[Federal Register Volume 60, Number 218 (Monday, November 13, 1995)]
[Rules and Regulations]
[Pages 57058-57072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27619]




[[Page 57057]]

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Part II





Department of the Interior





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Bureau of Land Management



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43 CFR Part 2800 et al.



Rights-of-Way, Rental Schedule for Communication Uses; Final Rule and 
Notices

  Federal Register / Vol. 60, No. 218 / Monday, November 13, 1995 / 
Rules and Regulations  
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[[Page 57058]]


DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Parts 2800, 2810, 2880

[WO-350-1430-00-24-1A]
RIN 1004-AC12


Rights-of-Way, Rental Schedule for Communication Uses

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: This final rule amends right-of-way regulations containing 
procedures for setting rent for communication uses located on lands 
administered by the Bureau of Land Management. The final rule 
establishes procedures and a rental schedule for determining rent for 
nine categories of communication uses. The rental schedule is identical 
to one recently adopted by the U.S. Forest Service for use on National 
Forest System lands in the Western States.
    These revisions establish a fair and consistent approach for 
determining rental payments for various communication uses, based on 
the population of the community nearest the site and reflective of fair 
market value as required by Title V of the Federal Land Policy and 
Management Act of 1976. The final rule encourages tenants in a 
communication facility to consolidate their separate authorizations 
under one authorization, reducing billing costs and minimizing agency 
involvement in managing use and occupancy of the facility. The 
schedules will reduce BLM costs associated with obtaining appraisals, 
and can be expected to reduce the number of disputes concerning rental 
values. Rental payments will be applied on a consistent basis and allow 
users to anticipate changes in rent for planning purposes. At the same 
time, the administrative process implementing the schedule has been 
simplified and includes sufficient flexibility and safeguards to 
minimize disruption in business relationships and service.

DATES: The effective date of the regulations is December 13, 1995.

ADDRESSES: Inquiries or suggestions should be sent to: Director (350), 
Bureau of Land Management, U.S. Department of the Interior, Room 5555, 
Main Interior Building, 1849 C Street NW, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Dave Cavanaugh, (202) 452-7774.

SUPPLEMENTARY INFORMATION:

Statutory Requirements

    At 43 U.S.C. 1701(a)(9), FLPMA states that it is the policy of the 
United States to receive the fair market value of the use of the public 
lands and their resources unless otherwise provided by statute.
    At 43 U.S.C. 1761(a), FLPMA authorizes the Secretary of the 
Interior to grant, issue, or renew rights-of-way for communication 
uses, including systems for transmission or reception of radio, 
television, telephone, telegraph, and other electronic signals.
    Section 504(g) of FLPMA (43 U.S.C. 1764(g)) requires the holder of 
a right-of-way to pay annually in advance the fair market value thereof 
as determined by the Secretary granting, issuing, or renewing the 
right-of-way. The Secretary may waive part or all of the payment when 
it is found to be equitable and in the public interest. Rights-of-way 
issued at less than fair market value are not assignable except with 
the approval of the Secretary issuing the right-of-way.
    The regulations implementing the right-of-way provisions of FLPMA 
are found in 43 CFR part 2800. Portions of these regulations relating 
to cost recovery were last amended in 1987. Provisions for rental 
payments are found in 43 CFR subpart 2803, and state in part that the 
holder of a right-of-way grant or temporary use permit is required to 
pay annually, in advance, with certain exceptions, the fair market 
value rental. The authorized officer determines the rental, applying 
sound business management principles and, so far as practicable and 
feasible, using practices used in commerce.
    Payment of fair market rent is different from provisions of 43 CFR 
subpart 2808 on reimbursement of reasonable costs in processing 
applications. The payment of rent for the right to use land is separate 
from payment of fees for costs associated with processing an 
application.

Background

    The BLM currently administers approximately 3,200 communication 
site authorizations and collects annually between $1.5 and $2.0 million 
dollars in rental payments. Approximately 50 percent of the authorized 
users pay no rent because they are exempt under existing regulations. 
Examples of holders who are exempt from rent include local law 
enforcement and emergency response groups; Federal, State, and county 
agencies; and public broadcast stations. The remaining communication 
use right-of-way holders pay an annual rental based upon BLM-approved 
appraisals.
    Generally, BLM bases rents for new uses on a preliminary estimate 
of fair market value until an appraisal can be completed. As a 
customary practice, rents for existing users are updated every 5 years 
to ensure that the amounts reflect changes in market conditions. Many 
BLM appraisals are out-of-date because statutory language in successive 
appropriations bills from 1990 to 1994 limited the Secretary's 
authority to raise rents. The 1995 appropriations bill did not contain 
any limiting language.
    In 1992, Congress directed both the Secretary of Agriculture and 
the Secretary of the Interior to establish a Radio and Television Use 
Fee Advisory Committee. The advisory committee report made several 
recommendations. These included use of rental schedules instead of 
individual appraisals for setting rental payments; acceptance of market 
ranking methods that relate to the population served; a phase-in period 
for rent increases greater than $1,000; a provision for charging 25 
percent of the gross sublease income; and annual increases based on the 
Consumer Price Index, Urban Consumer, U.S. City Average (CPI-U). These 
recommendations were considered in developing the proposed rule.
    The BLM and FS endorsed many of the Committee's recommendations on 
rental implementation and administration, but rejected its proposed 
rental schedule on the basis that it did not represent fair market 
rental.
    In July 1993, the FS published a notice in the Federal Register (58 
FR 37840, July 13, 1993) proposing a schedule for four categories of 
commercial uses and invited public comment. The uses included 
television broadcast, FM radio broadcast, commercial mobile radio, and 
cellular telephone uses. The FS proposed schedule for television and 
radio adopted many proposals of the advisory committee. However, the 
proposed rent was higher than the schedule proposed by the advisory 
committee. The comment period ended October 12, 1993. In order to 
coordinate with BLM, the FS decided to delay their final policy.
    The FS and BLM jointly reviewed and considered the comments 
received by the FS on its July 1993 proposed policy. The FS decided to 
delay publishing their final notice pending BLM's publication of a 
proposed rule and review of comments.
    On July 12, 1994, BLM published a proposed rule in the Federal 
Register (59 FR 46806). The BLM rule incorporated many of the comments 

[[Page 57059]]
received by the FS regarding the four categories of commercial 
communication uses, and the ranges of population served by a facility, 
that serve as variables on the schedule to determine the rent to be 
charged. BLM's proposal expanded the number of site categories from 4 
to 11, and increased the number of population ranges in the schedule to 
minimize impacts on holders located on sites serving populations at the 
lower end of the range. The proposed rule was drafted in cooperation 
with the FS. It was agreed that the BLM proposal would be the basis for 
the FS's final notice.
    On July 12, 1994, the House of Representatives Committee on Natural 
Resources, Subcommittee on National Parks, Forests and Public Lands, 
and the Committee on Government Operations, Subcommittee on 
Environment, Energy, and Natural Resources, held a joint hearing on 
rents for communication sites on Federal lands. At the hearing, the 
General Accounting Office (GAO) released a report (GAO/RCED-94-248) and 
testified that fees being charged for the communication sites on 
Federal lands are, in most instances, significantly below fair market 
value. The Committee strongly encouraged BLM and FS to promulgate 
rental schedules as soon as possible.
    The GAO report stated that FS rental payments are based on an 
outdated formula established 40 years ago, and that BLM rents are based 
on out-of-date appraisals. GAO recognized that agency efforts to raise 
rents had been prohibited by Congress, and warned that if these 
prohibitions continued, the Federal government would not obtain fair 
market value for communications sites for many years.
    The GAO also found that BLM and FS do not have the basic 
information needed to manage communication sites effectively and to 
ensure that the agencies are collecting all of the revenues owed to the 
government. GAO recommended that the agencies develop and maintain 
complete and reliable program-wide data on the number and types of 
uses, and amount of rent that they generate.

The Proposed Rule

    The proposed rule amending regulations for determining annual rent 
was published in the Federal Register (59 FR 35596) on July 12, 1994. 
The comment period closed on September 12, 1994. On September 12, the 
BLM extended the comment period to October 12, 1994.
    The proposed rule contained amended procedures for setting annual 
rent for ten categories of communication uses on public lands, plus a 
category for facility managers. The rule proposed three major 
categories of use: broadcast, nonbroadcast, and other. Broadcast 
included television, FM radio, rebroadcast devices, and cable 
television. Nonbroadcast included commercial mobile radio service, 
cellular telephone, private mobile communications, common carrier 
microwave communications, private microwave, other communication uses, 
and facility management. The category ``other'' referred to small, 
unobtrusive, low power uses serving small numbers of customers. The 
rent for a facility with more than one category of use would have been 
based on its primary use authorized under terms of the right-of-way.
    The proposed rule included different methods for setting the base 
rent for each of the categories. For instance, it proposed that rent 
for television and FM radio stations be based on the population of the 
principal community or communities primarily served by the transmitter. 
For cable television, the base rent was to be determined by the total 
number of subscribers as reported by the right-of-way holder.
    The proposed rule provided that the base rent for nonbroadcast 
uses--commercial mobile radio service, private mobile communication, 
cellular telephone, common carrier microwave, private microwave, 
facility manager and miscellaneous uses--would be determined by 
different factors. For these uses, rent would be determined by the 
population of the county in which the transmitter is located or the 
population of an adjacent or nearby county served by the transmitter, 
whichever is greater.
    In addition to a base rent for the authorized use of a facility, 
the proposed rule also included an assessment for additional users 
within the facility. The BLM proposed that right-of-way holders, 
typically the facility owner, be required to pay a percentage of gross 
rent received from the subleasing of space in the facility.
    Increases in the base rent and the percentage of gross rent were to 
be phased in over 5 years. Initial increases in the base rent in excess 
of $1,000 or 20 percent of the current rent, whichever is greater, 
would have been phased in. The proposed rule included provisions that 
the percentage of gross rent received from additional tenants in the 
facility be phased in; 15% during the first five years, and 25% 
thereafter.
    The proposed rule also required annual updates of the rental 
payments, required periodic review of the rental schedule, and 
reiterated BLM policy regarding waiver of rental.
    As proposed, the rule would have adopted a new procedure that would 
have reduced agency costs of setting and updating rental payments for 
new and existing right-of-way holders. The final rule adopts the basic 
procedure, in which the rental schedule is applied, eliminating most 
individual appraisals, encouraging consolidated billing under a master 
right-of-way authorization, and providing a means for annually updating 
the rent. The BLM estimates appraisals to cost approximately $2,000 
each. With more than 1,500 commercial communication site rights-of-way, 
each cycle of rent establishment could cost more than $3 million. The 
rule will eliminate much of this cost, although some appraisals will 
still be performed.

