[Federal Register Volume 60, Number 218 (Monday, November 13, 1995)]
[Rules and Regulations]
[Pages 57058-57072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27619]
[[Page 57057]]
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Part II
Department of the Interior
_______________________________________________________________________
Bureau of Land Management
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43 CFR Part 2800 et al.
Rights-of-Way, Rental Schedule for Communication Uses; Final Rule and
Notices
Federal Register / Vol. 60, No. 218 / Monday, November 13, 1995 /
Rules and Regulations
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[[Page 57058]]
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 2800, 2810, 2880
[WO-350-1430-00-24-1A]
RIN 1004-AC12
Rights-of-Way, Rental Schedule for Communication Uses
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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SUMMARY: This final rule amends right-of-way regulations containing
procedures for setting rent for communication uses located on lands
administered by the Bureau of Land Management. The final rule
establishes procedures and a rental schedule for determining rent for
nine categories of communication uses. The rental schedule is identical
to one recently adopted by the U.S. Forest Service for use on National
Forest System lands in the Western States.
These revisions establish a fair and consistent approach for
determining rental payments for various communication uses, based on
the population of the community nearest the site and reflective of fair
market value as required by Title V of the Federal Land Policy and
Management Act of 1976. The final rule encourages tenants in a
communication facility to consolidate their separate authorizations
under one authorization, reducing billing costs and minimizing agency
involvement in managing use and occupancy of the facility. The
schedules will reduce BLM costs associated with obtaining appraisals,
and can be expected to reduce the number of disputes concerning rental
values. Rental payments will be applied on a consistent basis and allow
users to anticipate changes in rent for planning purposes. At the same
time, the administrative process implementing the schedule has been
simplified and includes sufficient flexibility and safeguards to
minimize disruption in business relationships and service.
DATES: The effective date of the regulations is December 13, 1995.
ADDRESSES: Inquiries or suggestions should be sent to: Director (350),
Bureau of Land Management, U.S. Department of the Interior, Room 5555,
Main Interior Building, 1849 C Street NW, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Dave Cavanaugh, (202) 452-7774.
SUPPLEMENTARY INFORMATION:
Statutory Requirements
At 43 U.S.C. 1701(a)(9), FLPMA states that it is the policy of the
United States to receive the fair market value of the use of the public
lands and their resources unless otherwise provided by statute.
At 43 U.S.C. 1761(a), FLPMA authorizes the Secretary of the
Interior to grant, issue, or renew rights-of-way for communication
uses, including systems for transmission or reception of radio,
television, telephone, telegraph, and other electronic signals.
Section 504(g) of FLPMA (43 U.S.C. 1764(g)) requires the holder of
a right-of-way to pay annually in advance the fair market value thereof
as determined by the Secretary granting, issuing, or renewing the
right-of-way. The Secretary may waive part or all of the payment when
it is found to be equitable and in the public interest. Rights-of-way
issued at less than fair market value are not assignable except with
the approval of the Secretary issuing the right-of-way.
The regulations implementing the right-of-way provisions of FLPMA
are found in 43 CFR part 2800. Portions of these regulations relating
to cost recovery were last amended in 1987. Provisions for rental
payments are found in 43 CFR subpart 2803, and state in part that the
holder of a right-of-way grant or temporary use permit is required to
pay annually, in advance, with certain exceptions, the fair market
value rental. The authorized officer determines the rental, applying
sound business management principles and, so far as practicable and
feasible, using practices used in commerce.
Payment of fair market rent is different from provisions of 43 CFR
subpart 2808 on reimbursement of reasonable costs in processing
applications. The payment of rent for the right to use land is separate
from payment of fees for costs associated with processing an
application.
Background
The BLM currently administers approximately 3,200 communication
site authorizations and collects annually between $1.5 and $2.0 million
dollars in rental payments. Approximately 50 percent of the authorized
users pay no rent because they are exempt under existing regulations.
Examples of holders who are exempt from rent include local law
enforcement and emergency response groups; Federal, State, and county
agencies; and public broadcast stations. The remaining communication
use right-of-way holders pay an annual rental based upon BLM-approved
appraisals.
Generally, BLM bases rents for new uses on a preliminary estimate
of fair market value until an appraisal can be completed. As a
customary practice, rents for existing users are updated every 5 years
to ensure that the amounts reflect changes in market conditions. Many
BLM appraisals are out-of-date because statutory language in successive
appropriations bills from 1990 to 1994 limited the Secretary's
authority to raise rents. The 1995 appropriations bill did not contain
any limiting language.
In 1992, Congress directed both the Secretary of Agriculture and
the Secretary of the Interior to establish a Radio and Television Use
Fee Advisory Committee. The advisory committee report made several
recommendations. These included use of rental schedules instead of
individual appraisals for setting rental payments; acceptance of market
ranking methods that relate to the population served; a phase-in period
for rent increases greater than $1,000; a provision for charging 25
percent of the gross sublease income; and annual increases based on the
Consumer Price Index, Urban Consumer, U.S. City Average (CPI-U). These
recommendations were considered in developing the proposed rule.
The BLM and FS endorsed many of the Committee's recommendations on
rental implementation and administration, but rejected its proposed
rental schedule on the basis that it did not represent fair market
rental.
In July 1993, the FS published a notice in the Federal Register (58
FR 37840, July 13, 1993) proposing a schedule for four categories of
commercial uses and invited public comment. The uses included
television broadcast, FM radio broadcast, commercial mobile radio, and
cellular telephone uses. The FS proposed schedule for television and
radio adopted many proposals of the advisory committee. However, the
proposed rent was higher than the schedule proposed by the advisory
committee. The comment period ended October 12, 1993. In order to
coordinate with BLM, the FS decided to delay their final policy.
The FS and BLM jointly reviewed and considered the comments
received by the FS on its July 1993 proposed policy. The FS decided to
delay publishing their final notice pending BLM's publication of a
proposed rule and review of comments.
On July 12, 1994, BLM published a proposed rule in the Federal
Register (59 FR 46806). The BLM rule incorporated many of the comments
[[Page 57059]]
received by the FS regarding the four categories of commercial
communication uses, and the ranges of population served by a facility,
that serve as variables on the schedule to determine the rent to be
charged. BLM's proposal expanded the number of site categories from 4
to 11, and increased the number of population ranges in the schedule to
minimize impacts on holders located on sites serving populations at the
lower end of the range. The proposed rule was drafted in cooperation
with the FS. It was agreed that the BLM proposal would be the basis for
the FS's final notice.
On July 12, 1994, the House of Representatives Committee on Natural
Resources, Subcommittee on National Parks, Forests and Public Lands,
and the Committee on Government Operations, Subcommittee on
Environment, Energy, and Natural Resources, held a joint hearing on
rents for communication sites on Federal lands. At the hearing, the
General Accounting Office (GAO) released a report (GAO/RCED-94-248) and
testified that fees being charged for the communication sites on
Federal lands are, in most instances, significantly below fair market
value. The Committee strongly encouraged BLM and FS to promulgate
rental schedules as soon as possible.
The GAO report stated that FS rental payments are based on an
outdated formula established 40 years ago, and that BLM rents are based
on out-of-date appraisals. GAO recognized that agency efforts to raise
rents had been prohibited by Congress, and warned that if these
prohibitions continued, the Federal government would not obtain fair
market value for communications sites for many years.
The GAO also found that BLM and FS do not have the basic
information needed to manage communication sites effectively and to
ensure that the agencies are collecting all of the revenues owed to the
government. GAO recommended that the agencies develop and maintain
complete and reliable program-wide data on the number and types of
uses, and amount of rent that they generate.
The Proposed Rule
The proposed rule amending regulations for determining annual rent
was published in the Federal Register (59 FR 35596) on July 12, 1994.
The comment period closed on September 12, 1994. On September 12, the
BLM extended the comment period to October 12, 1994.
The proposed rule contained amended procedures for setting annual
rent for ten categories of communication uses on public lands, plus a
category for facility managers. The rule proposed three major
categories of use: broadcast, nonbroadcast, and other. Broadcast
included television, FM radio, rebroadcast devices, and cable
television. Nonbroadcast included commercial mobile radio service,
cellular telephone, private mobile communications, common carrier
microwave communications, private microwave, other communication uses,
and facility management. The category ``other'' referred to small,
unobtrusive, low power uses serving small numbers of customers. The
rent for a facility with more than one category of use would have been
based on its primary use authorized under terms of the right-of-way.
The proposed rule included different methods for setting the base
rent for each of the categories. For instance, it proposed that rent
for television and FM radio stations be based on the population of the
principal community or communities primarily served by the transmitter.
For cable television, the base rent was to be determined by the total
number of subscribers as reported by the right-of-way holder.
The proposed rule provided that the base rent for nonbroadcast
uses--commercial mobile radio service, private mobile communication,
cellular telephone, common carrier microwave, private microwave,
facility manager and miscellaneous uses--would be determined by
different factors. For these uses, rent would be determined by the
population of the county in which the transmitter is located or the
population of an adjacent or nearby county served by the transmitter,
whichever is greater.
In addition to a base rent for the authorized use of a facility,
the proposed rule also included an assessment for additional users
within the facility. The BLM proposed that right-of-way holders,
typically the facility owner, be required to pay a percentage of gross
rent received from the subleasing of space in the facility.
Increases in the base rent and the percentage of gross rent were to
be phased in over 5 years. Initial increases in the base rent in excess
of $1,000 or 20 percent of the current rent, whichever is greater,
would have been phased in. The proposed rule included provisions that
the percentage of gross rent received from additional tenants in the
facility be phased in; 15% during the first five years, and 25%
thereafter.
The proposed rule also required annual updates of the rental
payments, required periodic review of the rental schedule, and
reiterated BLM policy regarding waiver of rental.
As proposed, the rule would have adopted a new procedure that would
have reduced agency costs of setting and updating rental payments for
new and existing right-of-way holders. The final rule adopts the basic
procedure, in which the rental schedule is applied, eliminating most
individual appraisals, encouraging consolidated billing under a master
right-of-way authorization, and providing a means for annually updating
the rent. The BLM estimates appraisals to cost approximately $2,000
each. With more than 1,500 commercial communication site rights-of-way,
each cycle of rent establishment could cost more than $3 million. The
rule will eliminate much of this cost, although some appraisals will
still be performed.
