customers in a non-federally owned facility.  

A ROW holder may allow a third party to use an existing facility within their grant without a separate authorization from the BLM.  A building is considered a permanent structure built on a foundation with suitable climate control for human occupancy during equipment installation, maintenance, and use. The holder accommodating the occupant’s use must report that use to the BLM each year for rental purposes.  

On the other hand, if an occupant would also need their own facilities or improvements, such as an equipment cabinet or generator, then it would need to obtain its own authorization from the BLM.  The occupant then becomes a facility owner and is also required to submit an inventory certification and pay rent annually for their communication use or uses.   

Communications Uses Application Prioritization 

43 CFR 2864.35 states, “The BLM will prioritize your application in a manner that assists in meeting the needs of underserved, rural, and Tribal communities and first responders to strengthen telecommunications infrastructure throughout the United States.” Authorized Officers should prioritize applications for communications uses over other ROW applications if approval of the communications uses would benefit one of the communities identified in that section.