Organization of Rule

    This final rule amends 43 CFR 2803.1-2 Rental. This section of the 
existing regulations includes a schedule for linear rights-of-way, 
including oil and gas pipelines, related pipeline roads, ditches, 
canals, electric transmission lines, telephone, electric distribution, 
non-energy pipelines, and other linear uses. This final rule adds 
procedures and authorizes a rental schedule for non-linear 
communication site rights-of-way. The schedule itself appears elsewhere 
in this issue of the Federal Register.
    Many respondents to the proposed rule argued that the proposed 
rents were too high and would harm small entities, that the provision 
to charge a percent of the gross rent was unfair, and the different 
criteria in the schedules--population of the community or communities 
served or county population--were unworkable and would create 
inequities. Their overriding concern was that the procedure for setting 
rental payments was too complicated, that the schedule may not 
reasonably set rental payments, and that the new rental payments would 
potentially create problems unless there was some mechanism to 
alleviate them.
    In response to the comments, BLM made a number of changes in the 
final rule for nonlinear communication site rights-of-way. The schedule 
in its final form more closely reflects market rent and minimizes 
impacts on holders of sites serving smaller population areas. Rents 
will correlate with the population of the local community where the 
facility is situated or that it serves, or both, rather than distant 
communities served by the facility. Instead of having several different 
methods for determining population, the final rule utilizes the Ranally 
Metro Areas 

[[Page 57060]]
(RMA's) as identified in the ``Rand McNally Commercial Atlas and 
Marketing Guide, 1995'' for listed communities having a population of 
50,000 or more. Rental payments for uses on sites serving communities 
not listed and having a population of less than 50,000 will be based on 
the category of use and the most recent census performed by the U.S. 
Census Bureau for the community. Therefore, the final schedule that BLM 
is adopting more directly correlates to the population of the local 
community where the facility is situated.
    To simplify implementation further, the definitions for two 
categories have been broadened, resulting in the reduction of 
categories from 11 to 8. The Commercial Mobile Radio Service (CMRS) 
category has been broadened to include facility managers and ancillary 
microwave link equipment, and the microwave now includes common carrier 
microwave category.
    To improve consistency in setting rents, the final rule adopts the 
concept of using the schedule to determine the primary use of the 
facility and assessing an additional amount for other users. The base 
rent is determined by the use that generates the highest rent on the 
schedule (highest valued use) of all uses in the facility, excluding 
those uses that would qualify for an exemption or waiver. To avoid 
having to keep track of rents received from tenants in the facility, 
the final rule assesses an additional amount for each tenant occupying 
space in the facility. This responds to the contention in many comments 
that it was not a widespread practice for landowners to charge a 
percentage of gross rent from tenants. In addition, the final rule 
defines ``tenant'' to alleviate the potential for charging occupants in 
the facility who are customers paying for a communication service.
    In response to concerns that the rental schedule may be unfair, the 
final rule provides the authorized officer ample discretion to use 
other methods to set rental payments. Holders who believe the initial 
rents set by the schedule are unreasonable may ask the authorized 
officer to reconsider the initial rental assessment. The holder may 
request an individual appraisal or may provide recent leases for 
similar uses in similar locations to help BLM set appropriate rent. If 
agreement cannot be reached, the holder may appeal the rental 
determination. For those whose rent will increase more than $1,000 
during the first year, the amount over $1,000 will be phased in over 
the next five years. Also, the authorized officer may consider hardship 
requests or give partial waivers to holders who provide, without charge 
or at reduced rates, a valuable benefit to the public or programs of 
the Secretary.
    The final rule also simplifies the process for determining when the 
holder is eligible for phasing in increases in rent and the amount to 
be phased in. The final rule phases in increases of more than $1,000, 
removing the 20 percent or more calculation required in the proposed 
rule.
    Finally, the final rule provides that rental payments will be 
updated annually based on the Consumer Price Index. This applies to all 
rents, whether initially determined through the schedules, appraisals, 
or some other means. Increases in rent based on the Consumer Price 
Index would be limited to 5 percent. This will reduce the likelihood 
that rental payments will drop below market levels or result in sharp 
increases when the schedule is updated.
    The rule also adds sections 2800.0-9, 2812.0-9, and 2880.0-9 to the 
regulations. These sections merely codify the Notes on information 
collection currently found at the beginning of part 2800.
    Section 2803.1-2 has been reorganized in part in the final rule, 
and paragraphs in the proposed rule have been redesignated in the final 
rule to reflect this. Mainly, subparagraphs within paragraph (c) of the 
existing regulation have reen redesignated as paragraphs (e) through 
(h), and paragraph (e) of the proposed rule, which introduced the 
rental schedules, has been redesignated (d) in the final rule.

Analysis of Comments

    The BLM received a total of 61 comments on the proposed rule. All 
comments on the rule were shared and jointly analyzed by the BLM and 
FS.
    In general, eight major issues were identified in the comments. (1) 
Do proposed rents reflect fair market value? (2) Format of schedule. 
(3) Additional users. (4) Use of appraisals to set fair market rent. 
(5) Administrative complexity. (6) Phase-in. (7) Updating rental 
payments. (8) Use categories.

1. Do Proposed Rents Reflect Fair Market Value?

    Several respondents stated that the proposed rents were too high. 
Many of them objected to both the proposed rental payments and the 
proposal to charge an additional amount based on a percent of the gross 
receipts received from renting space in the facility. Several suggested 
that the proposed rental payments were unfair and would affect their 
economic survival.
    A few comments suggested that preparing individual appraisals would 
more accurately reflect fair market value than use of a schedule, while 
others expressed concern that individual appraisals would be used 
instead of the schedule. Others stated that the base rents were 
acceptable but totally disagreed with adding on a percentage of the 
gross for rental of space in the facility. A smaller number commented 
that the proposed rents were far too low and in some cases would not 
possibly cover the costs of processing the billing. Other comments 
stated that the right-of-way authorization conveyed fewer rights and 
therefore should be less valuable than leases conveyed in the private 
sector.
    The BLM intends the approach taken in developing the final schedule 
to achieve a reasonable estimate of fair market value, and believes 
that it succeeds in doing so. The BLM took information from a variety 
of sources into consideration in developing the schedule. These sources 
include (1) the report of the Radio and Television Broadcast Use Fee 
Advisory Committee, whose recommendations were discussed above, (2) 
information obtained by government appraisers, industry 
representatives, and private lessors, (3) market information provided 
by users and industry groups in response to the original FS notice and 
the BLM proposed rule, and (4) agency records showing current billings 
for new and existing users. The application of this information was 
described in the preamble to the proposed rule, and is revisited in 
this preamble in the discussion of public comments.
    Appraisals may provide a more accurate indication of the fair 
market value of a particular use on a specific site. However, the costs 
of performing individual appraisals--estimated at $2,000 each--would be 
enormous compared to those of implementing uniformly applicable 
schedules, reducing the returns to the Treasury for use of public 
resources. There would be pressure to increase the rents charged to 
make up for these costs. Also, the lag time involved in performing a 
large number of appraisals would be so great that some holders would be 
paying rents disproportionately higher or lower than others for 
significant periods of time. This might impel holders to complain of 
unequal treatment under the law.
    The rental process outlined in the final rule sets as reasonable a 
rent as possible for the type of use, its location, and rights granted. 
The rental market for communication sites varies 

[[Page 57061]]
considerably. Also, terms of private lease agreements vary widely, and 
it is difficult to quantify the effect of lease provisions on rental 
value.
    In response to concerns expressed by the comments, BLM has made the 
following changes in the final rule:
    The originally proposed rents in several categories have been 
reduced to reflect information provided by respondents.
    The proposal to base rent for tenants on a percentage of the annual 
gross receipts received from rental of space in the facility has been 
eliminated.
    Current right-of-way holders will be notified of the new rent and 
given instructions for appealing the new rent in accordance with 
existing regulations.
    Schedule rents, and rents determined by appraisal or other methods, 
may be adjusted by the authorized officer if the criteria in section 
2803.1-2(b)(2) apply, e.g., the holder is a nonprofit business, 
provides a public service at reduced or no costs, or would suffer undue 
hardship from imposition of the schedule rent.

2. Format of Schedule

    Several respondents requested that the basis in the proposed rule 
for setting rent for broadcast and nonbroadcast uses, i.e., U.S. Census 
Population for the principal community or communities served, or the 
county population, depending on circumstances and the type of use, be 
reconsidered. Comments suggested a variety of other methods, including 
market ranking services for broadcast radio and television, number of 
subscribers, size of building, the FCC-defined service contour of the 
individual facility, a percentage of the total value of the facility, 
number of transmitters, height of the tower, or a percentage of the 
rental income.
    We considered all suggestions. Most of them would require site-
specific studies, development of specific criteria and instructions for 
each type of use, or result in rental determinations that would be too 
subjective and create potential inconsistencies in application of the 
schedule. Other suggestions would require a system of information 
collection that would make the billing process less efficient. The 
final rule features a common schedule format for all uses based on 
population, because it represents the best way to obtain a reasonable 
estimate of fair market value with a tool that is evenhanded and 
economical to use.
    Several of the respondents opposed using the population of the 
principal communities served for setting the rent for television and 
radio stations. One comment expressed concern that, based on the total 
population of the principal communities served in the Boise, Idaho, 
market, television and radio stations would be paying $16,000 and 
$11,000 respectively, instead of the $6,000 and $4,000 amounts in the 
example included in the proposed rule. The major concern was that the 
original proposal would be difficult to implement and create inequities 
because of differences in identifying the principal communities served 
and calculating their populations. The respondents argued that the 
concept was too vague and that it would be difficult to determine the 
population served using census information. We agree with the comments 
and have dropped the idea of calculating rental payments based solely 
on the U.S. census population of the principal communities served, 
except for small communities as discussed below.
    Television and radio broadcasters preferred that BLM adopt 
industry-recognized market ranking methods: Nielsen Designated Market 
Areas for television and Arbitron Company Metro Area rankings for 
radio.
    For several reasons, the final rule does not incorporate the 
suggestion that the schedule for television and radio uses be based on 
an industry-recognized market ranking system.
    First, radio market rankings are not nationwide, and there are 
significant gaps in coverage. Therefore, other methods must be 
developed to establish rent in those areas not covered by the market 
ranking services.
    Second, the television market ranking system does not measure the 
households or audience reached by the broadcast transmitter. Instead, 
it includes households reached by a combination of microwave technology 
and translators that serve other smaller markets. This inadvertently 
inflates rental payments for those stations that have an extensive 
network of translators that serve communities outside the area normally 
reached by the transmitter. Also, translators on public land themselves 
pay rent based on populations served.
    Third, television market rankings do not include satellite or 
affiliate stations that serve smaller communities within the dominant 
market area (DMA).
    Fourth, having separate market ranking systems for each category of 
use would complicate implementation of the schedule.
    Other respondents questioned using county population for 
nonbroadcast uses, stating that there was little relationship between 
county population and rent for nonbroadcast uses. They also believed 
that in geographically large counties, such as Riverside and San 
Bernardino, California, using county population would result in 
overpayment of rent for uses in more remote, sparsely populated areas 
of the county. One comment suggested that the population considered be 
more narrowly defined and consideration be given to the population of 
the nearest community.
    Several respondents stated that there was no correlation between 
the rent paid for microwave and private mobile radio sites and 
population, and that this would be an inappropriate method for setting 
rent.
    There are various factors that influence rent but that are not 
necessarily related to population. For example, microwave facilities 
provide a system for transporting information from one point to another 
point. They operate on a linear, line-of-sight basis and, in many 
instances, do not serve nearby population areas, and therefore rent may 
not have any relationship to population. However, in those instances 
where the microwave facility is located on a site that serves a nearby 
population area, land rents are more directly correlated to nearby 
population. The same reasoning applies to private mobile radio users.
    The final rule bases scheduled rent on populations of the community 
where facilities are situated, rather than of entire counties or other 
arbitrary political subdivisions containing them. That is, the 
populations upon which the schedules are based are those that in many 
cases are being served by the facilities, or are those of the community 
near or containing the facility (because population is usually causally 
related to land value) or in some cases where the people working at the 
facility live, or all of these. Although the concept may not be 
universally applicable, BLM believes this to be an appropriate basis 
for developing a schedule, especially compared with other options that 
would be more difficult to implement.
    We disagree with comments that there is no correlation between 
population and rent charged for a communication site. We recognize 
there may be no direct relationship between the private communication 
use and population, since the service is not sold. However, market 
information gathered by BLM shows that land rents are generally higher 
for sites near metropolitan areas than for those sites in less 
populated areas.
    Our primary goal has been to develop a schedule that is easy to 
implement and facilitates the calculation of a reasonable rent. As a 
result of the comments, the final rule adopts a 