Organization of Rule
This final rule amends 43 CFR 2803.1-2 Rental. This section of the
existing regulations includes a schedule for linear rights-of-way,
including oil and gas pipelines, related pipeline roads, ditches,
canals, electric transmission lines, telephone, electric distribution,
non-energy pipelines, and other linear uses. This final rule adds
procedures and authorizes a rental schedule for non-linear
communication site rights-of-way. The schedule itself appears elsewhere
in this issue of the Federal Register.
Many respondents to the proposed rule argued that the proposed
rents were too high and would harm small entities, that the provision
to charge a percent of the gross rent was unfair, and the different
criteria in the schedules--population of the community or communities
served or county population--were unworkable and would create
inequities. Their overriding concern was that the procedure for setting
rental payments was too complicated, that the schedule may not
reasonably set rental payments, and that the new rental payments would
potentially create problems unless there was some mechanism to
alleviate them.
In response to the comments, BLM made a number of changes in the
final rule for nonlinear communication site rights-of-way. The schedule
in its final form more closely reflects market rent and minimizes
impacts on holders of sites serving smaller population areas. Rents
will correlate with the population of the local community where the
facility is situated or that it serves, or both, rather than distant
communities served by the facility. Instead of having several different
methods for determining population, the final rule utilizes the Ranally
Metro Areas
[[Page 57060]]
(RMA's) as identified in the ``Rand McNally Commercial Atlas and
Marketing Guide, 1995'' for listed communities having a population of
50,000 or more. Rental payments for uses on sites serving communities
not listed and having a population of less than 50,000 will be based on
the category of use and the most recent census performed by the U.S.
Census Bureau for the community. Therefore, the final schedule that BLM
is adopting more directly correlates to the population of the local
community where the facility is situated.
To simplify implementation further, the definitions for two
categories have been broadened, resulting in the reduction of
categories from 11 to 8. The Commercial Mobile Radio Service (CMRS)
category has been broadened to include facility managers and ancillary
microwave link equipment, and the microwave now includes common carrier
microwave category.
To improve consistency in setting rents, the final rule adopts the
concept of using the schedule to determine the primary use of the
facility and assessing an additional amount for other users. The base
rent is determined by the use that generates the highest rent on the
schedule (highest valued use) of all uses in the facility, excluding
those uses that would qualify for an exemption or waiver. To avoid
having to keep track of rents received from tenants in the facility,
the final rule assesses an additional amount for each tenant occupying
space in the facility. This responds to the contention in many comments
that it was not a widespread practice for landowners to charge a
percentage of gross rent from tenants. In addition, the final rule
defines ``tenant'' to alleviate the potential for charging occupants in
the facility who are customers paying for a communication service.
In response to concerns that the rental schedule may be unfair, the
final rule provides the authorized officer ample discretion to use
other methods to set rental payments. Holders who believe the initial
rents set by the schedule are unreasonable may ask the authorized
officer to reconsider the initial rental assessment. The holder may
request an individual appraisal or may provide recent leases for
similar uses in similar locations to help BLM set appropriate rent. If
agreement cannot be reached, the holder may appeal the rental
determination. For those whose rent will increase more than $1,000
during the first year, the amount over $1,000 will be phased in over
the next five years. Also, the authorized officer may consider hardship
requests or give partial waivers to holders who provide, without charge
or at reduced rates, a valuable benefit to the public or programs of
the Secretary.
The final rule also simplifies the process for determining when the
holder is eligible for phasing in increases in rent and the amount to
be phased in. The final rule phases in increases of more than $1,000,
removing the 20 percent or more calculation required in the proposed
rule.
Finally, the final rule provides that rental payments will be
updated annually based on the Consumer Price Index. This applies to all
rents, whether initially determined through the schedules, appraisals,
or some other means. Increases in rent based on the Consumer Price
Index would be limited to 5 percent. This will reduce the likelihood
that rental payments will drop below market levels or result in sharp
increases when the schedule is updated.
The rule also adds sections 2800.0-9, 2812.0-9, and 2880.0-9 to the
regulations. These sections merely codify the Notes on information
collection currently found at the beginning of part 2800.
Section 2803.1-2 has been reorganized in part in the final rule,
and paragraphs in the proposed rule have been redesignated in the final
rule to reflect this. Mainly, subparagraphs within paragraph (c) of the
existing regulation have reen redesignated as paragraphs (e) through
(h), and paragraph (e) of the proposed rule, which introduced the
rental schedules, has been redesignated (d) in the final rule.
Analysis of Comments
The BLM received a total of 61 comments on the proposed rule. All
comments on the rule were shared and jointly analyzed by the BLM and
FS.
In general, eight major issues were identified in the comments. (1)
Do proposed rents reflect fair market value? (2) Format of schedule.
(3) Additional users. (4) Use of appraisals to set fair market rent.
(5) Administrative complexity. (6) Phase-in. (7) Updating rental
payments. (8) Use categories.
1. Do Proposed Rents Reflect Fair Market Value?
Several respondents stated that the proposed rents were too high.
Many of them objected to both the proposed rental payments and the
proposal to charge an additional amount based on a percent of the gross
receipts received from renting space in the facility. Several suggested
that the proposed rental payments were unfair and would affect their
economic survival.
A few comments suggested that preparing individual appraisals would
more accurately reflect fair market value than use of a schedule, while
others expressed concern that individual appraisals would be used
instead of the schedule. Others stated that the base rents were
acceptable but totally disagreed with adding on a percentage of the
gross for rental of space in the facility. A smaller number commented
that the proposed rents were far too low and in some cases would not
possibly cover the costs of processing the billing. Other comments
stated that the right-of-way authorization conveyed fewer rights and
therefore should be less valuable than leases conveyed in the private
sector.
The BLM intends the approach taken in developing the final schedule
to achieve a reasonable estimate of fair market value, and believes
that it succeeds in doing so. The BLM took information from a variety
of sources into consideration in developing the schedule. These sources
include (1) the report of the Radio and Television Broadcast Use Fee
Advisory Committee, whose recommendations were discussed above, (2)
information obtained by government appraisers, industry
representatives, and private lessors, (3) market information provided
by users and industry groups in response to the original FS notice and
the BLM proposed rule, and (4) agency records showing current billings
for new and existing users. The application of this information was
described in the preamble to the proposed rule, and is revisited in
this preamble in the discussion of public comments.
Appraisals may provide a more accurate indication of the fair
market value of a particular use on a specific site. However, the costs
of performing individual appraisals--estimated at $2,000 each--would be
enormous compared to those of implementing uniformly applicable
schedules, reducing the returns to the Treasury for use of public
resources. There would be pressure to increase the rents charged to
make up for these costs. Also, the lag time involved in performing a
large number of appraisals would be so great that some holders would be
paying rents disproportionately higher or lower than others for
significant periods of time. This might impel holders to complain of
unequal treatment under the law.
The rental process outlined in the final rule sets as reasonable a
rent as possible for the type of use, its location, and rights granted.
The rental market for communication sites varies
[[Page 57061]]
considerably. Also, terms of private lease agreements vary widely, and
it is difficult to quantify the effect of lease provisions on rental
value.
In response to concerns expressed by the comments, BLM has made the
following changes in the final rule:
The originally proposed rents in several categories have been
reduced to reflect information provided by respondents.
The proposal to base rent for tenants on a percentage of the annual
gross receipts received from rental of space in the facility has been
eliminated.
Current right-of-way holders will be notified of the new rent and
given instructions for appealing the new rent in accordance with
existing regulations.
Schedule rents, and rents determined by appraisal or other methods,
may be adjusted by the authorized officer if the criteria in section
2803.1-2(b)(2) apply, e.g., the holder is a nonprofit business,
provides a public service at reduced or no costs, or would suffer undue
hardship from imposition of the schedule rent.
2. Format of Schedule
Several respondents requested that the basis in the proposed rule
for setting rent for broadcast and nonbroadcast uses, i.e., U.S. Census
Population for the principal community or communities served, or the
county population, depending on circumstances and the type of use, be
reconsidered. Comments suggested a variety of other methods, including
market ranking services for broadcast radio and television, number of
subscribers, size of building, the FCC-defined service contour of the
individual facility, a percentage of the total value of the facility,
number of transmitters, height of the tower, or a percentage of the
rental income.
We considered all suggestions. Most of them would require site-
specific studies, development of specific criteria and instructions for
each type of use, or result in rental determinations that would be too
subjective and create potential inconsistencies in application of the
schedule. Other suggestions would require a system of information
collection that would make the billing process less efficient. The
final rule features a common schedule format for all uses based on
population, because it represents the best way to obtain a reasonable
estimate of fair market value with a tool that is evenhanded and
economical to use.
Several of the respondents opposed using the population of the
principal communities served for setting the rent for television and
radio stations. One comment expressed concern that, based on the total
population of the principal communities served in the Boise, Idaho,
market, television and radio stations would be paying $16,000 and
$11,000 respectively, instead of the $6,000 and $4,000 amounts in the
example included in the proposed rule. The major concern was that the
original proposal would be difficult to implement and create inequities
because of differences in identifying the principal communities served
and calculating their populations. The respondents argued that the
concept was too vague and that it would be difficult to determine the
population served using census information. We agree with the comments
and have dropped the idea of calculating rental payments based solely
on the U.S. census population of the principal communities served,
except for small communities as discussed below.
Television and radio broadcasters preferred that BLM adopt
industry-recognized market ranking methods: Nielsen Designated Market
Areas for television and Arbitron Company Metro Area rankings for
radio.
For several reasons, the final rule does not incorporate the
suggestion that the schedule for television and radio uses be based on
an industry-recognized market ranking system.
First, radio market rankings are not nationwide, and there are
significant gaps in coverage. Therefore, other methods must be
developed to establish rent in those areas not covered by the market
ranking services.
Second, the television market ranking system does not measure the
households or audience reached by the broadcast transmitter. Instead,
it includes households reached by a combination of microwave technology
and translators that serve other smaller markets. This inadvertently
inflates rental payments for those stations that have an extensive
network of translators that serve communities outside the area normally
reached by the transmitter. Also, translators on public land themselves
pay rent based on populations served.
