43 U.S.C. § 1764 — General requirements

Page 576 TITLE 43—PUBLIC LANDS § 1763 (d) Fund for user fees for delayed payment to grantor Whenever the agreement under which the United States has obtained for the use of, or in connection with, the public lands a right-of-way or easement for a road or an existing road or the right to use an existing road provides for de- layed payments to the Government’s grantor, any fees or other collections received by the Secretary for the use of the road may be placed in a fund to be available for making payments to the grantor. (Pub. L. 94–579, title V, § 502, Oct. 21, 1976, 90 Stat. 2777.) § 1763. Right-of-way corridors; criteria and pro- cedures applicable for designation In order to minimize adverse environmental impacts and the proliferation of separate rights- of-way, the utilization of rights-of-way in com- mon shall be required to the extent practical, and each right-of-way or permit shall reserve to the Secretary concerned the right to grant addi- tional rights-of-way or permits for compatible uses on or adjacent to rights-of-way granted pursuant to this Act. In designating right-of- way corridors and in determining whether to re- quire that rights-of-way be confined to them, the Secretary concerned shall take into consid- eration national and State land use policies, en- vironmental quality, economic efficiency, na- tional security, safety, and good engineering and technological practices. The Secretary con- cerned shall issue regulations containing the criteria and procedures he will use in desig- nating such corridors. Any existing transpor- tation and utility corridors may be designated as transportation and utility corridors pursuant to this subsection without further review. (Pub. L. 94–579, title V, § 503, Oct. 21, 1976, 90 Stat. 2778.) Editorial Notes REFERENCES IN TEXT This Act, referred to in text, is Pub. L. 94–579, Oct. 21, 1976, 90 Stat. 2743, known as the Federal Land Policy and Management Act of 1976. For complete classifica- tion of this Act to the Code, see Tables. Executive Documents TRANSFER OF FUNCTIONS Enforcement functions of Secretary or other official in Department of Agriculture, insofar as they involve lands and programs under jurisdiction of that Depart- ment, related to compliance with land use permits for other associated land uses issued under sections 1761, and 1763 to 1771 of this title, and such functions of Sec- retary or other official in Department of the Interior related to compliance with land use permits for tem- porary use of public lands and other associated land uses, issued under sections 1732, 1761, and 1763 to 1771 of this title, with respect to pre-construction, construc- tion, and initial operation of transportation systems for Canadian and Alaskan natural gas transferred to Federal Inspector, Office of Federal Inspector for Alas- ka Natural Gas Transportation System, until first an- niversary of date of initial operation of Alaska Natural Gas Transportation System, see Reorg. Plan No. 1 of 1979, §§ 102(e), (f), 203(a), 44 F.R. 33663, 33666, 93 Stat. 1373, 1376, effective July 1, 1979, set out in the Appendix to Title 5, Government Organization and Employees. Of- fice of Federal Inspector for the Alaska Natural Gas Transportation System abolished and functions and au- thority vested in Inspector transferred to Secretary of Energy by section 3012(b) of Pub. L. 102–486, set out as an Abolition of Office of Federal Inspector note under section 719e of Title 15, Commerce and Trade. Func- tions and authority vested in Secretary of Energy sub- sequently transferred to Federal Coordinator for Alas- ka Natural Gas Transportation Projects by section 720d(f) of Title 15. § 1764. General requirements (a) Boundary specifications; criteria; temporary use of additional lands The Secretary concerned shall specify the boundaries of each right-of-way as precisely as is practical. Each right-of-way shall be limited to the ground which the Secretary concerned de- termines (1) will be occupied by facilities which constitute the project for which the right-of- way is granted, issued, or renewed, (2) to be nec- essary for the operation or maintenance of the project, (3) to be necessary to protect the public safety, and (4) will do no unnecessary damage to the environment. The Secretary concerned may authorize the temporary use of such additional lands as he determines to be reasonably nec- essary for the construction, operation, mainte- nance, or termination of the project or a portion thereof, or for access thereto. (b) Terms and conditions of right-of-way or