[[Page 57062]]
formula for calculating the rental based on the population of the 
community nearest the site, served by the site, affected by the site, 
or all of these, depending on the nature of the facility. Some 
facilities affect the environment of or provide employment for a local 
community while providing communication service to a distant 
metropolis, while others serve only the locality where they are 
situated. In calculating rents using the schedules, distant population 
centers served by the facility will not be considered.
    The population base for the site is determined in three ways. The 
first step is to determine whether the facility is situated in or near 
a community listed as a Ranally Metro Area (RMA) as identified in the 
``Rand McNally Commercial Atlas and Marketing Guide, 1995.'' An RMA 
represents Rand McNally's definition of metropolitan areas in the 
United States. There are 452 RMA's. Four hundred and seventeen have a 
population of 50,000 or more. Thirty-five listed RMA's have a 
population near 50,000 and are included as RMA's because they include a 
central city of an official Metropolitan Statistical Area. If the 
community is listed as an RMA, the population of the community as shown 
in the Rand McNally publication will be used to set the scheduled rent. 
RMA's are updated every year, and are more useful than U.S. Census 
reports on cities in providing accurate counts of the population 
affected by, serving, served by, or related to a communication 
facility.
    Second, if the site does not serve a listed RMA, the scheduled rent 
will be based on the most recent Rand McNally Road Atlas population of 
the largest nearby community.
    Third, for sites located in or serving a community of less than 
25,000 people, the rent that will be charged is the minimum rent shown 
on the schedule for the type of facility.
    Consideration was given to using statistical definitions of 
Metropolitan Statistical Areas (MSA), as defined by the Office of 
Management and Budget (OMB Bulletin No. 93-17), for determining the 
population of nearby communities. MSA's are defined in terms of entire 
counties, except in the six New England States where they are defined 
in terms of cities and towns. In many of the Western States the 
counties are very large: Maricopa County, Arizona, and Clark County, 
Nevada, for example. As a result, use of MSA's would result in unfair 
rents for those holders serving a portion of a larger county. 
Therefore, BLM decided not to use this method.
    In response to the public comments, the final rule includes the 
following changes:
    The final rule bases the rental schedule on a ranking of RMA's as 
identified in the Rand McNally Commercial Atlas and Marketing Guide, 
1995.
    The rents for uses located on sites serving RMA's will be based on 
the population of the RMA's served by the site.
    Rents for those uses located on sites not serving an RMA will be 
based on the most recent U.S. census population of the community.
    We made minor changes in the description of ``other communication 
uses'' in response to comments. The description is clarified by 
including other small, low-power devices used to operate, monitor, or 
control remote activities such as wireless telephone or mobile radio 
service to sparsely populated areas, in order more accurately to depict 
the uses covered by the category.

3. Additional Users

    A majority of the comments opposed assessing rent for additional 
users in the building based on a percentage of the gross rent received. 
The proposal was criticized as unfair, not supported by market data, 
exorbitant in view of the proposed base rent, and too difficult and 
costly to implement. Others pointed out that, with few exceptions, 
private landowners do not receive an additional amount from the primary 
lessee for tenants in the building. One respondent suggested that BLM 
provide data to support its position that payment of a percentage of 
gross rent is common in the marketplace.
    Respondents stated that the term ``gross sublease rent'' was not 
clear, and worried that the holder would be assessed a charge for all 
occupants in the facility, customers as well as tenants. There was also 
concern that it would be difficult for holders to report rent received 
accurately, making them vulnerable to charges of underpayment of rent. 
Others argued that, since several BLM State Offices currently charge 
each tenant separately, this provision would reduce total public 
revenues.
    In view of the comments, the final rule no longer charges 25 
percent of the gross rent received from tenants in the facility. We 
agree the provision would be intrusive for most businesses and would be 
difficult to implement. Therefore the original proposal has been 
amended to charge the holder the full schedule rent for the principal 
use of the facility, even if a tenant's use is the principal use, plus 
25 percent of the schedule rent for the other uses, whether of tenants 
or the holder.
    Generally, multiple user facilities located on public lands are 
more valuable than single user facilities, and an additional amount of 
rent should be paid. Ignoring tenant use of the facility when setting 
rent, while allowing the holder nearly exclusive use of the site by no 
longer requiring agency approval for other tenants in the facility, 
prevents recovery of fair market value. Also, the BLM and FS in some 
States authorize tenants in facilities, and charge them rent. 
Dispensing with that practice entirely, as some respondents suggested 
by implication (in arguing against the collection of a percentage of 
actual gross rent), would result in a significant reduction in revenue.
    The BLM's statutory responsibility is to obtain fair market value 
for the use of public lands, and this includes obtaining a rent for 
secondary uses in the facility. Charging secondary users is in the 
public interest, and as a business practice is supported by policies of 
other land managing agencies and companies.
    One comment made the observation that setting the base rent on the 
authorized use without adjusting for other users in the building would 
encourage lower rent users to obtain an authorization and then rent to 
higher rent users. For example, a holder having an authorization for 
internal mobile radio would sublease to a television or radio 
broadcaster, collecting high rent from the sublessee under the schedule 
in the proposed rule and paying low rent to the Government under the 
same schedule. The comment suggested that the rent should be based on 
all of the actual users in the facility, rather than just the holder's 
use.
    As a result of the comment, BLM realized that the existing 
provision in section 2801.1-1, which was not addressed in the proposed 
rule, limits uses of rights-of-way to those ``specified in'' the 
authorization and prevents BLM from basing rent on the principal use of 
the facility in cases where tenants of the holder actually operate the 
primary or higher valued uses. In practice, most BLM authorizations are 
for a ``communication use'' and do not specify a particular type of 
communication use. Therefore, in a technical amendment in the final 
rule, we have removed the reference in section 2801.1-1(b) to purposes 
``specified in'' the authorization.
    The rent for a holder of a facility with tenants will be the 
highest rent the rental schedule assigns to any one of the uses in the 
facility. An additional amount for the other tenants covered by 

[[Page 57063]]
the authorization will be 25 percent of the scheduled rent for each of 
those categories of use. The total rent paid by the holder will be the 
schedule rent for the highest valued use plus 25 percent of the 
schedule rent for each of the other tenant uses in the facility, 
including the holder's use if it is not the highest valued. In some 
cases, the rent paid by the holder under the final rule will be higher 
than the rent that would have been required under the proposed rule, 
depending on the amount of rent actually paid by tenants to the holder. 
However, the total rent will still be less than it would be if the full 
rent for all uses were assessed individually.
    In response to the comments, the final rule makes the following 
changes from the proposed rule:
    Prior written approval from the authorized officer for other 
tenants in the communications facility is no longer required.
    The BLM will adjust the rent assessed the holder to reflect the 
principal occupancy and use in the facility instead of basing it only 
on the holder's use authorized by the existing right-of-way.
    The certified statement of rents collected from sublessees, 
provided for in section 2803.1-2(e)(6) of the proposed rule, has been 
revised (section 2803.1-2(d)(6) in the final rule) to require only a 
listing of tenants, by category of use, in the facility on September 30 
of the current year. Provision for reporting the amount of rent 
collected has been removed. The BLM reserves the right to conduct spot 
audits.
    The base rent for an authorized multiple use facility will be 
charged for the use generating the highest schedule rent.
    The terms ``tenant'' and ``customer'' have been defined to help 
make clear which occupants in the facility would be subject to an 
additional amount of rent under terms of the holder's authorization.
    Existing tenants maintaining a separate authorization will be 
subject to paying their full schedule rent. Applicants for rights-of-
way on land already subject to rights-of-way may obtain separate 
authorizations from BLM. However, they will be subject to paying their 
full scheduled rent, plus appropriate administrative costs. Users are 
encouraged to combine same-site rights-of-way under a single right-of-
way authorization, and the final rule provides a rent reduction 
incentive for such combinations.

4. Use of Appraisals To Set Fair Market Rent

    Several respondents opposed permitting the authorized officer to 
set rent payments based on individual appraisals instead of using the 
schedule. They feared that the agency would seek to rely on appraisals 
instead of uniformly implementing the schedule. One respondent asked 
BLM to provide guidance on when individual appraisals would be needed. 
Two respondents stated that the proposed rule would allow the 
authorized officer to have unfettered discretion to set rental payments 
different from the schedule, and another stated that the proposed rule 
could result in significant abuse. Another comment suggested that BLM 
establish criteria or standards to be applied when the rental schedule 
does not yield fair market rent.
    In response to the comments, section 2803.1-2(e)(4) of the proposed 
rule (section 2803.1-2(d)(7) in the final rule) has been clarified and 
criteria established in the final rule for allowing the authorized 
officer to use appraisals or otherwise deviate from the schedule. Under 
this section, the authorized officer may use appraisals or other means 
if the holder is eligible for a waiver or reduction in rent, if payment 
of the rent will cause undue hardship, if the right-of-way is a cost-
share road or reciprocal right-of-way, if the original right-of-way 
authorization has been or will be issued under a competitive bidding 
process, or if the State Director concurs in a determination made by 
the authorized officer that the expected rent exceeds the schedule rent 
by 5 times, or the communication site serves a population of 1 million 
or more and the expected rent based on comparable leases for the 
communication use is more than $10,000 above the schedule rent. To 
accommodate this change, paragraph 2803.1-2(c)(1)(v) of the existing 
regulation is amended in the final rule to allow BLM to use methods 
other than the schedule in establishing rents for communication uses.