Third, television market rankings do not include satellite or
affiliate stations that serve smaller communities within the dominant
market area (DMA).
Fourth, having separate market ranking systems for each category of
use would complicate implementation of the schedule.
Other respondents questioned using county population for
nonbroadcast uses, stating that there was little relationship between
county population and rent for nonbroadcast uses. They also believed
that in geographically large counties, such as Riverside and San
Bernardino, California, using county population would result in
overpayment of rent for uses in more remote, sparsely populated areas
of the county. One comment suggested that the population considered be
more narrowly defined and consideration be given to the population of
the nearest community.
Several respondents stated that there was no correlation between
the rent paid for microwave and private mobile radio sites and
population, and that this would be an inappropriate method for setting
rent.
There are various factors that influence rent but that are not
necessarily related to population. For example, microwave facilities
provide a system for transporting information from one point to another
point. They operate on a linear, line-of-sight basis and, in many
instances, do not serve nearby population areas, and therefore rent may
not have any relationship to population. However, in those instances
where the microwave facility is located on a site that serves a nearby
population area, land rents are more directly correlated to nearby
population. The same reasoning applies to private mobile radio users.
The final rule bases scheduled rent on populations of the community
where facilities are situated, rather than of entire counties or other
arbitrary political subdivisions containing them. That is, the
populations upon which the schedules are based are those that in many
cases are being served by the facilities, or are those of the community
near or containing the facility (because population is usually causally
related to land value) or in some cases where the people working at the
facility live, or all of these. Although the concept may not be
universally applicable, BLM believes this to be an appropriate basis
for developing a schedule, especially compared with other options that
would be more difficult to implement.
We disagree with comments that there is no correlation between
population and rent charged for a communication site. We recognize
there may be no direct relationship between the private communication
use and population, since the service is not sold. However, market
information gathered by BLM shows that land rents are generally higher
for sites near metropolitan areas than for those sites in less
populated areas.
Our primary goal has been to develop a schedule that is easy to
implement and facilitates the calculation of a reasonable rent. As a
result of the comments, the final rule adopts a
[[Page 57062]]
formula for calculating the rental based on the population of the
community nearest the site, served by the site, affected by the site,
or all of these, depending on the nature of the facility. Some
facilities affect the environment of or provide employment for a local
community while providing communication service to a distant
metropolis, while others serve only the locality where they are
situated. In calculating rents using the schedules, distant population
centers served by the facility will not be considered.
The population base for the site is determined in three ways. The
first step is to determine whether the facility is situated in or near
a community listed as a Ranally Metro Area (RMA) as identified in the
``Rand McNally Commercial Atlas and Marketing Guide, 1995.'' An RMA
represents Rand McNally's definition of metropolitan areas in the
United States. There are 452 RMA's. Four hundred and seventeen have a
population of 50,000 or more. Thirty-five listed RMA's have a
population near 50,000 and are included as RMA's because they include a
central city of an official Metropolitan Statistical Area. If the
community is listed as an RMA, the population of the community as shown
in the Rand McNally publication will be used to set the scheduled rent.
RMA's are updated every year, and are more useful than U.S. Census
reports on cities in providing accurate counts of the population
affected by, serving, served by, or related to a communication
facility.
Second, if the site does not serve a listed RMA, the scheduled rent
will be based on the most recent Rand McNally Road Atlas population of
the largest nearby community.
Third, for sites located in or serving a community of less than
25,000 people, the rent that will be charged is the minimum rent shown
on the schedule for the type of facility.
Consideration was given to using statistical definitions of
Metropolitan Statistical Areas (MSA), as defined by the Office of
Management and Budget (OMB Bulletin No. 93-17), for determining the
population of nearby communities. MSA's are defined in terms of entire
counties, except in the six New England States where they are defined
in terms of cities and towns. In many of the Western States the
counties are very large: Maricopa County, Arizona, and Clark County,
Nevada, for example. As a result, use of MSA's would result in unfair
rents for those holders serving a portion of a larger county.
Therefore, BLM decided not to use this method.
In response to the public comments, the final rule includes the
following changes:
The final rule bases the rental schedule on a ranking of RMA's as
identified in the Rand McNally Commercial Atlas and Marketing Guide,
1995.
The rents for uses located on sites serving RMA's will be based on
the population of the RMA's served by the site.
Rents for those uses located on sites not serving an RMA will be
based on the most recent U.S. census population of the community.
We made minor changes in the description of ``other communication
uses'' in response to comments. The description is clarified by
including other small, low-power devices used to operate, monitor, or
control remote activities such as wireless telephone or mobile radio
service to sparsely populated areas, in order more accurately to depict
the uses covered by the category.
3. Additional Users
A majority of the comments opposed assessing rent for additional
users in the building based on a percentage of the gross rent received.
The proposal was criticized as unfair, not supported by market data,
exorbitant in view of the proposed base rent, and too difficult and
costly to implement. Others pointed out that, with few exceptions,
private landowners do not receive an additional amount from the primary
lessee for tenants in the building. One respondent suggested that BLM
provide data to support its position that payment of a percentage of
gross rent is common in the marketplace.
Respondents stated that the term ``gross sublease rent'' was not
clear, and worried that the holder would be assessed a charge for all
occupants in the facility, customers as well as tenants. There was also
concern that it would be difficult for holders to report rent received
accurately, making them vulnerable to charges of underpayment of rent.
Others argued that, since several BLM State Offices currently charge
each tenant separately, this provision would reduce total public
revenues.
In view of the comments, the final rule no longer charges 25
percent of the gross rent received from tenants in the facility. We
agree the provision would be intrusive for most businesses and would be
difficult to implement. Therefore the original proposal has been
amended to charge the holder the full schedule rent for the principal
use of the facility, even if a tenant's use is the principal use, plus
25 percent of the schedule rent for the other uses, whether of tenants
or the holder.
Generally, multiple user facilities located on public lands are
more valuable than single user facilities, and an additional amount of
rent should be paid. Ignoring tenant use of the facility when setting
rent, while allowing the holder nearly exclusive use of the site by no
longer requiring agency approval for other tenants in the facility,
prevents recovery of fair market value. Also, the BLM and FS in some
States authorize tenants in facilities, and charge them rent.
Dispensing with that practice entirely, as some respondents suggested
by implication (in arguing against the collection of a percentage of
actual gross rent), would result in a significant reduction in revenue.
The BLM's statutory responsibility is to obtain fair market value
for the use of public lands, and this includes obtaining a rent for
secondary uses in the facility. Charging secondary users is in the
public interest, and as a business practice is supported by policies of
other land managing agencies and companies.
One comment made the observation that setting the base rent on the
authorized use without adjusting for other users in the building would
encourage lower rent users to obtain an authorization and then rent to
higher rent users. For example, a holder having an authorization for
internal mobile radio would sublease to a television or radio
broadcaster, collecting high rent from the sublessee under the schedule
in the proposed rule and paying low rent to the Government under the
same schedule. The comment suggested that the rent should be based on
all of the actual users in the facility, rather than just the holder's
use.
As a result of the comment, BLM realized that the existing
provision in section 2801.1-1, which was not addressed in the proposed
rule, limits uses of rights-of-way to those ``specified in'' the
authorization and prevents BLM from basing rent on the principal use of
the facility in cases where tenants of the holder actually operate the
primary or higher valued uses. In practice, most BLM authorizations are
for a ``communication use'' and do not specify a particular type of
communication use. Therefore, in a technical amendment in the final
rule, we have removed the reference in section 2801.1-1(b) to purposes
``specified in'' the authorization.
The rent for a holder of a facility with tenants will be the
highest rent the rental schedule assigns to any one of the uses in the
facility. An additional amount for the other tenants covered by
[[Page 57063]]
the authorization will be 25 percent of the scheduled rent for each of
those categories of use. The total rent paid by the holder will be the
schedule rent for the highest valued use plus 25 percent of the
schedule rent for each of the other tenant uses in the facility,
including the holder's use if it is not the highest valued. In some
cases, the rent paid by the holder under the final rule will be higher
than the rent that would have been required under the proposed rule,
depending on the amount of rent actually paid by tenants to the holder.
However, the total rent will still be less than it would be if the full
rent for all uses were assessed individually.
In response to the comments, the final rule makes the following
changes from the proposed rule:
Prior written approval from the authorized officer for other
tenants in the communications facility is no longer required.
The BLM will adjust the rent assessed the holder to reflect the
principal occupancy and use in the facility instead of basing it only
on the holder's use authorized by the existing right-of-way.
The certified statement of rents collected from sublessees,
provided for in section 2803.1-2(e)(6) of the proposed rule, has been
revised (section 2803.1-2(d)(6) in the final rule) to require only a
listing of tenants, by category of use, in the facility on September 30
of the current year. Provision for reporting the amount of rent
collected has been removed. The BLM reserves the right to conduct spot
audits.
The base rent for an authorized multiple use facility will be
charged for the use generating the highest schedule rent.
The terms ``tenant'' and ``customer'' have been defined to help
make clear which occupants in the facility would be subject to an
additional amount of rent under terms of the holder's authorization.
Existing tenants maintaining a separate authorization will be
subject to paying their full schedule rent. Applicants for rights-of-
way on land already subject to rights-of-way may obtain separate
authorizations from BLM. However, they will be subject to paying their
full scheduled rent, plus appropriate administrative costs. Users are
encouraged to combine same-site rights-of-way under a single right-of-
way authorization, and the final rule provides a rent reduction
incentive for such combinations.
4. Use of Appraisals To Set Fair Market Rent
Several respondents opposed permitting the authorized officer to
set rent payments based on individual appraisals instead of using the
schedule. They feared that the agency would seek to rely on appraisals
instead of uniformly implementing the schedule. One respondent asked
BLM to provide guidance on when individual appraisals would be needed.
Two respondents stated that the proposed rule would allow the
authorized officer to have unfettered discretion to set rental payments
different from the schedule, and another stated that the proposed rule
could result in significant abuse. Another comment suggested that BLM
establish criteria or standards to be applied when the rental schedule
does not yield fair market rent.
