[Congressional Record Volume 148, Number 100 (Monday, July 22, 2002)]
[House]
[Pages H5001-H5002]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                REASONABLE RIGHT-OF-WAY FEES ACT OF 2002

  Mrs. CUBIN. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 3258) to amend the Federal Lands Policy and Management Act 
of 1976 to clarify the method by which the Secretary of the Interior 
and the Secretary of Agriculture determine the fair market value of 
rights-of-way granted, issued, or renewed under such act to prevent 
unreasonable increases in certain costs in connection with the 
deployment of communications and other critical infrastructure, as 
amended.
  The Clerk read as follows:

                               H.R. 3258

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Reasonable Right-of-Way Fees 
     Act of 2002''.

     SEC. 2. CLARIFICATION OF FAIR MARKET RENTAL VALUE 
                   DETERMINATIONS FOR PUBLIC LANDS AND FOREST 
                   SERVICE RIGHTS-OF-WAY.

       (a) Linear Rights-of-Way Under Federal Land Policy and 
     Management Act.--Section 504 of the Federal Land Policy and 
     Management Act of 1976 (43 U.S.C. 1764) is amended by adding 
     at the end the following new subsection:
       ``(k) Determination of Fair Market Value of Linear Rights-
     of-Way.--(1) Effective upon the issuance of the rules 
     required by paragraph (2), for purposes of subsection (g), 
     the Secretary concerned shall determine the fair market 
     rental for the use of land encumbered by a linear right-of-
     way granted, issued, or renewed under this title using the 
     valuation method described in paragraphs (2), (3), and (4).
       ``(2) Not later than one year after the date of enactment 
     of the Reasonable Right-of-Way Fees Act of 2002, and in 
     accordance with subsection (k), the Secretary of the Interior 
     shall amend section 2803.1-2 of title 43, Code of Federal 
     Regulations, as in effect on the date of enactment of such 
     Act, to revise the per acre rental fee zone value schedule by 
     State, county, and type of linear right-of-way use to reflect 
     current values of land in each zone. The Secretary of 
     Agriculture shall make the same revisions for linear rights-
     of-way granted, issued, or renewed under this title on 
     National Forest System lands.
       ``(3) The Secretary concerned shall update annually the 
     schedule revised under paragraph (2) by multiplying the 
     current year's rental per acre by the annual change, second 
     quarter to the second quarter (June 30 to June 30) in the 
     Gross National Product Implicit Price Deflator Index 
     published in the Survey of Current Business of the Department 
     of Commerce, Bureau of Economic Analysis.
       ``(4) Whenever the cumulative change in the index referred 
     to in paragraph (3) exceeds 30 percent, or the change in the 
     3-year average of the 1-year Treasury interest rate used to 
     determine per acre rental fee zone values exceeds plus or 
     minus 50 percent, the Secretary concerned shall conduct a 
     review of the zones and rental per acre figures to determine 
     whether the value of Federal land has differed sufficiently 
     from the index referred to in paragraph (3) to warrant a 
     revision in the base zones and rental per acre figures. If, 
     as a result of the review, the Secretary concerned determines 
     that such a revision is warranted, the Secretary concerned 
     shall revise the base zones and rental per acre figures 
     accordingly.''.
       (b) Rights-of-Way Under Mineral Leasing Act.--Section 28(l) 
     of the Mineral Leasing Act (30 U.S.C. 185(l)) is amended by 
     inserting before the period at the end the following: ``using 
     the valuation method described in section 2803.1-2 of title 
     43, Code of Federal Regulations, as revised pursuant to 
     section 504(k) of the Federal Land Policy and Management Act 
     of 1976 (43 U.S.C. 1764(k))''.
  The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from 
Wyoming (Mrs. Cubin) and the gentleman from American Samoa (Mr. 
Faleomavaega) each will control 20 minutes.
  The Chair recognizes the gentlewoman from Wyoming (Mrs. Cubin).
  Mrs. CUBIN. Mr. Speaker, I know many of my colleagues, especially 
from the West, are strong advocates of fair and reasonable Federal land 
rights-of-way fees.
  This Nation's system of roadways and railways was born of effective 
partnerships in planning and construction between the Federal 
Government and private industry. Today, we face the challenge of 
expanding the next generation of technology and energy infrastructures 
to the underserved areas of the country and bringing commercial 
benefits to citizens set apart by geographic, economic and digital 
divides.
  I serve as a member of the House Committee on Energy and Commerce, 
Subcommittee on Telecommunications and the Internet. As such, I have 
been exploring ways to facilitate the expansion of telecommunications 
infrastructure in my home State of Wyoming.
  In doing so, I became aware of a significant Federal obstacle to 
infrastructure development nationwide. Recent applications of the 
Federal Land Policy and Management Act, which I will call FLPMA, have 
resulted in exorbitant increases in fees to cross Federal lands. 
Telecommunications providers, particularly those building the next 
generation of fiber optic broadband infrastructure, have been 
specifically targeted for these fee increases, while other 
infrastructure providers have been put on notice of changes to come.
  FLPMA requires that private users of public lands pay a fair price 
for that privilege, a policy that protects the value of our Federal 
lands, helps ensure that those resources continue to be available to 
and accommodating of a number of a multitude of compatible uses.
  Recent interpretations of FLPMA, however, have motivated policies 
which reach way beyond the value of Federal lands, attempting to 
associate the right of way to cross Federal lands with the revenues 
generated by the use of telecommunications technologies.