5. Administrative Complexity

    Several respondents stated that the proposed rule would not improve 
processing or reduce costs. One argued that the new procedure would 
increase administrative processing and associated costs. The major 
problems identified included how to categorize uses properly, the 
difficulty of requesting and obtaining information from holders on a 
timely basis to calculate a rental, whether to rely on the accuracy of 
information provided by the holder regarding population served, number 
of subscribers, or listings of tenants; and how to calculate the rent 
accurately during the phase-in period. Some comments stated that audits 
and inspections might be necessary to ensure enforcement, and feared 
that the agencies would not have the resources to manage the changes 
effectively.
    Several comments complained that it takes too long to process an 
application for use of public lands. One comment suggested that we need 
to stop emphasizing the issue of fair market rent and get on to more 
important matters, such as excessive delays and unnecessary 
requirements for processing authorizations for use of Federal lands. 
Others said that Government should not regulate or require rent for 
secondary users, because of the length of time it takes to authorize 
additional users in an existing building. However, one of the main 
purposes of this rule is to streamline the process. This is 
accomplished, for example, by removing appraisals from the process in 
most instances, and removing the requirement for prior written approval 
of tenants. No changes are made in the final rule in response to these 
comments.
    The BLM is committed to improving administration of communication 
site uses and to full implementation of new, streamlined rental 
procedures. Once they are implemented, rental payments will be 
calculated consistently and updated annually to reflect fair market 
value, and both administrative costs to the Government and non-rental 
costs to users should decline, while service to the public improves. At 
the same time, BLM will have more complete information on who is 
authorized to be on public lands and what uses they may make of the 
lands, and will be able to assess rental payments more accurately.
    In response to the public comments, the final rule has been revised 
in an effort to streamline implementation of the schedule. These 
changes include:
    The number of use categories is reduced from 11 to 9.
    Use categories are defined more broadly to include other related 
uses associated with the maintenance and monitoring of the use. For 
example, internal mobile radio is often associated with other uses and, 
therefore, is included in the definition of each category of use.
    Commercial mobile radio service is redefined to include internal 
and private communication used by commercial concerns but not sold for 
a profit. When commercial mobile radio service is the highest valued in 
the facility, the holder will not be assessed a percentage of the 
scheduled rent for 

[[Page 57064]]
internal and private communication uses.
    The rule is amended to provide that occupants owning and operating 
communication equipment in a commercial mobile radio service facility 
for internal use only, and not re-selling their service for a profit, 
are considered customers, not tenants. The base rent assessed (that is, 
the rent paid by the holder for the holder's use and all tenant uses) 
does not include any added rent for customers.
    Facility owners and tenants may decide whether to consolidate their 
authorizations.
    Except as otherwise provided in Section 504(g) of FLPMA, the 
requirement that the holder obtain written consent from the authorized 
officer before allowing other parties to use the facility is removed.
    The final rule allows phase-in of new rental payments if the holder 
shows that the increase will exceed the previous year's rental by 
$1,000 or more.
    The information collection burdens placed on users in the original 
BLM proposal are drastically reduced. For example, the final rule 
eliminates the requirements that cable television users provide the 
number of basic subscribers, that broadcasters provide a 1 millivolt 
contour map or a list of communities served, and that holders account 
to BLM for all rent actually received from sublessees.
    Differences in the methods used to determine rent for each category 
of use are minimized.
    New applicants are encouraged to co-locate in existing facilities 
in order to reduce surface disturbances for new roads and buildings and 
avoid the proliferation of buildings and towers.

6. Phase-in

    The proposed rule included provisions for reducing potential 
impacts of large increases in rent. As proposed, increases in the base 
rent of more than $1,000, or 20 percent of the current rent, whichever 
is greater, were to be phased in over a 5-year period. Additional rent 
from tenants based on a percent of the gross rent was proposed to be 
set at 15 percent during the first 5 years and 25 percent thereafter.
    Many of the respondents stated that the proposed procedure phasing 
in increases in the base rent was reasonable. One person argued that 
the 5-year phase-in was too generous, and another wondered why the 
agency should provide a financial break for users who have not paid 
fair market value for many years.
    In response to general suggestions that the rental determination 
process be simplified, we have changed the proposed phase-in procedure.
    The final rule eliminates the dual standard test to determine 
eligibility for phase-in of increases in rent. Instead, the final rule 
requires that any increase of more than $1,000 or more will be phased 
in over a five-year period. The original proposal would have required 
the agency to make two separate calculations: determine if the new rent 
exceeds the current rent by (1) $1,000 or (2) 20 percent of the current 
rent. We have simplified the process by only requiring a determination 
of whether the new rent exceeds the old by more than $1,000.
    The phase-in adjustment works in this manner: if the current base 
rent is $700 and the new rent based on the schedule will be $2,700, the 
first year's rent will be $1,700, and the rent for years 2 through 5 
will be increased $250 per year, plus the inflation adjustment increase 
or decrease. Assuming a 2 percent annual increase in the CPI-U during 
the 5-year phase-in period, the base rents will be calculated as 
follows:

Year 1 $700+$1,000=$1,700
Year 2 ($1,700+$250) x 1.02=$1,989
Year 3 ($1,989+$250) x 1.02=$2,283.78
Year 4 ($2,283.78+$250) x 1.02=$2,584.46
Year 5 ($2,584.46+$250) x 1.02=$2,891.15
Year 6 ($2,891.15 x 1.02)=$2,948.97

7. Updating Rental Payments

    Under the current regulations, rental payments are based on 
appraisals, and the appraisals are supposed to be updated every 5 
years. Because of delays in performing appraisals, increases in rent 
have often been substantial, resulting in complaints and more appeals. 
All too often, rental assessments had not been updated for 10 to 15 
years. Legislated limitations on agency authority to increase rents 
have made the problem worse.
    The proposed rule included provisions to update payments annually 
based on the U.S. Department of Labor Consumer Price Index for All 
Urban Consumers (CPI-U), U.S. City Average, published in July of each 
year, in order to avoid larger increases in rent and the possible 
economic disruptions that would be caused by longer update intervals.
    Two respondents expressed concern over when the agency would re-
evaluate the schedule. The proposed rule provided that the schedule 
would be re-evaluated and if necessary updated periodically. One 
respondent asked what was meant by ``periodically.'' The other comment 
suggested that the rental schedule should be re-evaluated every 5 
years. The comment noted that the rent for communication uses has 
surged over the last several years, and that unless there was a 
mechanism to update market information, rents under the schedule would 
fall below fair market value.
    In response to the comments, we have included in section 2803.1-
2(d)(2) of the final rule a provision that the rental schedule will be 
reviewed for possible update no later than 10 years after it becomes 
effective, and at least every 10 years thereafter, to ensure that the 
schedule reflects a reasonable estimate of fair market value. Also, 
individual rights-of-way may be reviewed after the first 10 years, and 
no more often than once every 5 years thereafter, on holder request, to 
determine whether rents are appropriate.
    Many of the respondents generally supported use of the Consumer 
Price Index-Urban (CPI-U) to index the rental payments. One respondent 
stated that the CPI-U may not relate to local market conditions. Others 
suggested the CPI-U be limited so that increases would not be too 
dramatic. One suggested that increases be limited to no more than 5 
percent, and others suggested they be limited to 1 percentage point 
below the annual level of inflation.
    In response to these comments, the final rule limits subsequent 
increases based on changes in the consumer price index to 5 percent. We 
believe this limitation, along with the notification and appeal process 
and hardship provisions contained in section 2803.1-2(b)(2)(iv), should 
reduce the potential for overcharging. One of the inherent problems 
with schedules is that, over the long term, they may not adequately 
reflect fair market rent. Market rents in specific areas may be more or 
less than rents set by a schedule. Periodic reviews of the schedule 
itself will help ensure that the rents do not become too low.
    One respondent suggested that the example included in the proposed 
rule was incorrect. The proposed rule provided that the first year's 
base rent would be adjusted to reflect any increase in the consumer 
price index. We agree with the comment. Any increase in the Consumer 
Price Index (CPI-U) not exceeding 5 percent for the year will be 
applied for the first time during the second year.
    Along with updating rents based on the CPI-U, the RMA rankings will 
be updated annually to reflect changes in estimated population. Of 
course, this may also result in rent adjustments. 

[[Page 57065]]


