Rights-of-Way, Rental Schedule for Communication Uses

[[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