[[Page H5002]]

  In the exercising of our public trust, the Federal Government 
protects and preserves the public interest in our Federal lands. I am 
confident, however, that there is little public interest in turning our 
Federal lands into toll booths or roadblocks on the information 
superhighway or along the path of any of our Nation's critical 
infrastructures.
  In 1999 and 2000, revisions to the right-of-way rental fee schedules 
by the Bureau of Land Management and the U.S. Forest Service led to 
some fiber optic telecommunications companies receiving fee increases 
of 100 to 150 times their previous annual bills.

                              {time}  1515

  Congress put a temporary halt to these interim revisions to existing 
right-of-way regulations in the fiscal year 2001 appropriations bill.
  As the agent situation proceedings toward the rulemaking process 
required to change existing right-of-way fees, it is important that 
their responsibilities regarding the determination and collection of 
right-of-way fees be clear and that we avoid a reiteration of the 
previous misguided proposals.
  A permanent solution must be found. H.R. 3258, the Reasonable Right-
of-Way Fees Act, is that solution. H.R. 3258 clarifies the 
responsibilities we have to protect the value of Federal lands, 
explicitly limiting fees we charge for rights-of-way to the value of 
those lands.
  As a representative of the most rural State in the country, I 
recognize the tremendous value the vast open spaces of our rural West 
has, including the lands managed by the Federal Government. These lands 
should not become an obstacle to infrastructure development. Charging 
fair market value for the use of Federal lands does not mean a share in 
the revenues associated with the facilities crossing Federal lands.
  H.R. 3258 was introduced to help guarantee that Federal lands will 
continue to be protected as valuable national resources and ensures 
that these lands will not present unnecessary obstacles to 
infrastructure deployment and improvement.
  During the Committee on Resources's legislative hearing on H.R. 3258, 
the BLM witness testified that the methodology laid out in the bill may 
be too prescriptive and would mandate the BLM and other agencies do 
more than one appraisal when determining the rental fee right-of-way 
for an individual. During the Committee on Resources' consideration of 
H.R. 3258, I offered an amendment in the nature of a substitute that 
simply codified the existing BLM regulations.
  These regulations, which were promulgated in 1987, lay out a formula 
for the right-of-way fee schedule based solely on the value of the 
land. This methodology will prevent the spikes and fluctuations many 
telecommunications and pipeline companies found when the BLM and Forest 
Service valued the right-of-way by the revenue generated by the 
products that crossed Federal lands.
  The substitute that was accepted by the committee will ensure a fair 
return to the Federal Government by directing the Secretaries of the 
Interior and Agriculture to annually assess the changes in the land 
values and predicate the fee schedule formula on those land value 
increases.
  We all know that land values typically will increase over time. They 
do not, however, increase by uncontrollable increments like a 
throughput valuation that had been used does.
  H.R. 3258 is endorsed by, among others, the TelROW Coalition, which 
represents the interests of telecommunications companies providing 
services throughout the country.
  I want to thank the Departments of the Interior and Agriculture for 