8. Comments Pertaining to Use Categories

Television and FM Radio Broadcast
    In response to comments made by the Arizona Broadcasters 
Association (ABA), BLM met with the Administrative Assistant, City of 
Phoenix, Parks and Recreation, on October 12, 1994. The purpose of the 
meeting was to gather information regarding rental payments paid on 
South Mountain, a major communications site within the City of Phoenix, 
and administrative procedures used by the city. The ABA suggested that 
the proposed rents for Phoenix and Tucson were too high and that 
consideration should be given to recently negotiated rents charged by 
the Phoenix City Parks Department on South Mountain.
    The information obtained was useful in preparing the final rule. 
The City of Phoenix grants a license to each user, including tenants 
within the facilities. The facility owner and tenants pay individual 
rental payments. The BLM final rule establishes a different process. 
The facility owner is allowed to manage the facility without any 
interference from the agency. BLM will no longer require prior written 
approval to allow other parties to use the facility and tenants will be 
encouraged to relinquish their separate authorization, thereby reducing 
agency billing costs and user administrative costs. Although the 
schedule rent for the primary use of the facility is slightly higher, 
the additional rent assessed for tenants will be less. Overall, total 
revenues generated by the City of Phoenix for multiple user facilities 
will be greater than those obtained on a similar BLM facility because 
of greater management involvement by the city.
    The BLM also considered examples of rent levels in other typical 
locations to arrive at the final schedule rents.
    Land rents for television facilities in similar markets vary 
considerably. There is also a difference between rents paid for 
communication sites based on Ranally Metro Area (RMA) populations and 
rents based on Nielsen market rankings. In response to the comments, 
the final rule lowers the rent for television and FM radio stations 
serving areas with an RMA population of 500,000 to 999,999 from $16,000 
for television and $12,000 for FM radio to $14,000 and $10,000 
respectively.
    The proposed rule included FM (frequency modulation) radio only. 
Several respondents wondered if AM (amplitude modulation) stations were 
also included. The rule has been amended to include BLM authorizations 
for the location of AM stations on public lands.
    One respondent asked how an AM station would be handled if it is in 
an FM broadcast facility. AM and FM radio stations located in the same 
facility will be considered two radio stations in determining rent, 
with one considered the primary holder and the other as a tenant, even 
if co-owned.
    In response to the public comments, the following changes have been 
included in the final regulation:
     AM broadcast radio stations have been included in the 
schedule. Rents will be based on 70 percent of the FM scheduled rental 
payment in recognition of the lower profit generally derived from AM 
broadcasting. Co-located AM and FM stations will pay the full FM radio 
rent, plus 25 percent of the AM rent.
     The scheduled rent for television and radio stations 
serving RMA's with a population of 1,000,000 to 2,499,999 is reduced in 
the notice published today elsewhere in this issue of the Federal 
Register. Typical cities within this population range are Phoenix, AZ, 
San Diego, CA, and Portland, OR.
Broadcast Translator and Low Power Television (LPTV)
    Broadcast translators are low-power devices that transmit 
television and radio signals originated elsewhere to remote areas, and 
LPTV serves the same function, but may originate programming on a 
limited basis.
    Several respondents suggested that the BLM final rule should adopt 
the fee schedule for broadcast translator stations previously approved 
by the FS. The FS regional offices had adopted a schedule supported by 
the National Translator Association.
    The BLM proposed rule was different from the FS rule in two 
respects. First, it included LPTV, an FCC-licensed facility that has 
limited authority to originate programming, as well as broadcast 
translators. Second, it set a schedule to be applied to all markets, 
regardless of population, whereas the FS schedule was limited to 
communities having a population of less than 60,000. The scheduled 
rents for population ranges less than 50,000 were essentially the same 
as those adopted by the FS.
    Two FM translator operators argued that the proposed rental payment 
schedule would have an enormous impact on holders and result in an 
elimination or reduction of service. FCC regulations effective June 1, 
1994, prohibit television stations from supporting the operation or 
maintenance of a translator either directly or indirectly. The new FCC 
rules allow the owners to solicit contributions from listeners for the 
operation and maintenance of the FM translator. The comments stated 
that the recent changes in FCC regulations, along with the proposed 
increase in rents imposed by the BLM, will eliminate or reduce service 
in some areas.
    In response to the comments, we have substantially revised the 
schedule for broadcast translator and LPTV in the final rule. Because 
of insufficient market information and the concerns expressed in the 
comments, the schedule will be applied only to the 4 lowest population 
groups. Rental for holders located on sites serving a community of 
200,000 population or more will be based on other methods, including 
separate appraisals.
    Another respondent suggested that a distinction in the rent be made 
for the difference between a translator and LPTV. LPTV stations are 
essentially translators that are permitted by the FCC to originate 
programming. They cannot interfere with full-power stations and are 
limited to 10 watts VHF and 1,000 watts UHF. Both LPTV and translators 
serve remote areas, and there is little information to suggest that 
there should be a difference in land rent between the two uses. 
Therefore, BLM has kept LPTV stations and translators in the same 
category on the schedule.
    One respondent suggested that the term ``Rebroadcast Device'' be 
clarified, because microwave relays and repeaters are also rebroadcast 
devices. Because of the potential confusion, we have changed the name 
of the category to ``Broadcast Translators and Low Power Television'' 
in the final rule.
Cable Television
    Cable television uses on public lands include facilities for 
receiving and transmitting television programming over a wired or 
wireless network.
    Respondents raised concerns about basing the schedule on the total 
number of basic subscribers. One suggested that there should be a 
provision for increasing the rent as the population served increases. 
Another suggested that requiring the holder to report the number of 
basic subscribers would exclude those that subscribe to other program 
packages that include basic programming. Another suggested that the 
standard for determining rent should be based on the actual number of 
households subscribing to the cable television service at a given time.
    The proposed schedule would have imposed annual reporting 
requirements on cable television authorization holders. The comments 
indicated potential confusion over the reporting of 

[[Page 57066]]
the number of basic subscribers. Also, it is administratively more 
complicated for BLM to set different information requirements for each 
category of use when preparing a billing. As a result the format of the 
cable television schedule was amended in the final rule to reflect the 
population of areas served by the cable television station. Cable 
television holders serving a metropolitan area should pay rents similar 
to those paid by other broadcast users in the same market, based on the 
cost to the public and the impact on the land of similar uses, rather 
than market shares enjoyed by the holder.
    One respondent disagreed with the proposed $2,400 rent for a cable 
user having 2,500 or more subscribers. The respondent stated that in 
larger markets the proposed rent was too low. He concluded the rents 
should be similar to rents paid by broadcasters on sites serving larger 
metropolitan areas.
    A review of market information revealed that most of the data 
available to BLM came from leases in smaller, rural areas. Since in the 
final rule the schedule format has been changed to population instead 
of number of basic subscribers as in the proposed rule, and because we 
have limited comparable lease data for cable use in larger markets, the 
cable schedule is limited to those locations serving less than 200,000 
population. In larger population markets, rent will be established 
through appraisals or other methods.
Commercial Mobile Radio Service (CMRS)
    CMRS businesses provide mobile radio service to individual 
customers by operating interconnected network of transmitters linking 
contiguous coverage areas, and ranging in power from 10 to 1000 watts.
    As to CMRS, the BLM proposal included: (1) Rents based on the 
population of the largest county predominantly served by the 
transmitter, (2) a separate category for facility managers (building 
owners), and (3) adjusting rents in most levels to reflect additional 
analysis.
    Right-of-way holders providing commercial mobile radio service were 
strongly opposed to the schedule. Their comments stated that the 
schedule was unfair and the rents too high, and that many small 
businesses would be driven out of the market. They objected to using 
county population as a basis for setting rent, and were opposed to 
paying 25 percent of the gross rents received from tenants in the 
building. Several likened the revenue sharing proposal to a tax. Others 
were dismayed at the prospect of the Government being a partner in 
their businesses. Their primary argument was that revenue sharing with 
the landowner is not a widespread practice. One comment stated that 
since CMRS and facility manager uses were so similar they should be 
combined into one category.
    In response to the proposed rule, industry groups submitted 
extensive market data to support lower schedule rents. Their comments 
provided lease data, appraisals, and references to lease information, 
and concluded that there was very little difference in the land rent 
paid by common carrier and industrial microwave users. Further, they 
asserted that the difference between microwave (all types) and mobile 
radio-commercial communications was less than 4 percent.
    Several respondents objected to the proposed rents in Maricopa 
County, Arizona as being too high. One comment provided information 
from a real estate listing for a 10,000 square foot undeveloped site on 
Shaw Butte, 10 miles north of downtown Phoenix. The site was offered at 
$350 per month rent or $4,200 per year. On Usery Mountain east of 
Phoenix undeveloped parcels are available for $1,200 per month. The 
comment argued that the listed rent on Usery Mountain was too high. The 
comment suggested that the fair market rent for sites serving the 
Phoenix metropolitan area should be $9,000 per year or 25 percent of 
gross rent as it was defined in the proposed rule, whichever is 
greater.
    Another comment suggested BLM take into consideration rents paid by 
local users on South Mountain, a mountain managed by the City of 
Phoenix. The comment reported that CMRS providers pay $5,400 per year 
on South Mountain, in contrast to the $12,000 proposed in the schedule.
    The rent paid to the City of Phoenix on South Mountain was set by 
agreement dated February 7, 1992. It is our understanding that the City 
of Phoenix Parks and Recreation Board set a rent of $750 per month, or 
$9,000 per year, for building owners and $450 per month, or $5,400 per 
year, for commercial tenants.
    The BLM final schedule sets the rent for CMRS users serving the 
Phoenix RMA at $8,000 per year. The rent for CMRS tenants included 
under the building owner's authorization is based on 25 percent of the 
scheduled rent, or $2,000 per year.
    A number of other respondents also provided market data. One 
suggested that comparable leases for a CMRS user in Bonneville County, 
Idaho, were $1,000, not $1,500 as proposed. This information supports 
the scheduled rent of $1,200 for a site serving Idaho Falls.
    A user in South Dakota objected to the minimum rents of $600 per 
year proposed in rural areas and suggested that a minimum rent of $300 
per year would be more equitable. The respondent indicated that on 16 
sites in South Dakota rents vary from $50 $300 per year. Market 
research by BLM showed that rents at these levels would be too low, and 
the comment is not adopted in the final schedules. However, rents can 
be adjusted on a case-by-case basis under the final rule, and thus 
hardships proven to be caused by the schedule rent can be mitigated.
    Comments stated that the commercial mobile radio service (CMRS) 
category should have included microwave communication equipment. The 
comment stated that CMRS facilities are dependent on microwave 
communication equipment similar to cellular telephone facilities. We 
agree and have added microwave communications link equipment to the 
CMRS definition.
    The definition of CMRS contained in the proposed rule included two-
way voice and paging services such as community repeaters, trunked 
radio (specialized mobile radio), two-way radio dispatch, and public 
switched network (telephone/data) interconnect service. It did not 
include cellular telephone or personal communication service (PCS). The 
final rule maintains the distinction between the two wireless forms of 
communication because market information indicates that cellular 
telephone companies pay more for sites than CMRS users.
    Based on the comments, the following changes were included in the 
final rule, and in the notice accompanying the final rule containing 
the rental schedule:
    The proposed rental payments have been adjusted to coincide more 
closely with rental payments for cellular telephone in larger markets. 
In less populated areas, rents for CMRS use are generally less than 
rents for cellular telephone, and this relationship has been maintained 
in the final rule.
    The definition of CMRS has been broadened to include facility 
managers and ancillary microwave link equipment.
    The definition was also broadened to include microwave link 
equipment.
    Rents in 6 of the 9 population categories were reduced.
Facility Manager
    The proposed rule included a separate category for facility 
managers. Because many facility managers do not sell, 