In response to the comments, section 2803.1-2(e)(4) of the proposed
rule (section 2803.1-2(d)(7) in the final rule) has been clarified and
criteria established in the final rule for allowing the authorized
officer to use appraisals or otherwise deviate from the schedule. Under
this section, the authorized officer may use appraisals or other means
if the holder is eligible for a waiver or reduction in rent, if payment
of the rent will cause undue hardship, if the right-of-way is a cost-
share road or reciprocal right-of-way, if the original right-of-way
authorization has been or will be issued under a competitive bidding
process, or if the State Director concurs in a determination made by
the authorized officer that the expected rent exceeds the schedule rent
by 5 times, or the communication site serves a population of 1 million
or more and the expected rent based on comparable leases for the
communication use is more than $10,000 above the schedule rent. To
accommodate this change, paragraph 2803.1-2(c)(1)(v) of the existing
regulation is amended in the final rule to allow BLM to use methods
other than the schedule in establishing rents for communication uses.
5. Administrative Complexity
Several respondents stated that the proposed rule would not improve
processing or reduce costs. One argued that the new procedure would
increase administrative processing and associated costs. The major
problems identified included how to categorize uses properly, the
difficulty of requesting and obtaining information from holders on a
timely basis to calculate a rental, whether to rely on the accuracy of
information provided by the holder regarding population served, number
of subscribers, or listings of tenants; and how to calculate the rent
accurately during the phase-in period. Some comments stated that audits
and inspections might be necessary to ensure enforcement, and feared
that the agencies would not have the resources to manage the changes
effectively.
Several comments complained that it takes too long to process an
application for use of public lands. One comment suggested that we need
to stop emphasizing the issue of fair market rent and get on to more
important matters, such as excessive delays and unnecessary
requirements for processing authorizations for use of Federal lands.
Others said that Government should not regulate or require rent for
secondary users, because of the length of time it takes to authorize
additional users in an existing building. However, one of the main
purposes of this rule is to streamline the process. This is
accomplished, for example, by removing appraisals from the process in
most instances, and removing the requirement for prior written approval
of tenants. No changes are made in the final rule in response to these
comments.
The BLM is committed to improving administration of communication
site uses and to full implementation of new, streamlined rental
procedures. Once they are implemented, rental payments will be
calculated consistently and updated annually to reflect fair market
value, and both administrative costs to the Government and non-rental
costs to users should decline, while service to the public improves. At
the same time, BLM will have more complete information on who is
authorized to be on public lands and what uses they may make of the
lands, and will be able to assess rental payments more accurately.
In response to the public comments, the final rule has been revised
in an effort to streamline implementation of the schedule. These
changes include:
The number of use categories is reduced from 11 to 9.
Use categories are defined more broadly to include other related
uses associated with the maintenance and monitoring of the use. For
example, internal mobile radio is often associated with other uses and,
therefore, is included in the definition of each category of use.
Commercial mobile radio service is redefined to include internal
and private communication used by commercial concerns but not sold for
a profit. When commercial mobile radio service is the highest valued in
the facility, the holder will not be assessed a percentage of the
scheduled rent for
[[Page 57064]]
internal and private communication uses.
The rule is amended to provide that occupants owning and operating
communication equipment in a commercial mobile radio service facility
for internal use only, and not re-selling their service for a profit,
are considered customers, not tenants. The base rent assessed (that is,
the rent paid by the holder for the holder's use and all tenant uses)
does not include any added rent for customers.
Facility owners and tenants may decide whether to consolidate their
authorizations.
Except as otherwise provided in Section 504(g) of FLPMA, the
requirement that the holder obtain written consent from the authorized
officer before allowing other parties to use the facility is removed.
The final rule allows phase-in of new rental payments if the holder
shows that the increase will exceed the previous year's rental by
$1,000 or more.
The information collection burdens placed on users in the original
BLM proposal are drastically reduced. For example, the final rule
eliminates the requirements that cable television users provide the
number of basic subscribers, that broadcasters provide a 1 millivolt
contour map or a list of communities served, and that holders account
to BLM for all rent actually received from sublessees.
Differences in the methods used to determine rent for each category
of use are minimized.
New applicants are encouraged to co-locate in existing facilities
in order to reduce surface disturbances for new roads and buildings and
avoid the proliferation of buildings and towers.
6. Phase-in
The proposed rule included provisions for reducing potential
impacts of large increases in rent. As proposed, increases in the base
rent of more than $1,000, or 20 percent of the current rent, whichever
is greater, were to be phased in over a 5-year period. Additional rent
from tenants based on a percent of the gross rent was proposed to be
set at 15 percent during the first 5 years and 25 percent thereafter.
Many of the respondents stated that the proposed procedure phasing
in increases in the base rent was reasonable. One person argued that
the 5-year phase-in was too generous, and another wondered why the
agency should provide a financial break for users who have not paid
fair market value for many years.
In response to general suggestions that the rental determination
process be simplified, we have changed the proposed phase-in procedure.
The final rule eliminates the dual standard test to determine
eligibility for phase-in of increases in rent. Instead, the final rule
requires that any increase of more than $1,000 or more will be phased
in over a five-year period. The original proposal would have required
the agency to make two separate calculations: determine if the new rent
exceeds the current rent by (1) $1,000 or (2) 20 percent of the current
rent. We have simplified the process by only requiring a determination
of whether the new rent exceeds the old by more than $1,000.
The phase-in adjustment works in this manner: if the current base
rent is $700 and the new rent based on the schedule will be $2,700, the
first year's rent will be $1,700, and the rent for years 2 through 5
will be increased $250 per year, plus the inflation adjustment increase
or decrease. Assuming a 2 percent annual increase in the CPI-U during
the 5-year phase-in period, the base rents will be calculated as
follows:
Year 1 $700+$1,000=$1,700
Year 2 ($1,700+$250) x 1.02=$1,989
Year 3 ($1,989+$250) x 1.02=$2,283.78
Year 4 ($2,283.78+$250) x 1.02=$2,584.46
Year 5 ($2,584.46+$250) x 1.02=$2,891.15
Year 6 ($2,891.15 x 1.02)=$2,948.97
7. Updating Rental Payments
Under the current regulations, rental payments are based on
appraisals, and the appraisals are supposed to be updated every 5
years. Because of delays in performing appraisals, increases in rent
have often been substantial, resulting in complaints and more appeals.
All too often, rental assessments had not been updated for 10 to 15
years. Legislated limitations on agency authority to increase rents
have made the problem worse.
The proposed rule included provisions to update payments annually
based on the U.S. Department of Labor Consumer Price Index for All
Urban Consumers (CPI-U), U.S. City Average, published in July of each
year, in order to avoid larger increases in rent and the possible
economic disruptions that would be caused by longer update intervals.
Two respondents expressed concern over when the agency would re-
evaluate the schedule. The proposed rule provided that the schedule
would be re-evaluated and if necessary updated periodically. One
respondent asked what was meant by ``periodically.'' The other comment
suggested that the rental schedule should be re-evaluated every 5
years. The comment noted that the rent for communication uses has
surged over the last several years, and that unless there was a
mechanism to update market information, rents under the schedule would
fall below fair market value.
In response to the comments, we have included in section 2803.1-
2(d)(2) of the final rule a provision that the rental schedule will be
reviewed for possible update no later than 10 years after it becomes
effective, and at least every 10 years thereafter, to ensure that the
schedule reflects a reasonable estimate of fair market value. Also,
individual rights-of-way may be reviewed after the first 10 years, and
no more often than once every 5 years thereafter, on holder request, to
determine whether rents are appropriate.
Many of the respondents generally supported use of the Consumer
Price Index-Urban (CPI-U) to index the rental payments. One respondent
stated that the CPI-U may not relate to local market conditions. Others
suggested the CPI-U be limited so that increases would not be too
dramatic. One suggested that increases be limited to no more than 5
percent, and others suggested they be limited to 1 percentage point
below the annual level of inflation.
In response to these comments, the final rule limits subsequent
increases based on changes in the consumer price index to 5 percent. We
believe this limitation, along with the notification and appeal process
and hardship provisions contained in section 2803.1-2(b)(2)(iv), should
reduce the potential for overcharging. One of the inherent problems
with schedules is that, over the long term, they may not adequately
reflect fair market rent. Market rents in specific areas may be more or
less than rents set by a schedule. Periodic reviews of the schedule
itself will help ensure that the rents do not become too low.
One respondent suggested that the example included in the proposed
rule was incorrect. The proposed rule provided that the first year's
base rent would be adjusted to reflect any increase in the consumer
price index. We agree with the comment. Any increase in the Consumer
Price Index (CPI-U) not exceeding 5 percent for the year will be
applied for the first time during the second year.
Along with updating rents based on the CPI-U, the RMA rankings will
be updated annually to reflect changes in estimated population. Of
course, this may also result in rent adjustments.
[[Page 57065]]
8. Comments Pertaining to Use Categories
Television and FM Radio Broadcast
In response to comments made by the Arizona Broadcasters
Association (ABA), BLM met with the Administrative Assistant, City of
Phoenix, Parks and Recreation, on October 12, 1994. The purpose of the
meeting was to gather information regarding rental payments paid on
South Mountain, a major communications site within the City of Phoenix,
and administrative procedures used by the city. The ABA suggested that
the proposed rents for Phoenix and Tucson were too high and that
consideration should be given to recently negotiated rents charged by
the Phoenix City Parks Department on South Mountain.
The information obtained was useful in preparing the final rule.
The City of Phoenix grants a license to each user, including tenants
within the facilities. The facility owner and tenants pay individual
rental payments. The BLM final rule establishes a different process.
The facility owner is allowed to manage the facility without any
interference from the agency. BLM will no longer require prior written
approval to allow other parties to use the facility and tenants will be
encouraged to relinquish their separate authorization, thereby reducing
agency billing costs and user administrative costs. Although the
schedule rent for the primary use of the facility is slightly higher,
the additional rent assessed for tenants will be less. Overall, total
revenues generated by the City of Phoenix for multiple user facilities
will be greater than those obtained on a similar BLM facility because
of greater management involvement by the city.
The BLM also considered examples of rent levels in other typical
locations to arrive at the final schedule rents.
Land rents for television facilities in similar markets vary
considerably. There is also a difference between rents paid for
communication sites based on Ranally Metro Area (RMA) populations and
rents based on Nielsen market rankings. In response to the comments,
the final rule lowers the rent for television and FM radio stations
serving areas with an RMA population of 500,000 to 999,999 from $16,000
for television and $12,000 for FM radio to $14,000 and $10,000
respectively.