per- mit Each right-of-way or permit granted, issued, or renewed pursuant to this section shall be lim- ited to a reasonable term in light of all cir- cumstances concerning the project. In deter- mining the duration of a right-of-way the Sec- retary concerned shall, among other things, take into consideration the cost of the facility, its useful life, and any public purpose it serves. The right-of-way shall specify whether it is or is not renewable and the terms and conditions ap- plicable to the renewal. (c) Applicability of regulations or stipulations Rights-of-way shall be granted, issued, or re- newed pursuant to this subchapter under such regulations or stipulations, consistent with the provisions of this subchapter or any other appli- cable law, and shall also be subject to such terms and conditions as the Secretary concerned may prescribe regarding extent, duration, sur- vey, location, construction, maintenance, trans- fer or assignment, and termination. (d) Submission of plan of construction, oper- ation, and rehabilitation by new project ap- plicants; plan requirements The Secretary concerned prior to granting or issuing a right-of-way pursuant to this sub- chapter for a new project which may have a sig- nificant impact on the environment, shall re- quire the applicant to submit a plan of construc- tion, operation, and rehabilitation for such right-of-way which shall comply with stipula- tions or with regulations issued by that Sec- retary, including the terms and conditions re- quired under section 1765 of this title. Page 577 TITLE 43—PUBLIC LANDS § 1764 (e) Regulatory requirements for terms and condi- tions; revision and applicability of regula- tions The Secretary concerned shall issue regula- tions with respect to the terms and conditions that will be included in rights-of-way pursuant to section 1765 of this title. Such regulations shall be regularly revised as needed. Such regu- lations shall be applicable to every right-of-way granted or issued pursuant to this subchapter and to any subsequent renewal thereof, and may be applicable to rights-of-way not granted or issued, but renewed pursuant to this subchapter. (f) Removal or use of mineral and vegetative ma- terials Mineral and vegetative materials, including timber, within or without a right-of-way, may be used or disposed of in connection with con- struction or other purposes only if authorization to remove or use such materials has been ob- tained pursuant to applicable laws or for emer- gency repair work necessary for those rights-of- way authorized under section 1761(c) of this title. (g) Rental payments; amount, waiver, etc. The holder of a right-of-way shall pay in ad- vance the fair market value thereof, as deter- mined by the Secretary granting, issuing, or re- newing such right-of-way. The Secretary con- cerned may require either annual payment or a payment covering more than one year at a time except that private individuals may make at their option either annual payments or pay- ments covering more than one year if the an- nual fee is greater than one hundred dollars. The Secretary concerned may waive rentals where a right-of-way is granted, issued or renewed in consideration of a right-of-way conveyed to the United States in connection with a cooperative cost share program between the United States and the holder. The Secretary concerned may, by regulation or prior to promulgation of such regulations, as a condition of a right-of-way, re- quire an applicant for or holder of a right-of-way to reimburse the United States for all reason- able administrative and other costs incurred in processing an application for such right-of-way and in inspection and monitoring of construc- tion, operation, and termination of the facility pursuant to such right-of-way: Provided, how- ever, That the Secretary concerned need not se- cure reimbursement in any situation where there is in existence a cooperative cost share right-of-way program between the United States and the holder of a right-of-way. Rights-of-way may be granted, issued, or renewed to a Federal, State, or local government or any agency or in- strumentality thereof, to nonprofit associations or nonprofit corporations which are not them- selves controlled or owned by profitmaking cor- porations or business enterprises, or to a holder where he provides without or at reduced charges a valuable benefit to the public or to the pro- grams of the Secretary concerned, or to a holder in connection with the authorized use or occu- pancy of Federal land for which the United States is already receiving compensation