[[Page 57067]]
operate, or maintain communication systems or equipment, BLM considered 
them separate and distinct from CMRS providers.
    The comments received in response to the proposed rule contended 
that the proposed rental schedule was discriminatory and inequitable. 
The respondents stated that since the facility manager derives income 
only from the rental of space in the building, the proposed schedule 
would unfairly reduce their gross income by charging a percentage of 
all revenues over and above the base rent. By contrast, rents assessed 
holders that provide CMRS are not adjusted to reflect their revenues 
from services such as dispatch, cellular subscriptions, or broadcast 
advertising.
    There were questions concerning the similarity between CMRS and 
that provided by the facility manager, and possible confusion in 
applying the schedule. Others expressed concern that we may have 
inadvertently created a loophole by setting the rent for the facility 
manager lower than that for CMRS. One comment suggested that the 
category be eliminated and incorporated into the CMRS. Another 
expressed support for the category of use, but argued that it was 
unfair for the Government to take 25 percent of their revenue since 
their only source of revenue was from the rental of space in the 
facility.
    BLM agrees there are many similarities between the CMRS category 
and facility manager. To eliminate potential inequities and confusion 
in applying the schedule, the facility manager category has been 
removed and included under the CMRS category for purposes of setting 
the base rent on the empty facility.
Cellular Telephone
    Cellular telephone is a means of providing mobile telephone service 
to subscribers. Current cellular telephone systems are based on analog 
signal transmission. The next generation of cellular telephones will be 
based on digital transmission and is sometimes referred to as personal 
communication service (PCS).
    Two comments suggested that the cellular telephone category should 
include systems providing similar wireless telecommunications services 
to the public, such as specialized mobile radio. They pointed out that 
Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 
directed that similar wireless telecommunications services should be 
regulated consistently.
    The FCC has made recent regulatory changes to establish a level 
playing field for competitive mobile communications market. The Budget 
Act outlined three criteria for determining commercial mobile radio 
service: the service must be provided for profit, it must be 
interconnected to the public switched network, and it must be available 
to a substantial portion of the public. Under FCC regulations, mobile 
services not included under the CMRS definition are classified as 
private mobile radio services (PMRS).
    The suggestion in the comments was not adopted in the final rule. 
Other wireless communication users were not included under cellular 
telephone. In large metropolitan markets cellular telephone companies 
and commercial mobile radio providers often pay similar rents for 
privately owned space. In small to medium size markets, mobile radio 
service providers pay less than cellular telephone companies. 
Therefore, for purposes of assessing rent, separate schedules are 
included in the notice accompanying the final rule.
    Two comments objected to including PCS, a new digital wireless 
telephone technology, in the schedule with cellular telephone. One 
comment suggested that this category be dropped until the technology is 
more fully developed. The other comment explained that the PCS 
licensees network will be far more concentrated and require more sites 
than a cellular network. The comment warned that it would be a serious 
mistake to require PCS licensees to pay the same rental as a cellular 
carrier.
    PCS is similar to cellular telephone services. The major 
differences are that it is low power and provides coverage to a smaller 
area. The service is not yet available. In December 1994, the FCC began 
auctioning licenses, and it is likely that PCS service will be 
available in some markets as early as mid-1996.
    Therefore, we have removed PCS from the cellular telephone 
definition. Once we know what the site requirements will be for PCS 
facilities, we will consider amending the regulation to include them. 
However, we have broadened the definition of cellular telephone to 
include other technologies in the event PCS facilities prove to be 
similar. It is our intent to apply the schedule to similar, emerging 
technologies when practical. Meanwhile, appraisals or other methods 
will be used to set rents for PCS and other advanced technologies.
    Another respondent suggested establishing a separate rent category 
for microcell facilities. The comment letter explained that these 
facilities efficiently serve small, distinct communities. In contrast 
to conventional cellular facilities that operate at 10 watts and use 
larger antenna, the microcell antenna is much smaller, usually mounted 
on a pole, and the equipment operates at 5 watts or less. It also 
suggested that the rent for these facilities be $2,500 per year. We 
have not adopted the suggestion because it cannot be incorporated in 
the final rule without further opportunity for public comment.
    In response to the comments, we have made the following changes:
    We removed personal communication service use from the definition 
of cellular telephone.
    Rental payments in the top population levels were adjusted to 
coincide with rents paid by CMRS users.
    Adjustments were made in the proposed rent to reflect more recent 
market information.
Private Mobile Radio
    The definition of ``Private Mobile Communications'' was 
inadvertently omitted from the proposed rule, but this use was 
discussed in the preamble and included in the proposed rent schedule. 
In the final rule, this category of use has been renamed Private Mobile 
Radio (PMR), a discussion of it has been inserted as section 2803.1-
2(e)(1)(vi), and the remaining paragraphs have been redesignated. 
Holders in this category are subject to a rent if they own and operate 
the facility for their own use. If they are located in an authorized 
facility, they are considered customers and no additional amount will 
be assessed for their use.
    One comment pointed out that the proposed rule did not make it 
clear which use is primary for holders using both microwave and private 
mobile communications. Many microwave sites are also used for private 
mobile communications. To eliminate possible confusion, the comment 
suggested that when microwave and mobile facilities are at the same 
site, the primary use should be defined as private mobile if the 
microwave ends at the site and is primarily for the control of the 
mobile facility.
    We agree. If the microwave and mobile radio are ancillary to each 
other, the holder should not be subject to paying separate rents. To 
correct the potential problem, we have broadened the definition of PMR 
to include other equipment for the control of the facility, such as 
private local radio dispatch, private paging services, and ancillary 
microwave communications equipment for facility control. 

[[Page 57068]]

Microwave
    One comment observed that there is little difference in the 
schedule rent for private or common carrier microwave facilities and 
suggested that the two categories be combined. We agree with the 
comment and have consolidated the two categories in an effort to 
simplify implementation.
Other Communication Uses
    The rental schedule for ``other communication uses'' was intended 
to include small, unobtrusive, low-power uses that monitor or provide 
communication service to a small number of customers. The definition of 
``other communication uses'' has been clarified to include low-power 
monitoring or controlling devices. The definition explicitly excludes 
communication devices and related facilities appurtenant to either a 
BLM oil and gas lease or pipeline right-of-way authorized under the 
Mineral Leasing Act.
    Holders in this category are subject to a rent if they own and 
operate the facility for their own use. If they are located in a 
facility authorized to another holder, they are considered customers 
and no additional amount will be assessed for their use.
    The definition of other communication uses has been rewritten to 
include FCC-licensed private communication uses such as amateur radio, 
personal/private receive-only antennas, natural resource and 
environmental monitoring equipment, and other low power monitoring or 
controlling devices, excluding communication devices and related 
facilities appurtenant to either a BLM oil and gas lease or pipeline 
right-of-way authorized pursuant to the Mineral Leasing Act of 1920. 
Passive reflector has been removed from the schedule--the use is not 
common on the public lands, and appropriate rent will be determined 
based on appraisals or other methods.
    The rental schedule has been changed to correct a misprint for 
amateur radio and remove the local exchange carrier use from this 
category. The amateur radio use rental should be $75 instead of $.75.
    The local exchange carrier category of use has been removed from 
other uses in the final rule, because of a misunderstanding regarding 
the appropriate name for this service. The term ``local exchange 
carrier'' is generally understood to mean the local telephone company. 
It was our intent that we include basic exchange telephone radio 
service (BETRS), a microwave radio service that provides telephone 
service to remote areas. We were unable to get sufficient information 
to establish a schedule rent for this use, and appropriate rent will be 
determined based on appraisals or other methods.

Impact of Schedule on Existing Rental Payments

    Several selected authorizations were reviewed in Idaho, New Mexico, 
Arizona, and California to assess the potential impact of the final 
rule on existing rental payments.
    Impacts on current rents varied because current rents vary 
considerably. In some areas communication rental payments have been low 
historically or have not been updated for many years. In other areas, 
rental payments that have been updated recently by site-specific 
appraisals are higher than those in the final rule. Complicating this 
analysis are assumptions about the number of tenants who will 
relinquish their authorization and no longer pay full rent, and 
questions about how to determine the number of tenants in existing 
buildings. As a consequence, it is difficult to draw any reliable 
conclusions as to what the impact may be on total revenues.
    There are situations where rental payments based on a schedule may 
be substantially lower than the current rent. When this occurs the 
authorized officer may use provisions of section 2803.1-2(c)(1)(iv).

Rental Determination

    Rental payments for communication sites will be calculated as 
follows:
    1. The authorized officer requests that the holder provide a 
certified statement by October 15 of each year containing a list of 
tenants, by category of use, in the facility on September 30 of that 
year.
    2. Using information submitted by the holder, the schedule will be 
used to determine the highest schedule use.
    If the highest schedule rent is a ``tenant'' rent, the ``tenant'' 
rent becomes the base rent and the building owner's schedule rent is 
used as a tenant rent for calculating the total rent for the facility.
    Tenants located in a CMRS facility who provide internal and private 
communication services are considered customers, not tenants, and 
therefore no additional amount is assessed for their use. This is only 
applicable to CMRS providers holding a right-of-way authorization.
    3. The base rent will be calculated from the schedule based on the 
category of use and the population of the community served by the site, 
or determined by appraisal or other methods, such as negotiating rents 
for new sites, extrapolating from current rent paid, or using 
comparable lease information provided by the holder, in appropriate 
circumstances.
    4. To the base rent, add 25 percent of the schedule rent applicable 
to each tenant located in the facility on September 30 of that year, to 
get the total rent.
    5. Compare the total rent to existing rent and determine whether 
the holder is eligible for phase-in. If eligible, calculate the first 
year's rent.
    6. Compare total estimated rent against expected or current rent to 
determine whether the rent should be exempted from the schedule.
    7. If the rent as calculated from the schedule is not applicable, 
it will be set following an appraisal or using other methods as 
determined by the authorized officer.
    The following examples show how schedule rents are calculated:

    Example 1: A communications facility serving an RMA population 
of 200,000, with CMRS provider (building owner), one TV broadcaster, 
two FM broadcasters, one cellular telephone, and two private mobile 
radio users.
    Base rent = $6,000 (TV broadcast is the highest value use in the 
facility) + $750 (25% CMRS provider (building owner)), + $2,000 (25% 
of two FM broadcasters) + $1,000 (25% cellular telephone + $0.00 (no 
charge for PMRS)) = Total first year rent for the facility: $9,750.
    Example 2: A microwave facility located in a remote, sparsely 
populated community with no tenants in the facility would pay a 
first year rent of $1,500.
    Example 3: A television station located on a site serving a RMA 
listed community with a population of 60,000 with two tenants; a FM 
radio station, and a paging company. Current rent is $1,000.
    Base rent = $3,000 (television station is highest schedule rent) 
+ $500 (25% of schedule rent for FM station) + $300 (25% of $1,200 
since paging is covered under CMRS) = $3,800. $3,800 (schedule 
rent)-$1,000 (current rent) = $2,800. First year's rent is $1,560 
($1,000 + one fifth of $2,800).