The proposed rule included FM (frequency modulation) radio only.
Several respondents wondered if AM (amplitude modulation) stations were
also included. The rule has been amended to include BLM authorizations
for the location of AM stations on public lands.
One respondent asked how an AM station would be handled if it is in
an FM broadcast facility. AM and FM radio stations located in the same
facility will be considered two radio stations in determining rent,
with one considered the primary holder and the other as a tenant, even
if co-owned.
In response to the public comments, the following changes have been
included in the final regulation:
AM broadcast radio stations have been included in the
schedule. Rents will be based on 70 percent of the FM scheduled rental
payment in recognition of the lower profit generally derived from AM
broadcasting. Co-located AM and FM stations will pay the full FM radio
rent, plus 25 percent of the AM rent.
The scheduled rent for television and radio stations
serving RMA's with a population of 1,000,000 to 2,499,999 is reduced in
the notice published today elsewhere in this issue of the Federal
Register. Typical cities within this population range are Phoenix, AZ,
San Diego, CA, and Portland, OR.
Broadcast Translator and Low Power Television (LPTV)
Broadcast translators are low-power devices that transmit
television and radio signals originated elsewhere to remote areas, and
LPTV serves the same function, but may originate programming on a
limited basis.
Several respondents suggested that the BLM final rule should adopt
the fee schedule for broadcast translator stations previously approved
by the FS. The FS regional offices had adopted a schedule supported by
the National Translator Association.
The BLM proposed rule was different from the FS rule in two
respects. First, it included LPTV, an FCC-licensed facility that has
limited authority to originate programming, as well as broadcast
translators. Second, it set a schedule to be applied to all markets,
regardless of population, whereas the FS schedule was limited to
communities having a population of less than 60,000. The scheduled
rents for population ranges less than 50,000 were essentially the same
as those adopted by the FS.
Two FM translator operators argued that the proposed rental payment
schedule would have an enormous impact on holders and result in an
elimination or reduction of service. FCC regulations effective June 1,
1994, prohibit television stations from supporting the operation or
maintenance of a translator either directly or indirectly. The new FCC
rules allow the owners to solicit contributions from listeners for the
operation and maintenance of the FM translator. The comments stated
that the recent changes in FCC regulations, along with the proposed
increase in rents imposed by the BLM, will eliminate or reduce service
in some areas.
In response to the comments, we have substantially revised the
schedule for broadcast translator and LPTV in the final rule. Because
of insufficient market information and the concerns expressed in the
comments, the schedule will be applied only to the 4 lowest population
groups. Rental for holders located on sites serving a community of
200,000 population or more will be based on other methods, including
separate appraisals.
Another respondent suggested that a distinction in the rent be made
for the difference between a translator and LPTV. LPTV stations are
essentially translators that are permitted by the FCC to originate
programming. They cannot interfere with full-power stations and are
limited to 10 watts VHF and 1,000 watts UHF. Both LPTV and translators
serve remote areas, and there is little information to suggest that
there should be a difference in land rent between the two uses.
Therefore, BLM has kept LPTV stations and translators in the same
category on the schedule.
One respondent suggested that the term ``Rebroadcast Device'' be
clarified, because microwave relays and repeaters are also rebroadcast
devices. Because of the potential confusion, we have changed the name
of the category to ``Broadcast Translators and Low Power Television''
in the final rule.
Cable Television
Cable television uses on public lands include facilities for
receiving and transmitting television programming over a wired or
wireless network.
Respondents raised concerns about basing the schedule on the total
number of basic subscribers. One suggested that there should be a
provision for increasing the rent as the population served increases.
Another suggested that requiring the holder to report the number of
basic subscribers would exclude those that subscribe to other program
packages that include basic programming. Another suggested that the
standard for determining rent should be based on the actual number of
households subscribing to the cable television service at a given time.
The proposed schedule would have imposed annual reporting
requirements on cable television authorization holders. The comments
indicated potential confusion over the reporting of
[[Page 57066]]
the number of basic subscribers. Also, it is administratively more
complicated for BLM to set different information requirements for each
category of use when preparing a billing. As a result the format of the
cable television schedule was amended in the final rule to reflect the
population of areas served by the cable television station. Cable
television holders serving a metropolitan area should pay rents similar
to those paid by other broadcast users in the same market, based on the
cost to the public and the impact on the land of similar uses, rather
than market shares enjoyed by the holder.
One respondent disagreed with the proposed $2,400 rent for a cable
user having 2,500 or more subscribers. The respondent stated that in
larger markets the proposed rent was too low. He concluded the rents
should be similar to rents paid by broadcasters on sites serving larger
metropolitan areas.
A review of market information revealed that most of the data
available to BLM came from leases in smaller, rural areas. Since in the
final rule the schedule format has been changed to population instead
of number of basic subscribers as in the proposed rule, and because we
have limited comparable lease data for cable use in larger markets, the
cable schedule is limited to those locations serving less than 200,000
population. In larger population markets, rent will be established
through appraisals or other methods.
Commercial Mobile Radio Service (CMRS)
CMRS businesses provide mobile radio service to individual
customers by operating interconnected network of transmitters linking
contiguous coverage areas, and ranging in power from 10 to 1000 watts.
As to CMRS, the BLM proposal included: (1) Rents based on the
population of the largest county predominantly served by the
transmitter, (2) a separate category for facility managers (building
owners), and (3) adjusting rents in most levels to reflect additional
analysis.
Right-of-way holders providing commercial mobile radio service were
strongly opposed to the schedule. Their comments stated that the
schedule was unfair and the rents too high, and that many small
businesses would be driven out of the market. They objected to using
county population as a basis for setting rent, and were opposed to
paying 25 percent of the gross rents received from tenants in the
building. Several likened the revenue sharing proposal to a tax. Others
were dismayed at the prospect of the Government being a partner in
their businesses. Their primary argument was that revenue sharing with
the landowner is not a widespread practice. One comment stated that
since CMRS and facility manager uses were so similar they should be
combined into one category.
In response to the proposed rule, industry groups submitted
extensive market data to support lower schedule rents. Their comments
provided lease data, appraisals, and references to lease information,
and concluded that there was very little difference in the land rent
paid by common carrier and industrial microwave users. Further, they
asserted that the difference between microwave (all types) and mobile
radio-commercial communications was less than 4 percent.
Several respondents objected to the proposed rents in Maricopa
County, Arizona as being too high. One comment provided information
from a real estate listing for a 10,000 square foot undeveloped site on
Shaw Butte, 10 miles north of downtown Phoenix. The site was offered at
$350 per month rent or $4,200 per year. On Usery Mountain east of
Phoenix undeveloped parcels are available for $1,200 per month. The
comment argued that the listed rent on Usery Mountain was too high. The
comment suggested that the fair market rent for sites serving the
Phoenix metropolitan area should be $9,000 per year or 25 percent of
gross rent as it was defined in the proposed rule, whichever is
greater.
Another comment suggested BLM take into consideration rents paid by
local users on South Mountain, a mountain managed by the City of
Phoenix. The comment reported that CMRS providers pay $5,400 per year
on South Mountain, in contrast to the $12,000 proposed in the schedule.
The rent paid to the City of Phoenix on South Mountain was set by
agreement dated February 7, 1992. It is our understanding that the City
of Phoenix Parks and Recreation Board set a rent of $750 per month, or
$9,000 per year, for building owners and $450 per month, or $5,400 per
year, for commercial tenants.
The BLM final schedule sets the rent for CMRS users serving the
Phoenix RMA at $8,000 per year. The rent for CMRS tenants included
under the building owner's authorization is based on 25 percent of the
scheduled rent, or $2,000 per year.
A number of other respondents also provided market data. One
suggested that comparable leases for a CMRS user in Bonneville County,
Idaho, were $1,000, not $1,500 as proposed. This information supports
the scheduled rent of $1,200 for a site serving Idaho Falls.
A user in South Dakota objected to the minimum rents of $600 per
year proposed in rural areas and suggested that a minimum rent of $300
per year would be more equitable. The respondent indicated that on 16
sites in South Dakota rents vary from $50 $300 per year. Market
research by BLM showed that rents at these levels would be too low, and
the comment is not adopted in the final schedules. However, rents can
be adjusted on a case-by-case basis under the final rule, and thus
hardships proven to be caused by the schedule rent can be mitigated.
Comments stated that the commercial mobile radio service (CMRS)
category should have included microwave communication equipment. The
comment stated that CMRS facilities are dependent on microwave
communication equipment similar to cellular telephone facilities. We
agree and have added microwave communications link equipment to the
CMRS definition.
The definition of CMRS contained in the proposed rule included two-
way voice and paging services such as community repeaters, trunked
radio (specialized mobile radio), two-way radio dispatch, and public
switched network (telephone/data) interconnect service. It did not
include cellular telephone or personal communication service (PCS). The
final rule maintains the distinction between the two wireless forms of
communication because market information indicates that cellular
telephone companies pay more for sites than CMRS users.
Based on the comments, the following changes were included in the
final rule, and in the notice accompanying the final rule containing
the rental schedule:
The proposed rental payments have been adjusted to coincide more
closely with rental payments for cellular telephone in larger markets.
In less populated areas, rents for CMRS use are generally less than
rents for cellular telephone, and this relationship has been maintained
in the final rule.
The definition of CMRS has been broadened to include facility
managers and ancillary microwave link equipment.
The definition was also broadened to include microwave link
equipment.
Rents in 6 of the 9 population categories were reduced.
Facility Manager
The proposed rule included a separate category for facility
managers. Because many facility managers do not sell,
[[Page 57067]]
operate, or maintain communication systems or equipment, BLM considered
them separate and distinct from CMRS providers.
The comments received in response to the proposed rule contended
that the proposed rental schedule was discriminatory and inequitable.
The respondents stated that since the facility manager derives income
only from the rental of space in the building, the proposed schedule
would unfairly reduce their gross income by charging a percentage of
all revenues over and above the base rent. By contrast, rents assessed
holders that provide CMRS are not adjusted to reflect their revenues
from services such as dispatch, cellular subscriptions, or broadcast
advertising.
