Revisions to the Regulations Regarding Intermittent Energy

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>Bureau of Land Management</SUBAGY> <CFR>43 CFR Part 2800</CFR> <DEPDOC>[Docket No. BLM-2025-0142; PO #4820000251; Order #02412-014-004-047181.0]</DEPDOC> <RIN>RIN 1004-AF45</RIN> <SUBJECT>Revisions to the Regulations Regarding Intermittent Energy</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Bureau of Land Management (BLM), Interior. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of the Interior (Department) is amending the BLM rules governing acreage rent rate and capacity fee for solar and wind energy generation on Public Lands to effectuate changes required by the “One Big Beautiful Bill Act” (OBBB) enacted on July 4, 2025. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> The final rule is effective on August 1, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> The BLM has established a docket for this rulemaking in the <E T="03">Federal eRulemaking Portal: https://www.regulations.gov.</E> In the Searchbox, enter “RIN 1004-AF45” and click the “Search” button. Follow the instructions at this website. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Jayme Lopez, Interagency Coordination Liaison, by phone at (520) 235-4581, or by email at <E T="03">energy@blm.gov</E> for information relating to the rule. Please use “RIN 1004-AF45” 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-of-contact in the United States. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Historically, the BLM has set rental rates and capacity fees for solar and wind energy rights-of-way based on a determination of fair market value consistent with the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1764(g)) (FLPMA). Congress, through Section 50302 of Public Law 119-21, 139 Stat. 71, enacted on July 4, 2025, (“OBBB”) established specific rent and capacity fees for rights-of-way authorizing solar and wind energy generation facilities on public lands. Section 50302's provisions governing acreage rent rates and capacity fee supersede those in the BLM's current right-of-way regulations governing solar and wind energy. The Department is therefore revising the BLM right-of-way regulations found at 43 CFR part 2800 to reflect the acreage rent rates and capacity fee required by statute. Specifically, through this final rule the Department is revising §§ 2801.5, 2805.12, 2806.50, 2806.51, 2806.52, 2807.21, and 2809.16. The Title 43 CFR part 2800 regulations were updated to comprehensively address solar and wind energy generation by a final rule published in the <E T="04">Federal Register</E> on December 19, 2016, titled “Competitive Processes, Terms, and Conditions for Leasing Public Lands for Solar and Wind Energy Development and Technical Changes and Corrections” (81 FR 92122). That rule built upon existing right-of-way regulations and policies to specifically address solar and wind energy development by establishing a competitive leasing framework, a formula that included an acreage rent along with a capacity fee, and incentives to encourage project siting within designated leasing areas (DLAs). On May 1, 2024, the Department issued a new rule entitled “Rights-of-Way, Leasing, and Operations for Renewable Energy.” These revisions included updates to the methodology for determining acreage rents and capacity fees for solar and wind energy development projects that significantly reduced revenue from these projects permitted on public lands and the establishment of financial incentives in the form of additional capacity fee reductions for projects utilizing American-made components or constructed using project labor agreements. Section 50302(b) of the OBBB established a new formula for calculating the acreage rents for solar and wind generation facilities located on public lands. The statutory formula in section 50302(b)(2)(A) is A X B X ((1 + C) ‸ D) where A is the per-acre rate, defined as the average of the per-acre pastureland rental rates published in the Cash Rents Survey by the National Agricultural Statistics Service for the State in which the right-of-way is located over the 5 calendar-year period preceding the issuance or renewal of the right-of-way; B is the encumbrance factor, which is 100 percent for a solar energy generation facilities and not less than 10 percent for a wind energy generation facility, as determined by the Secretary; C is the Annual Adjustment Factor, which is set at 3 percent; and D is the year in the term of the right-of-way. Section 50302(b) also requires the Secretary to collect the rent not later than January 1 of each calendar year, consistent with section 504(g) of FLPMA. Once a solar or wind generation facility is generating electricity, section 50302(c)(2) sets the capacity fee for solar and wind energy to be the greater of the acreage rent and 3.9 percent of the gross proceeds from the sale of electricity produced by the renewable energy project. Section 50302(c)(1) also allows the Secretary to collect the capacity fee annually based on energy produced and sold, rather than directing that it be collected not later than January 1 of each calendar year. Section 50302(c)(3) also allows holders of wind energy rights-of-way the opportunity to apply for a 10 percent reduction in their capacity fee if “not less than 25 percent of the land within the area of the right-of-way is authorized for use, occupancy, or development with respect to an activity other than the generation of wind energy for the entirety of the year in which the capacity fee is collected.” <E T="03">See</E> Public Law 119-21, section 50302(c)(3)(B), 139 Stat. 71 (2025). The Department is revising certain provisions in 43 CFR part 2800 to reflect Congress's determination with regard to required acreage rent rate and capacity fee for solar and wind facilities on public lands. Because the rate and fee changes went into effect on July 4, 2025, the date that the OBBB was enacted, and these targeted revisions merely effectuate those changes, the Department is issuing this final rule revising the following provisions in 43 CFR part 2800: the definitions in § 2801.5(b), the rents and fees for solar and wind energy development provisions at § 2806.50, the grant and lease rate adjustments in § 2806.51, the acreage rent formula at § 2806.52(a), and the capacity fee formula at § 2806.52(b); as well as making conforming changes to § 2805.12(e)(2). Prompt issuance of this final rule will avoid any confusion on the part of the regulated community as to what the acreage rent rate and capacity fee will be due during the next billing cycle. The enactment of section 50302, independently and alone, justifies these revisions to 43 CFR part 2800. The Department has no interest in maintaining regulations in the Code of Federal Regulations that have been superseded by, and are contrary to, a lawfully enacted statute. This final rule simply aligns the BLM's regulations in part 2800 with the specific statutory requirements established by Section 50302 that went into effect on July 4, 2025. The Department's authority for the rulemaking procedures followed in this action is provided by the Administrative Procedure Act (APA, 5 U.S.C. 551 through 559). In general, the APA requires an agency issuing a rule to provide prior notice and an opportunity for public comment. The APA section 553(b)(B), however, provides an exemption from notice-and-comment requirements “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” <E T="03">Id.</E> § 553(b)(B). This action is being issued without prior notice or opportunity for public comment because the Department finds that the APA “good cause” exemption from notice-and-comment requirements applies here because the statutory direction in Section 50302 involves no agency discretion and issuing the rule will help reduce potential public confusion regarding paying rents and capacity fees for solar and wind energy generation facilities located on public lands. <HD SOURCE="HD1">Executive Order 12866—Regulatory Planning and Review and Executive Order 13563—Improving Regulation and Regulatory Review</HD> Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. Congress has defined the acreage rent rate and capacity fee that the BLM is required to collect for solar and wind generation facilities on public lands in Section 50302. This final rule simply updates the applicable BLM regulations to reflect these statutory provisions; therefore, this is not a significant rule. Executive Order 13563 reaffirms the principles of Executive Order 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. Executive Order 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that agencies must base regulations on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The Department developed this rule in a manner ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 23k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━