for such lesser charge, including free use as the Sec- retary concerned finds equitable and in the pub- lic interest. Such 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 moneys received for reim- bursement of reasonable costs shall be deposited with the Treasury in a special account and are hereby authorized to be appropriated and made available until expended. Rights-of-way shall be granted, issued, or renewed, without rental fees, for electric or telephone facilities eligible for fi- nancing pursuant to the Rural Electrification Act of 1936, as amended [7 U.S.C. 901 et seq.], de- termined without regard to any application re- quirement under that Act, or any extensions from such facilities: Provided, That nothing in this sentence shall be construed to affect the au- thority of the Secretary granting, issuing, or re- newing the right-of-way to require reimburse- ment of reasonable administrative and other costs pursuant to the second sentence of this subsection. (h) Liability for damage or injury incurred by United States for use and occupancy of rights-of-way; indemnification of United States; no-fault liability; amount of damages (1) The Secretary concerned shall promulgate regulations specifying the extent to which hold- ers of rights-of-way under this subchapter shall be liable to the United States for damage or in- jury incurred by the United States caused by the use and occupancy of the rights-of-way. The reg- ulations shall also specify the extent to which such holders shall indemnify or hold harmless the United States for liabilities, damages, or claims caused by their use and occupancy of the rights-of-way. (2) Any regulation or stipulation imposing li- ability without fault shall include a maximum limitation on damages commensurate with the foreseeable risks or hazards presented. Any li- ability for damage or injury in excess of this amount shall be determined by ordinary rules of negligence. (i) Bond or security requirements Where he deems it appropriate, the Secretary concerned may require a holder of a right-of- way to furnish a bond, or other security, satis- factory to him to secure all or any of the obliga- tions imposed by the terms and conditions of the right-of-way or by any rule or regulation of the Secretary concerned. (j) Criteria for grant, issue, or renewal of right- of-way The Secretary concerned shall grant, issue, or renew a right-of-way under this subchapter only when he is satisfied that the applicant has the technical and financial capability to construct the project for which the right-of-way is re- quested, and in accord with the requirements of this subchapter. (Pub. L. 94–579, title V, § 504, Oct. 21, 1976, 90 Stat. 2778; Pub. L. 98–300, May 25, 1984, 98 Stat. 215; Pub. L. 99–545, § 2, Oct. 27, 1986, 100 Stat. 3048; Pub. L. 104–333, div. I, title X, § 1032(a), Nov. 12, 1996, 110 Stat. 4239.) Editorial Notes REFERENCES IN TEXT The Rural Electrification Act of 1936, referred to in subsec. (g), is act May 20, 1936, ch. 432, 49 Stat. 1363, Page 578 TITLE 43—PUBLIC LANDS § 1765 1 So in original. which is classified generally to chapter 31 (§ 901 et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see section 901 of Title 7 and Ta- bles. AMENDMENTS 1996—Subsec. (g). Pub. L. 104–333 substituted ‘‘eligible for financing pursuant to the Rural Electrification Act of 1936, as amended, determined without regard to any application requirement under that Act,’’ for ‘‘financed pursuant to the Rural Electrification Act of 1936, as amended,’’. 1986—Subsec. (f). Pub. L. 99–545, § 2(1), inserted before the period at end ‘‘or for emergency repair work nec- essary for those rights-of-way authorized under section 1761(c) of this title’’. Subsec. (g). Pub. L. 99–545, § 2(2), substituted ‘‘The holder of a right-of-way shall pay in advance the fair market value thereof, as determined by the Secretary granting, issuing, or renewing such right-of-way. The Secretary concerned may require either annual pay- ment or a payment covering more than one year at a time except that private individuals may make at their option either annual payments or payments covering more than one year if the annual fee is greater than one hundred dollars. The Secretary concerned may waive rentals where a right-of-way is granted, issued or renewed in consideration of a right-of-way conveyed to the United States in connection with a cooperative cost share program between the United States and the hold- er.’’ for ‘‘The holder of a right-of-way shall pay annu- ally in advance the fair market value thereof as deter- mined by the Secretary granting, issuing, or renewing such right-of-way: Provided, That when the annual rental is less than $100, the Secretary concerned may require advance payment for more than one year at a time: Provided further, That the Secretary concerned may waive rentals where a right-of-way is granted, issued, or renewed in reciprocation for a right-of-way conveyed to the United States in connection with a co- operative cost share program between the United States and the holder.’’ 