There were questions concerning the similarity between CMRS and
that provided by the facility manager, and possible confusion in
applying the schedule. Others expressed concern that we may have
inadvertently created a loophole by setting the rent for the facility
manager lower than that for CMRS. One comment suggested that the
category be eliminated and incorporated into the CMRS. Another
expressed support for the category of use, but argued that it was
unfair for the Government to take 25 percent of their revenue since
their only source of revenue was from the rental of space in the
facility.
BLM agrees there are many similarities between the CMRS category
and facility manager. To eliminate potential inequities and confusion
in applying the schedule, the facility manager category has been
removed and included under the CMRS category for purposes of setting
the base rent on the empty facility.
Cellular Telephone
Cellular telephone is a means of providing mobile telephone service
to subscribers. Current cellular telephone systems are based on analog
signal transmission. The next generation of cellular telephones will be
based on digital transmission and is sometimes referred to as personal
communication service (PCS).
Two comments suggested that the cellular telephone category should
include systems providing similar wireless telecommunications services
to the public, such as specialized mobile radio. They pointed out that
Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993
directed that similar wireless telecommunications services should be
regulated consistently.
The FCC has made recent regulatory changes to establish a level
playing field for competitive mobile communications market. The Budget
Act outlined three criteria for determining commercial mobile radio
service: the service must be provided for profit, it must be
interconnected to the public switched network, and it must be available
to a substantial portion of the public. Under FCC regulations, mobile
services not included under the CMRS definition are classified as
private mobile radio services (PMRS).
The suggestion in the comments was not adopted in the final rule.
Other wireless communication users were not included under cellular
telephone. In large metropolitan markets cellular telephone companies
and commercial mobile radio providers often pay similar rents for
privately owned space. In small to medium size markets, mobile radio
service providers pay less than cellular telephone companies.
Therefore, for purposes of assessing rent, separate schedules are
included in the notice accompanying the final rule.
Two comments objected to including PCS, a new digital wireless
telephone technology, in the schedule with cellular telephone. One
comment suggested that this category be dropped until the technology is
more fully developed. The other comment explained that the PCS
licensees network will be far more concentrated and require more sites
than a cellular network. The comment warned that it would be a serious
mistake to require PCS licensees to pay the same rental as a cellular
carrier.
PCS is similar to cellular telephone services. The major
differences are that it is low power and provides coverage to a smaller
area. The service is not yet available. In December 1994, the FCC began
auctioning licenses, and it is likely that PCS service will be
available in some markets as early as mid-1996.
Therefore, we have removed PCS from the cellular telephone
definition. Once we know what the site requirements will be for PCS
facilities, we will consider amending the regulation to include them.
However, we have broadened the definition of cellular telephone to
include other technologies in the event PCS facilities prove to be
similar. It is our intent to apply the schedule to similar, emerging
technologies when practical. Meanwhile, appraisals or other methods
will be used to set rents for PCS and other advanced technologies.
Another respondent suggested establishing a separate rent category
for microcell facilities. The comment letter explained that these
facilities efficiently serve small, distinct communities. In contrast
to conventional cellular facilities that operate at 10 watts and use
larger antenna, the microcell antenna is much smaller, usually mounted
on a pole, and the equipment operates at 5 watts or less. It also
suggested that the rent for these facilities be $2,500 per year. We
have not adopted the suggestion because it cannot be incorporated in
the final rule without further opportunity for public comment.
In response to the comments, we have made the following changes:
We removed personal communication service use from the definition
of cellular telephone.
Rental payments in the top population levels were adjusted to
coincide with rents paid by CMRS users.
Adjustments were made in the proposed rent to reflect more recent
market information.
Private Mobile Radio
The definition of ``Private Mobile Communications'' was
inadvertently omitted from the proposed rule, but this use was
discussed in the preamble and included in the proposed rent schedule.
In the final rule, this category of use has been renamed Private Mobile
Radio (PMR), a discussion of it has been inserted as section 2803.1-
2(e)(1)(vi), and the remaining paragraphs have been redesignated.
Holders in this category are subject to a rent if they own and operate
the facility for their own use. If they are located in an authorized
facility, they are considered customers and no additional amount will
be assessed for their use.
One comment pointed out that the proposed rule did not make it
clear which use is primary for holders using both microwave and private
mobile communications. Many microwave sites are also used for private
mobile communications. To eliminate possible confusion, the comment
suggested that when microwave and mobile facilities are at the same
site, the primary use should be defined as private mobile if the
microwave ends at the site and is primarily for the control of the
mobile facility.
We agree. If the microwave and mobile radio are ancillary to each
other, the holder should not be subject to paying separate rents. To
correct the potential problem, we have broadened the definition of PMR
to include other equipment for the control of the facility, such as
private local radio dispatch, private paging services, and ancillary
microwave communications equipment for facility control.
[[Page 57068]]
Microwave
One comment observed that there is little difference in the
schedule rent for private or common carrier microwave facilities and
suggested that the two categories be combined. We agree with the
comment and have consolidated the two categories in an effort to
simplify implementation.
Other Communication Uses
The rental schedule for ``other communication uses'' was intended
to include small, unobtrusive, low-power uses that monitor or provide
communication service to a small number of customers. The definition of
``other communication uses'' has been clarified to include low-power
monitoring or controlling devices. The definition explicitly excludes
communication devices and related facilities appurtenant to either a
BLM oil and gas lease or pipeline right-of-way authorized under the
Mineral Leasing Act.
Holders in this category are subject to a rent if they own and
operate the facility for their own use. If they are located in a
facility authorized to another holder, they are considered customers
and no additional amount will be assessed for their use.
The definition of other communication uses has been rewritten to
include FCC-licensed private communication uses such as amateur radio,
personal/private receive-only antennas, natural resource and
environmental monitoring equipment, and other low power monitoring or
controlling devices, excluding communication devices and related
facilities appurtenant to either a BLM oil and gas lease or pipeline
right-of-way authorized pursuant to the Mineral Leasing Act of 1920.
Passive reflector has been removed from the schedule--the use is not
common on the public lands, and appropriate rent will be determined
based on appraisals or other methods.
The rental schedule has been changed to correct a misprint for
amateur radio and remove the local exchange carrier use from this
category. The amateur radio use rental should be $75 instead of $.75.
The local exchange carrier category of use has been removed from
other uses in the final rule, because of a misunderstanding regarding
the appropriate name for this service. The term ``local exchange
carrier'' is generally understood to mean the local telephone company.
It was our intent that we include basic exchange telephone radio
service (BETRS), a microwave radio service that provides telephone
service to remote areas. We were unable to get sufficient information
to establish a schedule rent for this use, and appropriate rent will be
determined based on appraisals or other methods.
Impact of Schedule on Existing Rental Payments
Several selected authorizations were reviewed in Idaho, New Mexico,
Arizona, and California to assess the potential impact of the final
rule on existing rental payments.
Impacts on current rents varied because current rents vary
considerably. In some areas communication rental payments have been low
historically or have not been updated for many years. In other areas,
rental payments that have been updated recently by site-specific
appraisals are higher than those in the final rule. Complicating this
analysis are assumptions about the number of tenants who will
relinquish their authorization and no longer pay full rent, and
questions about how to determine the number of tenants in existing
buildings. As a consequence, it is difficult to draw any reliable
conclusions as to what the impact may be on total revenues.
There are situations where rental payments based on a schedule may
be substantially lower than the current rent. When this occurs the
authorized officer may use provisions of section 2803.1-2(c)(1)(iv).
Rental Determination
Rental payments for communication sites will be calculated as
follows:
1. The authorized officer requests that the holder provide a
certified statement by October 15 of each year containing a list of
tenants, by category of use, in the facility on September 30 of that
year.
2. Using information submitted by the holder, the schedule will be
used to determine the highest schedule use.
If the highest schedule rent is a ``tenant'' rent, the ``tenant''
rent becomes the base rent and the building owner's schedule rent is
used as a tenant rent for calculating the total rent for the facility.
Tenants located in a CMRS facility who provide internal and private
communication services are considered customers, not tenants, and
therefore no additional amount is assessed for their use. This is only
applicable to CMRS providers holding a right-of-way authorization.
3. The base rent will be calculated from the schedule based on the
category of use and the population of the community served by the site,
or determined by appraisal or other methods, such as negotiating rents
for new sites, extrapolating from current rent paid, or using
comparable lease information provided by the holder, in appropriate
circumstances.
4. To the base rent, add 25 percent of the schedule rent applicable
to each tenant located in the facility on September 30 of that year, to
get the total rent.
5. Compare the total rent to existing rent and determine whether
the holder is eligible for phase-in. If eligible, calculate the first
year's rent.
6. Compare total estimated rent against expected or current rent to
determine whether the rent should be exempted from the schedule.
7. If the rent as calculated from the schedule is not applicable,
it will be set following an appraisal or using other methods as
determined by the authorized officer.
The following examples show how schedule rents are calculated:
Example 1: A communications facility serving an RMA population
of 200,000, with CMRS provider (building owner), one TV broadcaster,
two FM broadcasters, one cellular telephone, and two private mobile
radio users.
Base rent = $6,000 (TV broadcast is the highest value use in the
facility) + $750 (25% CMRS provider (building owner)), + $2,000 (25%
of two FM broadcasters) + $1,000 (25% cellular telephone + $0.00 (no
charge for PMRS)) = Total first year rent for the facility: $9,750.
Example 2: A microwave facility located in a remote, sparsely
populated community with no tenants in the facility would pay a
first year rent of $1,500.
Example 3: A television station located on a site serving a RMA
listed community with a population of 60,000 with two tenants; a FM
radio station, and a paging company. Current rent is $1,000.
Base rent = $3,000 (television station is highest schedule rent)
+ $500 (25% of schedule rent for FM station) + $300 (25% of $1,200
since paging is covered under CMRS) = $3,800. $3,800 (schedule
rent)-$1,000 (current rent) = $2,800. First year's rent is $1,560
($1,000 + one fifth of $2,800).
Implementation Plan
The BLM plans the following to implement the final rule:
1. The BLM and FS will adopt a format for communication use
authorizations to be used by both agencies. The new authorization will
allow the holder to have tenants in the facility, eliminating the
requirement for prior written consent of the agency.