Implementation Plan

    The BLM plans the following to implement the final rule:
    1. The BLM and FS will adopt a format for communication use 
authorizations to be used by both agencies. The new authorization will 
allow the holder to have tenants in the facility, eliminating the 
requirement for prior written consent of the agency.
    2. A notice will be sent to all authorized communication site 
users. This notice will advise them of regulatory changes affecting 
assessment of communication site rental payments, 

[[Page 57069]]
and the option to convert to a new authorization. Holders will have 60 
days to respond to the authorized officer indicating their intention.
    3. Tenants in a facility who have a separate BLM authorization will 
be given an option to retain their separate authorization, or 
relinquish their authorization and be included in the facility owner's 
authorization. Tenants electing to maintain their existing 
authorization will be billed the full rental in accordance with the 
schedule.
    4. Holders will be notified by December 1 each year what their rent 
would be for the next calendar year.

Procedural Matters

    The principal author of this final rule is David Cavanaugh of the 
Special Area/Land Tenure Team, assisted by the Regulatory Management 
Team, BLM. Other persons who have made significant contributions 
include Ellen Heath and Mark Scheibel of the FS, Ron Appel, Dan Nowell, 
Larry Shiflet, and Bil Weigand of BLM.
    It is hereby determined that this final rule does not constitute a 
major Federal action significantly affecting the quality of the human 
environment, and that no detailed statement pursuant to Section 
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 
4332(2)(C)) is required. The Bureau of Land Management has determined 
that this rule is categorically excluded from further environmental 
review pursuant to 516 Departmental Manual (DM), Chapter 2, Appendix 1, 
Item 1.10, being a regulation of an administrative, financial, legal, 
technical, or procedural nature, and that the rule will not 
significantly affect the 10 criteria for exceptions listed in 516 DM 2, 
Appendix 2. Pursuant to the Council on Environmental Quality 
regulations (40 CFR 1508.4) and environmental policies and procedures 
of the Department of the Interior, ``categorical exclusions'' means a 
category of actions which do not individually or cumulatively have a 
significant effect on the human environment and which have been found 
to have no such effect in procedures adopted by a Federal agency and 
for which neither an environmental assessment nor an environmental 
impact statement is required.
    This rule has been reviewed under Executive Order 12866. The BLM 
expects the rule will result in savings estimated at $3,000,000 per 
rent cycle. These savings will result primarily from a significant 
reduction in the number of communication site appraisal reports that 
will have to be prepared and reviewed. Under current policy rents for 
communication sites are established based upon appraisals, which are to 
be updated every five years. Through the establishment of rental 
schedules applicable to categories of communications users, the final 
rule will eliminate the need for individual appraisal reports for most 
communication site rights-of-way. The BLM estimates appraisals of this 
type to cost approximately $2,000 each. With more than 1,500 
communication site rights-of-way, the savings for each cycle of rent is 
estimated to be more than $3,000,000.
    The BLM expects the rule to bring annual rental payment charged 
holders to fair market value as required by statute. The current rental 
payments for most current holders have not been reviewed or updated in 
the last five years, with many not adjusted for 10-15 years. The 
payments that would be placed in effect by this final rule would bring 
existing rental charges for communication holders on public lands more 
into line with those who lease land from private landowners. Revenues 
are expected to initially increase modestly to $2,000,000 annually and 
keep pace with inflation. Increases may be greater depending on the 
number of tenants in the building that would be assessed a rent under 
the schedule. At this time we are unable to project the impact of 
charging holders for tenants since we currently have no data on tenants 
in authorized facilities.
    The Department has determined under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) that the rule will not have a significant 
economic impact on a substantial number of small entities. The final 
rule, with its fee schedule, affects only that segment of the 
communications industry operating on the public lands. There are 57 FM 
radio broadcast sites, 26 television broadcasting facilities, and 
approximately 3,200 other permits in effect on these lands. Available 
records do not indicate how many of these permits are held by small 
entities. The phase-in of annual fees proposed in this rule will allow 
any small entities that may be affected to adjust to the new fees over 
a period of time and thereby minimize the risk of adverse impact due to 
the magnitude of some fee increases under the rule.
    Because the rule will result in no taking of private property and 
no impairment of property rights, the Department certifies that this 
rule does not represent a governmental action capable of interference 
with constitutionally protected property rights, as required by 
Executive Order 12630.
    The Department has certified to the Office of Management and Budget 
that these regulations meet the applicable standards provided in 
Sections 2(a) and 2(b)(2) of Executive Order 12778.
    The information collection requirements contained in this rule have 
been approved by the Office of Management and Budget under 44 U.S.C. 
3501 et seq. and assigned clearance numbers 1004-0102 and 1004-0107, 
with the exception of the annual collection of information concerning 
tenants and tenants' category of use from right-of-way holders.
    In compliance with 5 CFR 1320.8(d), BLM is required to provide 60-
day notice in the Federal Register concerning a proposed collection of 
information to solicit comments on (a) whether the proposed collection 
of information is necessary for the proper performance of the functions 
of the agency, including whether the information will have practical 
utility; (b) the accuracy of the agency's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used; (c) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (d) ways 
to minimize the burden of the collection of information on those who 
are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology. Accordingly, none of the 
information proposed to be collected as described below will be 
required until comments have been received and analyzed and approval 
has been obtained from OMB under 44 U.S.C. 3501 et seq. and a clearance 
number assigned.
    In this rule, BLM is establishing procedures for setting rent for 
communication uses located on lands administered by BLM as required by 
FLPMA. Generally, multiple-user facilities located on public lands 
involve tenants, and under this rule, the holder will be assessed an 
additional amount for certain categories of tenants. Ignoring tenant 
use of the facility when setting rent, while allowing the holder nearly 
exclusive use of the site, prevents recovery of fair market value. 
Thus, BLM's statutory responsibility to obtain fair market value for 
the use of public lands includes obtaining a rent for tenant uses in 
the facility.
    In response to comments on the proposed rule, BLM changed the 
original proposal (at Sec. 2803.1-2(d)(6) in the final rule) from 
charging 25 percent of the gross rent received from tenants 

[[Page 57070]]
in the facility because it would be too intrusive and difficult to 
implement. The final rule has been amended to charge the holder of the 
right-of-way the full schedule rent for the highest valued use in the 
facility, plus 25 percent of the schedule rent for the other uses. To 
implement this provision, BLM must obtain from the holder a listing of 
tenants by category of use on an annual basis. The information 
collected will allow BLM to calculate the rent for the communications 
facility. The information is mandatory to obtain a benefit, use of 
public lands for communications facilities.
    The public reporting burden for this collection of information is 
estimated to average one hour per response. The respondents are holders 
of right-of-way grants or temporary use permits. The estimated number 
of respondents is 1,500. The estimated number of responses per 
respondent is one per year. The estimated total annual burden on 
respondents is 1,500 hours.
    Elsewhere in this issue of the Federal Register, BLM is publishing 
a separate notice soliciting comments on this proposed information 
collection.

List of Subjects

43 CFR Part 2800

    Communications, Electric power, Highways and roads, Pipelines, 
Public lands--rights-of-way, Reporting and recordkeeping requirements.

43 CFR Part 2810

    Public lands--rights-of-way, Reporting and recordkeeping 
requirements.

43 CFR Part 2880

    Public lands--rights-of-way, Reporting and recordkeeping 
requirements.

    Dated: October 2, 1995.
Sylvia V. Baca,
Acting Assistant Secretary of the Interior.

    Under the authority of Sections 303, 310, and 501-511 of the 
Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733, 1740, 
and 1760-1771), and for the reasons stated in the preamble, 43 CFR 
Parts 2800, 2810, and 2880 are amended as follows:

PART 2800--[AMENDED]

    1. The Note at the beginning of Group 2800 is removed.
    2. The authority citation for part 2800 continues to read as 
follows:

    Authority: 43 U.S.C. 1733, 1740, and 1760-1771.

Subpart 2800--Rights-of-Way; General

    3. Section 2800.0-5 is amended by revising paragraph (j) and adding 
paragraphs (aa) through (cc) to read as follows:


Sec. 2800.0-5  Definitions.

* * * * *
    (j) Facility means an improvement constructed or to be constructed 
or used within a right-of-way pursuant to a right-of-way grant. For 
purposes of communication site rights-of-way, facility means the 
building, tower, and/or other related incidental improvements 
authorized under terms of the right-of-way grant.
* * * * *
    (aa) Base rent means the amount required to be paid by the holder 
of a right-of-way on public lands for the communication use with the 
highest assigned schedule rent in the facility, in accordance with 
terms of the right-of-way grant.
    (bb) Tenant means an occupant who rents space in a facility and 
operates communication equipment in the facility to resell the 
communication service to others for a profit. For purposes of 
calculating rent, the term ``tenant'' does not include private mobile 
radio or those uses included in the category of Other Communication 
Uses.
    (cc) Customer means a person who is paying the facility owner or 
tenant for communication services, and is not reselling communication 
services to others. Persons or entities benefiting from private or 
internal communication uses located in a CMRS facility are considered 
customers for purposes of calculating rent.
    4. Section 2800.0-9 is added to read as follows:


Sec. 2800.0-9  Information collection.

    (a) The information collection requirements contained in part 2800 
of Group 2800 have been approved by the Office of Management and Budget 
under 44 U.S.C. 3507 and assigned clearance numbers 1004-0102 and 1004-
0107. The information is being collected to permit the authorized 
officer to determine if use of the public lands should be granted for 
rights-of-way grants or temporary use permits. The information will be 
used to make this determination. A response is required to obtain a 
benefit.
    (b) Public reporting burden for this information is estimated to 
average 41.8 hours per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden estimate 
or any other aspect of this collection of information, including 
suggestions for reducing the burden, to the Information Collection 
Clearance Officer (873), Bureau of Land Management, Washington, DC 
20240, and the Office of Management and Budget, Paperwork Reduction 
Project, 1004-0102 or 1004-0107, Washington, DC 20503.

Subpart 2801--Terms and Conditions of Rights-of-Way Grants and 
Temporary Use Permits

    5. Section 2801.1-1 is amended by revising the first sentence of 
paragraph (b) and adding a sentence to the end of paragraph (f) to read 
as follows:


Sec. 2801.1-1  Nature of right-of-way interest.

* * * * *
    (b) A right-of-way grant or temporary use permit may be used only 
for the purposes authorized. * * *
* * * * *
    (f) * * * However, the holder of a right-of-way grant for 
communication purposes may authorize other parties to use a facility, 
without prior written consent of the authorized officer, if so provided 
by terms and conditions of the grant.
* * * * *

Subpart 2803--[Amended]

    6. Section 2803.1-2 is amended by revising paragraph (b)(1)(i), 
paragraph (c)(1)(iv), the introductory text of paragraph (v), and 
paragraph (c)(2), by redesignating paragraphs (c)(3)(i), (c)(3)(ii), 
(c)(4), (c)(5), and (d) as paragraphs (e)(1), (e)(2), (f), (g), and (h) 
respectively, and by adding paragraph (d) and revising newly designated 
paragraph (e), to read as follows:


Sec. 2803.1-2  Rental.