1984—Subsec. (g). Pub. L. 98–300 inserted at end ‘‘Rights-of-way shall be granted, issued, or renewed, without rental fees, for electric or telephone facilities financed pursuant to the Rural Electrification Act of 1936, as amended, or any extensions from such facili- ties: Provided, That nothing in this sentence shall be construed to affect the authority of the Secretary granting, issuing, or renewing the right-of-way to re- quire reimbursement of reasonable administrative and other costs pursuant to the second sentence of this sub- section.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–333, div. I, title X, § 1032(b), Nov. 12, 1996, 110 Stat. 4239, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply with respect to rights-of-way leases held on or after the date of enactment of this Act [Nov. 12, 1996].’’ Executive Documents TRANSFER OF FUNCTIONS See note set out under section 1763 of this title. § 1765. Terms and conditions Each right-of-way shall contain— (a) terms and conditions which will (i) carry out the purposes of this Act and rules and reg- ulations issued thereunder; (ii) minimize dam- age to scenic and esthetic values and fish and wildlife habitat and otherwise protect the en- vironment; (iii) require compliance with appli- cable air and water quality standards estab- lished by or pursuant to applicable Federal or State law; and (iv) require compliance with State standards for public health and safety, environmental protection, and siting, con- struction, operation, and maintenance of or for rights-of-way for similar purposes if those standards are more stringent than applicable Federal standards; and (b) such terms and conditions as the Sec- retary concerned deems necessary to (i) pro- tect Federal property and economic interests; (ii) manage efficiently the lands which are subject to the right-of-way or adjacent thereto and protect the other lawful users of the lands adjacent to or traversed by such right-of-way; (iii) protect lives and property; (iv) protect the interests of individuals living in the general area traversed by the right-of-way who rely on the fish, wildlife, and other biotic resources of the area for subsistence purposes; (v) require location of the right-of-way along a route that will cause least damage to the environment, taking into consideration feasibility and other relevant factors; and (vi) otherwise protect the public interest in the lands traversed by the right-of-way or adjacent thereto. (Pub. L. 94–579, title V, § 505, Oct. 21, 1976, 90 Stat. 2780.) Editorial Notes REFERENCES IN TEXT This Act, referred to in par. (a), is Pub. L. 94–579, Oct. 21, 1976, 90 Stat. 2743, known as the Federal Land Policy and Management Act of 1976. For complete classifica- tion of this Act to the Code, see Tables. Executive Documents TRANSFER OF FUNCTIONS See note set out under section 1763 of this title. § 1766. Suspension or termination; grounds; pro- cedures applicable Abandonment of a right-of-way or noncompli- ance with any provision of this subchapter con- dition of the right-of-way, or applicable rule or regulation of the Secretary concerned may be grounds for suspension or termination of the right-of-way if, after due notice to the holder of the right-of-way and, and 1 with respect to ease- ments, an appropriate administrative pro- ceeding pursuant to section 554 of title 5, the Secretary concerned determines that any such ground exists and that suspension or termi- nation is justified. No administrative proceeding shall be required where the right-of-way by its terms provides that it terminates on the occur- rence of a fixed or agreed-upon condition, event, or time. If the Secretary concerned determines that an immediate temporary suspension of ac- tivities within a right-of-way for violation of its terms and conditions is necessary to protect public health or safety or the environment, he may abate such activities prior to an adminis- trative proceeding. Prior to commencing any proceeding to suspend or terminate a right-of- way the Secretary concerned shall give written notice to the holder of the grounds for such ac-