2. A notice will be sent to all authorized communication site
users. This notice will advise them of regulatory changes affecting
assessment of communication site rental payments,
[[Page 57069]]
and the option to convert to a new authorization. Holders will have 60
days to respond to the authorized officer indicating their intention.
3. Tenants in a facility who have a separate BLM authorization will
be given an option to retain their separate authorization, or
relinquish their authorization and be included in the facility owner's
authorization. Tenants electing to maintain their existing
authorization will be billed the full rental in accordance with the
schedule.
4. Holders will be notified by December 1 each year what their rent
would be for the next calendar year.
Procedural Matters
The principal author of this final rule is David Cavanaugh of the
Special Area/Land Tenure Team, assisted by the Regulatory Management
Team, BLM. Other persons who have made significant contributions
include Ellen Heath and Mark Scheibel of the FS, Ron Appel, Dan Nowell,
Larry Shiflet, and Bil Weigand of BLM.
It is hereby determined that this final rule does not constitute a
major Federal action significantly affecting the quality of the human
environment, and that no detailed statement pursuant to Section
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C)) is required. The Bureau of Land Management has determined
that this rule is categorically excluded from further environmental
review pursuant to 516 Departmental Manual (DM), Chapter 2, Appendix 1,
Item 1.10, being a regulation of an administrative, financial, legal,
technical, or procedural nature, and that the rule will not
significantly affect the 10 criteria for exceptions listed in 516 DM 2,
Appendix 2. Pursuant to the Council on Environmental Quality
regulations (40 CFR 1508.4) and environmental policies and procedures
of the Department of the Interior, ``categorical exclusions'' means a
category of actions which do not individually or cumulatively have a
significant effect on the human environment and which have been found
to have no such effect in procedures adopted by a Federal agency and
for which neither an environmental assessment nor an environmental
impact statement is required.
This rule has been reviewed under Executive Order 12866. The BLM
expects the rule will result in savings estimated at $3,000,000 per
rent cycle. These savings will result primarily from a significant
reduction in the number of communication site appraisal reports that
will have to be prepared and reviewed. Under current policy rents for
communication sites are established based upon appraisals, which are to
be updated every five years. Through the establishment of rental
schedules applicable to categories of communications users, the final
rule will eliminate the need for individual appraisal reports for most
communication site rights-of-way. The BLM estimates appraisals of this
type to cost approximately $2,000 each. With more than 1,500
communication site rights-of-way, the savings for each cycle of rent is
estimated to be more than $3,000,000.
The BLM expects the rule to bring annual rental payment charged
holders to fair market value as required by statute. The current rental
payments for most current holders have not been reviewed or updated in
the last five years, with many not adjusted for 10-15 years. The
payments that would be placed in effect by this final rule would bring
existing rental charges for communication holders on public lands more
into line with those who lease land from private landowners. Revenues
are expected to initially increase modestly to $2,000,000 annually and
keep pace with inflation. Increases may be greater depending on the
number of tenants in the building that would be assessed a rent under
the schedule. At this time we are unable to project the impact of
charging holders for tenants since we currently have no data on tenants
in authorized facilities.
The Department has determined under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) that the rule will not have a significant
economic impact on a substantial number of small entities. The final
rule, with its fee schedule, affects only that segment of the
communications industry operating on the public lands. There are 57 FM
radio broadcast sites, 26 television broadcasting facilities, and
approximately 3,200 other permits in effect on these lands. Available
records do not indicate how many of these permits are held by small
entities. The phase-in of annual fees proposed in this rule will allow
any small entities that may be affected to adjust to the new fees over
a period of time and thereby minimize the risk of adverse impact due to
the magnitude of some fee increases under the rule.
Because the rule will result in no taking of private property and
no impairment of property rights, the Department certifies that this
rule does not represent a governmental action capable of interference
with constitutionally protected property rights, as required by
Executive Order 12630.
The Department has certified to the Office of Management and Budget
that these regulations meet the applicable standards provided in
Sections 2(a) and 2(b)(2) of Executive Order 12778.
The information collection requirements contained in this rule have
been approved by the Office of Management and Budget under 44 U.S.C.
3501 et seq. and assigned clearance numbers 1004-0102 and 1004-0107,
with the exception of the annual collection of information concerning
tenants and tenants' category of use from right-of-way holders.
In compliance with 5 CFR 1320.8(d), BLM is required to provide 60-
day notice in the Federal Register concerning a proposed collection of
information to solicit comments on (a) whether the proposed collection
of information is necessary for the proper performance of the functions
of the agency, including whether the information will have practical
utility; (b) the accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (c) ways to enhance the quality,
utility, and clarity of the information to be collected; and (d) ways
to minimize the burden of the collection of information on those who
are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology. Accordingly, none of the
information proposed to be collected as described below will be
required until comments have been received and analyzed and approval
has been obtained from OMB under 44 U.S.C. 3501 et seq. and a clearance
number assigned.
In this rule, BLM is establishing procedures for setting rent for
communication uses located on lands administered by BLM as required by
FLPMA. Generally, multiple-user facilities located on public lands
involve tenants, and under this rule, the holder will be assessed an
additional amount for certain categories of tenants. Ignoring tenant
use of the facility when setting rent, while allowing the holder nearly
exclusive use of the site, prevents recovery of fair market value.
Thus, BLM's statutory responsibility to obtain fair market value for
the use of public lands includes obtaining a rent for tenant uses in
the facility.
In response to comments on the proposed rule, BLM changed the
original proposal (at Sec. 2803.1-2(d)(6) in the final rule) from
charging 25 percent of the gross rent received from tenants
[[Page 57070]]
in the facility because it would be too intrusive and difficult to
implement. The final rule has been amended to charge the holder of the
right-of-way the full schedule rent for the highest valued use in the
facility, plus 25 percent of the schedule rent for the other uses. To
implement this provision, BLM must obtain from the holder a listing of
tenants by category of use on an annual basis. The information
collected will allow BLM to calculate the rent for the communications
facility. The information is mandatory to obtain a benefit, use of
public lands for communications facilities.
The public reporting burden for this collection of information is
estimated to average one hour per response. The respondents are holders
of right-of-way grants or temporary use permits. The estimated number
of respondents is 1,500. The estimated number of responses per
respondent is one per year. The estimated total annual burden on
respondents is 1,500 hours.
Elsewhere in this issue of the Federal Register, BLM is publishing
a separate notice soliciting comments on this proposed information
collection.
List of Subjects
43 CFR Part 2800
Communications, Electric power, Highways and roads, Pipelines,
Public lands--rights-of-way, Reporting and recordkeeping requirements.
43 CFR Part 2810
Public lands--rights-of-way, Reporting and recordkeeping
requirements.
43 CFR Part 2880
Public lands--rights-of-way, Reporting and recordkeeping
requirements.
Dated: October 2, 1995.
Sylvia V. Baca,
Acting Assistant Secretary of the Interior.
Under the authority of Sections 303, 310, and 501-511 of the
Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733, 1740,
and 1760-1771), and for the reasons stated in the preamble, 43 CFR
Parts 2800, 2810, and 2880 are amended as follows:
PART 2800--[AMENDED]
1. The Note at the beginning of Group 2800 is removed.
2. The authority citation for part 2800 continues to read as
follows:
Authority: 43 U.S.C. 1733, 1740, and 1760-1771.
Subpart 2800--Rights-of-Way; General
3. Section 2800.0-5 is amended by revising paragraph (j) and adding
paragraphs (aa) through (cc) to read as follows:
Sec. 2800.0-5 Definitions.
* * * * *
(j) Facility means an improvement constructed or to be constructed
or used within a right-of-way pursuant to a right-of-way grant. For
purposes of communication site rights-of-way, facility means the
building, tower, and/or other related incidental improvements
authorized under terms of the right-of-way grant.
* * * * *
(aa) Base rent means the amount required to be paid by the holder
of a right-of-way on public lands for the communication use with the
highest assigned schedule rent in the facility, in accordance with
terms of the right-of-way grant.
(bb) Tenant means an occupant who rents space in a facility and
operates communication equipment in the facility to resell the
communication service to others for a profit. For purposes of
calculating rent, the term ``tenant'' does not include private mobile
radio or those uses included in the category of Other Communication
Uses.
(cc) Customer means a person who is paying the facility owner or
tenant for communication services, and is not reselling communication
services to others. Persons or entities benefiting from private or
internal communication uses located in a CMRS facility are considered
customers for purposes of calculating rent.
4. Section 2800.0-9 is added to read as follows:
Sec. 2800.0-9 Information collection.
(a) The information collection requirements contained in part 2800
of Group 2800 have been approved by the Office of Management and Budget
under 44 U.S.C. 3507 and assigned clearance numbers 1004-0102 and 1004-
0107. The information is being collected to permit the authorized
officer to determine if use of the public lands should be granted for
rights-of-way grants or temporary use permits. The information will be
used to make this determination. A response is required to obtain a
benefit.
(b) Public reporting burden for this information is estimated to
average 41.8 hours per response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this burden estimate
or any other aspect of this collection of information, including
suggestions for reducing the burden, to the Information Collection
Clearance Officer (873), Bureau of Land Management, Washington, DC
20240, and the Office of Management and Budget, Paperwork Reduction
Project, 1004-0102 or 1004-0107, Washington, DC 20503.
Subpart 2801--Terms and Conditions of Rights-of-Way Grants and
Temporary Use Permits
5. Section 2801.1-1 is amended by revising the first sentence of
paragraph (b) and adding a sentence to the end of paragraph (f) to read
as follows:
Sec. 2801.1-1 Nature of right-of-way interest.
* * * * *
(b) A right-of-way grant or temporary use permit may be used only
for the purposes authorized. * * *
* * * * *
(f) * * * However, the holder of a right-of-way grant for
communication purposes may authorize other parties to use a facility,
without prior written consent of the authorized officer, if so provided
by terms and conditions of the grant.
* * * * *
Subpart 2803--[Amended]
6. Section 2803.1-2 is amended by revising paragraph (b)(1)(i),
paragraph (c)(1)(iv), the introductory text of paragraph (v), and
paragraph (c)(2), by redesignating paragraphs (c)(3)(i), (c)(3)(ii),
(c)(4), (c)(5), and (d) as paragraphs (e)(1), (e)(2), (f), (g), and (h)
respectively, and by adding paragraph (d) and revising newly designated
paragraph (e), to read as follows:
Sec. 2803.1-2 Rental.