* * * * *
    (b)(1) * * *
    (i) The holder is a Federal, State, or local government, or agency 
or instrumentality thereof, except parties who are using the space for 
commercial purposes, and municipal utilities and cooperatives whose 
principal source of revenue is customer charges:
* * * * *
    (c)(1) * * *
    (iv) Rental for the ensuing calendar year for any single right-of-
way grant or temporary use permit is the rental per acre from the 
current schedule multiplied by the number of acres embraced in the 
grant or permit, unless such rental is reduced or waived as 

[[Page 57071]]
provided in paragraph (b)(2) of this section.
    (v) The authorized officer will use the linear rental schedule 
unless the authorized officer determines:
* * * * *
    (2)(i) Existing linear right-of-way grants and temporary use 
permits may be made subject to the schedule provided by this paragraph 
upon reasonable notice to the holder.
    (ii) Where the new annual rental for linear rights-of-way exceeds 
$100 and is more than a 100 percent increase over the current rental, 
the amount of increase in excess of the 100 percent increase shall be 
phased in by equal increments, plus the annual adjustment, over a 3 
year period.
* * * * *
    (d) The annual rental payment for communication uses listed in 
paragraph (d)(1) of this section is based on rental payment schedules. 
The rental schedules apply to right-of-way holders and tenants 
authorized to operate and maintain communication facilities on public 
lands. They do not apply to holders who are public telecommunications 
service operators providing public television or radio broadcast 
services granted a waiver under Sec. 2803.1-2(b)(2)(i). Nor do they 
apply to communication site uses, facilities, or devices located 
exclusively within the exterior boundaries of an oil and gas lease and 
directly associated with the operations of the oil and gas lease 
(subpart 2880).
    (1) The schedules are applicable to communication uses that provide 
the following services:
    (i) Television broadcast includes right-of-way holders that operate 
FCC-licensed facilities used to broadcast UHF and VHF audio and video 
signals for general public reception, and communication equipment 
directly related to the operation, maintenance, and monitoring of the 
use. This category does not include holders licensed by the FCC to 
operate Low Power Television (LPTV) or rebroadcast devices such as 
translators, or transmitting devices such as microwave relays serving 
broadcast translators.
    (ii) AM and FM radio broadcast includes rights-of-way that contain 
FCC-licensed facilities primarily used to broadcast amplitude 
modulation (AM) or frequency modulation (FM) audio signals for general 
public reception, and communication equipment directly related to the 
operation, maintenance, and monitoring of the use. This category is not 
applicable to holders licensed by the FCC as a low-power FM radio. This 
category also does not include rebroadcast devices such as translators, 
boosters, or microwave relays serving broadcast translators.
    (iii) The broadcast translator and low power television category 
includes FCC-licensed translators and low power television, low power 
FM radio, and communication equipment directly related to the 
operation, maintenance, or monitoring of the use. Microwave facilities 
used in conjunction with LPTV and broadcast translators are included in 
this category.
    (iv) Cable television includes FCC-licensed facilities that 
transmit video programming to multiple subscribers in a community over 
a wired or wireless network, and communication equipment directly 
related to the operation, maintenance, or monitoring of the use. This 
category does not include rebroadcast devices that retransmit 
television signals of one or more television broadcast stations, 
personal or internal antenna systems such as private systems serving 
hotels or residences.
    (v) Commercial mobile radio service/facility manager includes FCC-
licensed commercial mobile radio facilities or their holders providing 
mobile communication service to individual customers, and communication 
equipment directly related to the operation, maintenance, or monitoring 
of the use. Such services generally include two-way voice and paging 
services such as community repeaters, trunked radio (specialized mobile 
radio), two-way radio dispatch, public switched network (telephone/
data) interconnect service, microwave communications link equipment. 
Some holders in this category may not hold FCC licenses or operate 
communication equipment, but may lease building, tower, and related 
facility space to a variety of tenants as a part of their business 
enterprise, and may act as facility managers.
    (vi) Private Mobile Radio includes FCC-licensed private mobile 
radio systems primarily used by a single entity for mobile internal 
communications, and communication equipment directly related to the 
operation, maintenance, or monitoring of the use. This use is not sold 
and is exclusively limited to the user in support of business, 
community activities, or other organizational communication needs. 
Services generally include private local radio dispatch, private paging 
services, and ancillary microwave communications equipment for the 
control of the mobile facilities.
    (vii) Cellular telephone includes FCC-licensed systems and related 
technologies used for mobile communications using a combination of 
radio and telephone switching technology, and providing public switched 
network services to fixed and mobile users within a defined geographic 
area. The system consists of cell sites containing transmitting and 
receiving antennas, cellular base station radio, telephone equipment, 
and often microwave communications link equipment, and communication 
equipment directly related to the maintenance and monitoring of the 
use.
    (viii) Microwave includes FCC-licensed facilities used for long-
line intrastate and interstate public telephone, television, 
information, and data transmissions, or used by pipeline and power 
companies, railroads, and land resource management companies in support 
of the holder's primary business. Also included is communication 
equipment directly related to the operation, maintenance, or monitoring 
of the use.
    (ix) Other communication uses include holders of FCC-licensed 
private communication uses such as amateur radio, personal/private 
receive-only antennas, passive reflectors, natural resource and 
environmental monitoring equipment, and other small, low-power devices 
used to monitor or control remote activities.
    (2)(i) The rental schedules will be adjusted annually based on the 
U.S. Department of Labor Consumer Price Index for All Urban Consumers 
(CPI-U, U.S. City Average, published in July of each year), and Ranally 
Metro Area population rankings. Annual adjustments based on the CPI-U 
will be limited to no more than 5 percent. The rental schedule will be 
reviewed for possible update no later than 10 years after December 13, 
1995, and at least every 10 years thereafter, to ensure that the 
schedule reflects fair market value.
    (ii) Rights-of-way may be reviewed on a case-by-case basis 10 years 
after issuance or beginning [10 years and 30 days after the date of 
publication], whichever is later, and no more often than every 5 years 
thereafter, on holder request, to determine whether rents are 
appropriate.
    (3) Rent is based on the actual users in the facility. For a 
facility with a single user, the base rent is the schedule rent for the 
use. Base rent for authorizations that include more than one user will 
be based on the use in the facility with the highest rent as shown on 
the schedule. An additional amount will be assessed based on 25 percent 
of the schedule rent for all other users. (A facility manager is not 
considered a separate use for purposes of calculating 

[[Page 57072]]
the additional amount for tenants in the facility.)
    (4) Increases in base rental payments over 1996 levels in excess of 
$1,000 will be phased in over a 5-year period. In 1997, the rental 
payment will be the 1996 rental, plus $1,000. The amount exceeding 
$1,000 will be divided into 4 equal installments, and beginning in 1998 
the installment, plus the annual adjustment in the total rent, will be 
added to the previous year's rent.
    (5) Annual rental payments will be calculated and provided to the 
holder by December 31 for each ensuing calendar year based on the 
schedules published from time to time as necessary in the Federal 
Register.
    (6) Also, the right-of-way holder must submit a certified statement 
by October 15 of each year listing tenants in the facility and the 
category of use for each tenant as of September 30 of that year, and 
pay 25 percent of the schedule rent for the category of use. Tenants 
occupying space in the facility under terms of the holder's right-of-
way authorization will not be required to have a separate BLM 
authorization.
    (7) Other methods may be used to set rental payments for 
communication uses when the authorized officer determines one of the 
following:
    (i) The holder is eligible for a waiver or reduction in rent in 
accordance with Sec. 2803.1-2(b)(2);
    (ii) Payment of the rent will cause undue hardship under 
Sec. 2803.1-2(b)(2)(iv);
    (iii) The original right-of-way authorization has been or will be 
issued pursuant to a competitive bidding process;
    (iv) The State Director concurs in a determination made by the 
authorized officer that the expected rent exceeds the schedule rent by 
5 times, or the communication site serves a population of 1 million or 
more and the expected rent for the communication use is more than 
$10,000 above the schedule rent; or
    (v) The communication facilities are ancillary to and authorized 
under a right-of-way grant for a linear facility. In such cases, rent 
for the associated communication facilities is to be determined in 
accordance with the linear fee schedule.
    (e)(1) The rental for right-of-way grants and temporary use permits 
not covered by the right-of-way schedule in Sec. 2803.1-2(d)(5) will be 
determined by the authorized officer and paid annually in advance. 
Rental for communication site rights-of-way not covered by the 
schedule, except those issued pursuant to Section 28 of the Mineral 
Leasing Act (30 U.S.C. 185), will be based on comparative market 
surveys, appraisals, or other reasonable methods. All such rental 
determinations shall be documented, supported, and approved by the 
authorized officer. Where the authorized officer determines that a 
competitive interest exists for site type right-of-way grants such as 
for wind farms, communication sites, etc., rental may be determined 
through competitive bidding procedures set out in Sec. 2803.1-3.
    (2) To expedite the processing of any grant or permit covered by 
paragraph (e)(1) of this section, the authorized officer may estimate 
rental and collect a deposit in advance with the agreement that upon 
completion of a rental value determination, the advance deposit will be 
adjusted according to the final fair market rental value determination.
* * * * *

PART 2810--TRAMLOADS AND LOGGING ROADS

Subpart 2812--Over O. and C. and Coos Bay Revested Lands

    7. Section 2812.0-9 is added to read as follows:


Sec. 2812.0-9  Information collection.

    The information collection requirements contained in part 2810 of 
Group 2800 have been approved by the Office of Management and Budget 
under 44 U.S.C. 3507 and assigned clearance numbers 1004-0102 and 1004-
0107. The information is being collected to permit the authorized 
officer to determine if use of the public lands should be granted for 
rights-of-way grants or temporary use permits. The information will be 
used to make this determination. A response is required to obtain a 
benefit.

PART 2880--[AMENDED]

Subpart 2880--Oil and Natural Gas Pipelines and Related Facilities: 
General

    8. Section 2880.0-9 is added to read as follows:


Sec. 2880.0-9  Information collection.

    The information collection requirements contained in part 2880 of 
Group 2800 have been approved by the Office of Management and Budget 
under 44 U.S.C. 3507 and assigned clearance numbers 1004-0102 and 1004-
0107. The information is being collected to permit the authorized 
officer to determine if use of the public lands should be granted for 
rights-of-way grants or temporary use permits. The information will be 
used to make this determination. A response is required to obtain a 
benefit.

[FR Doc. 95-27619 Filed 11-9-95; 8:45 am]
BILLING CODE 4310-84-P