their help in providing guidance on this complicated issue and for 
their instruction memorandum issued to field officials ensuring that 
the right-of-way rental fees will be based solely on land values.
  Mr. Speaker, I look forward to the House's swift passage of this bill 
and prompt consideration by the Senate.
  Mr. Speaker, I reserve the balance of my time.
  Mr. FALEOMAVAEGA. Mr. Speaker, I yield myself such time as I may 
consume.
  (Mr. FALEOMAVAEGA asked and was given permission to revise and extend 
his remarks.)
  Mr. FALEOMAVAEGA. Mr. Speaker, I first want to thank the gentlewoman 
for being the primary sponsor of this proposed legislation.
  The Federal Lands Policy Management Act requires those seeking a 
right-of-away across Forest Service or BLM land to pay a fee based on 
the fair market value of that right-of-way. Despite this requirement, 
however, investigations conducted by the Department of the Interior's 
Inspector General and the General Accounting Office have provided ample 
evidence that the right-of-way fees currently being charged by the 
agencies are far below fair market value.
  Mr. Speaker, States, local governments, and private individuals all 
charge significantly more than the Federal Government for the rights-
of-way across lands they own. In particular, the Inspector General 
report estimated that the fees charged by the BLM were as much as $50 
million below fair market value. This undercharging means that large 
corporations who stand to make vast profits on the use of public lands 
are not being required to pay the American people a fair rate of return 
for that privilege.
  As a result, Mr. Speaker, we share the desire of the gentlewoman from 
Wyoming (Mrs. Cubin) to correct this problem. While we had some 
concerns regarding the multiple appraisal approach contained in the 
bill as introduced, in working with the gentlewoman from Wyoming we 
feel we have agreed on an approach that will address this problem more 
effectively.
  Mr. Speaker, as amended, H.R. 3258 will require the agencies to 
review their existing fee schedules, and the land valuations which 
underlie them, to ensure that they represent current values. In 
addition, this measure will ensure that, once these new fees have been 
promulgated, they will be adjusted annually for inflation.
  This approach, Mr. Speaker, may not be perfect, but it certainly is 
an improvement over the status quo and should move us closer to a 
system that adequately compensates the taxpayers for the use of their 
lands.
  I would like to once again thank the gentlewoman from Wyoming for her 
willingness to work with us on this side of the aisle, and I urge the 
adoption of this proposed bill.
  Mrs. CUBIN. Mr. Speaker, I have no further requests for time, and I 
yield back the balance of my time.
  Mr. FALEOMAVAEGA. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Culberson). The question is on the 
motion offered by the gentlewoman from Wyoming (Mrs. Cubin) that the 
House suspend the rules and pass the bill, H.R. 3258, as amended.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill, as amended, was passed.
  The title of the bill was amended so as to read:
         Amend the title so as to read: ``A bill to amend the 
     Federal Land Policy and Management Act of 1976 and the 
     Mineral Leasing Act to clarify the method by which the 
     Secretary of the Interior and the Secretary of Agriculture 
     determine the fair market value of certain rights-of-way 
     granted, issued, or renewed under these Acts.''.
  A motion to reconsider was laid on the table.

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