* * * * *
(b)(1) * * *
(i) The holder is a Federal, State, or local government, or agency
or instrumentality thereof, except parties who are using the space for
commercial purposes, and municipal utilities and cooperatives whose
principal source of revenue is customer charges:
* * * * *
(c)(1) * * *
(iv) Rental for the ensuing calendar year for any single right-of-
way grant or temporary use permit is the rental per acre from the
current schedule multiplied by the number of acres embraced in the
grant or permit, unless such rental is reduced or waived as
[[Page 57071]]
provided in paragraph (b)(2) of this section.
(v) The authorized officer will use the linear rental schedule
unless the authorized officer determines:
* * * * *
(2)(i) Existing linear right-of-way grants and temporary use
permits may be made subject to the schedule provided by this paragraph
upon reasonable notice to the holder.
(ii) Where the new annual rental for linear rights-of-way exceeds
$100 and is more than a 100 percent increase over the current rental,
the amount of increase in excess of the 100 percent increase shall be
phased in by equal increments, plus the annual adjustment, over a 3
year period.
* * * * *
(d) The annual rental payment for communication uses listed in
paragraph (d)(1) of this section is based on rental payment schedules.
The rental schedules apply to right-of-way holders and tenants
authorized to operate and maintain communication facilities on public
lands. They do not apply to holders who are public telecommunications
service operators providing public television or radio broadcast
services granted a waiver under Sec. 2803.1-2(b)(2)(i). Nor do they
apply to communication site uses, facilities, or devices located
exclusively within the exterior boundaries of an oil and gas lease and
directly associated with the operations of the oil and gas lease
(subpart 2880).
(1) The schedules are applicable to communication uses that provide
the following services:
(i) Television broadcast includes right-of-way holders that operate
FCC-licensed facilities used to broadcast UHF and VHF audio and video
signals for general public reception, and communication equipment
directly related to the operation, maintenance, and monitoring of the
use. This category does not include holders licensed by the FCC to
operate Low Power Television (LPTV) or rebroadcast devices such as
translators, or transmitting devices such as microwave relays serving
broadcast translators.
(ii) AM and FM radio broadcast includes rights-of-way that contain
FCC-licensed facilities primarily used to broadcast amplitude
modulation (AM) or frequency modulation (FM) audio signals for general
public reception, and communication equipment directly related to the
operation, maintenance, and monitoring of the use. This category is not
applicable to holders licensed by the FCC as a low-power FM radio. This
category also does not include rebroadcast devices such as translators,
boosters, or microwave relays serving broadcast translators.
(iii) The broadcast translator and low power television category
includes FCC-licensed translators and low power television, low power
FM radio, and communication equipment directly related to the
operation, maintenance, or monitoring of the use. Microwave facilities
used in conjunction with LPTV and broadcast translators are included in
this category.
(iv) Cable television includes FCC-licensed facilities that
transmit video programming to multiple subscribers in a community over
a wired or wireless network, and communication equipment directly
related to the operation, maintenance, or monitoring of the use. This
category does not include rebroadcast devices that retransmit
television signals of one or more television broadcast stations,
personal or internal antenna systems such as private systems serving
hotels or residences.
(v) Commercial mobile radio service/facility manager includes FCC-
licensed commercial mobile radio facilities or their holders providing
mobile communication service to individual customers, and communication
equipment directly related to the operation, maintenance, or monitoring
of the use. Such services generally include two-way voice and paging
services such as community repeaters, trunked radio (specialized mobile
radio), two-way radio dispatch, public switched network (telephone/
data) interconnect service, microwave communications link equipment.
Some holders in this category may not hold FCC licenses or operate
communication equipment, but may lease building, tower, and related
facility space to a variety of tenants as a part of their business
enterprise, and may act as facility managers.
(vi) Private Mobile Radio includes FCC-licensed private mobile
radio systems primarily used by a single entity for mobile internal
communications, and communication equipment directly related to the
operation, maintenance, or monitoring of the use. This use is not sold
and is exclusively limited to the user in support of business,
community activities, or other organizational communication needs.
Services generally include private local radio dispatch, private paging
services, and ancillary microwave communications equipment for the
control of the mobile facilities.
(vii) Cellular telephone includes FCC-licensed systems and related
technologies used for mobile communications using a combination of
radio and telephone switching technology, and providing public switched
network services to fixed and mobile users within a defined geographic
area. The system consists of cell sites containing transmitting and
receiving antennas, cellular base station radio, telephone equipment,
and often microwave communications link equipment, and communication
equipment directly related to the maintenance and monitoring of the
use.
(viii) Microwave includes FCC-licensed facilities used for long-
line intrastate and interstate public telephone, television,
information, and data transmissions, or used by pipeline and power
companies, railroads, and land resource management companies in support
of the holder's primary business. Also included is communication
equipment directly related to the operation, maintenance, or monitoring
of the use.
(ix) Other communication uses include holders of FCC-licensed
private communication uses such as amateur radio, personal/private
receive-only antennas, passive reflectors, natural resource and
environmental monitoring equipment, and other small, low-power devices
used to monitor or control remote activities.
(2)(i) The rental schedules will be adjusted annually based on the
U.S. Department of Labor Consumer Price Index for All Urban Consumers
(CPI-U, U.S. City Average, published in July of each year), and Ranally
Metro Area population rankings. Annual adjustments based on the CPI-U
will be limited to no more than 5 percent. The rental schedule will be
reviewed for possible update no later than 10 years after December 13,
1995, and at least every 10 years thereafter, to ensure that the
schedule reflects fair market value.
(ii) Rights-of-way may be reviewed on a case-by-case basis 10 years
after issuance or beginning [10 years and 30 days after the date of
publication], whichever is later, and no more often than every 5 years
thereafter, on holder request, to determine whether rents are
appropriate.
(3) Rent is based on the actual users in the facility. For a
facility with a single user, the base rent is the schedule rent for the
use. Base rent for authorizations that include more than one user will
be based on the use in the facility with the highest rent as shown on
the schedule. An additional amount will be assessed based on 25 percent
of the schedule rent for all other users. (A facility manager is not
considered a separate use for purposes of calculating
[[Page 57072]]
the additional amount for tenants in the facility.)
(4) Increases in base rental payments over 1996 levels in excess of
$1,000 will be phased in over a 5-year period. In 1997, the rental
payment will be the 1996 rental, plus $1,000. The amount exceeding
$1,000 will be divided into 4 equal installments, and beginning in 1998
the installment, plus the annual adjustment in the total rent, will be
added to the previous year's rent.
(5) Annual rental payments will be calculated and provided to the
holder by December 31 for each ensuing calendar year based on the
schedules published from time to time as necessary in the Federal
Register.
(6) Also, the right-of-way holder must submit a certified statement
by October 15 of each year listing tenants in the facility and the
category of use for each tenant as of September 30 of that year, and
pay 25 percent of the schedule rent for the category of use. Tenants
occupying space in the facility under terms of the holder's right-of-
way authorization will not be required to have a separate BLM
authorization.
(7) Other methods may be used to set rental payments for
communication uses when the authorized officer determines one of the
following:
(i) The holder is eligible for a waiver or reduction in rent in
accordance with Sec. 2803.1-2(b)(2);
(ii) Payment of the rent will cause undue hardship under
Sec. 2803.1-2(b)(2)(iv);
(iii) The original right-of-way authorization has been or will be
issued pursuant to a competitive bidding process;
(iv) The State Director concurs in a determination made by the
authorized officer that the expected rent exceeds the schedule rent by
5 times, or the communication site serves a population of 1 million or
more and the expected rent for the communication use is more than
$10,000 above the schedule rent; or
(v) The communication facilities are ancillary to and authorized
under a right-of-way grant for a linear facility. In such cases, rent
for the associated communication facilities is to be determined in
accordance with the linear fee schedule.
(e)(1) The rental for right-of-way grants and temporary use permits
not covered by the right-of-way schedule in Sec. 2803.1-2(d)(5) will be
determined by the authorized officer and paid annually in advance.
Rental for communication site rights-of-way not covered by the
schedule, except those issued pursuant to Section 28 of the Mineral
Leasing Act (30 U.S.C. 185), will be based on comparative market
surveys, appraisals, or other reasonable methods. All such rental
determinations shall be documented, supported, and approved by the
authorized officer. Where the authorized officer determines that a
competitive interest exists for site type right-of-way grants such as
for wind farms, communication sites, etc., rental may be determined
through competitive bidding procedures set out in Sec. 2803.1-3.
(2) To expedite the processing of any grant or permit covered by
paragraph (e)(1) of this section, the authorized officer may estimate
rental and collect a deposit in advance with the agreement that upon
completion of a rental value determination, the advance deposit will be
adjusted according to the final fair market rental value determination.
* * * * *
PART 2810--TRAMLOADS AND LOGGING ROADS
Subpart 2812--Over O. and C. and Coos Bay Revested Lands
7. Section 2812.0-9 is added to read as follows:
Sec. 2812.0-9 Information collection.
The information collection requirements contained in part 2810 of
Group 2800 have been approved by the Office of Management and Budget
under 44 U.S.C. 3507 and assigned clearance numbers 1004-0102 and 1004-
0107. The information is being collected to permit the authorized
officer to determine if use of the public lands should be granted for
rights-of-way grants or temporary use permits. The information will be
used to make this determination. A response is required to obtain a
benefit.
PART 2880--[AMENDED]
Subpart 2880--Oil and Natural Gas Pipelines and Related Facilities:
General
8. Section 2880.0-9 is added to read as follows:
Sec. 2880.0-9 Information collection.
The information collection requirements contained in part 2880 of
Group 2800 have been approved by the Office of Management and Budget
under 44 U.S.C. 3507 and assigned clearance numbers 1004-0102 and 1004-
0107. The information is being collected to permit the authorized
officer to determine if use of the public lands should be granted for
rights-of-way grants or temporary use permits. The information will be
used to make this determination. A response is required to obtain a
benefit.
[FR Doc. 95-27619 Filed 11-9-95; 8:45 am]
BILLING CODE 4310-84-P
