Subject: [NEXTEL-1] Improving Rights-of-Way Management Across Federal Lands:Report by the Federal Rights-of-Way Working Group

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Date: Tue, 27 Apr 2004 06:50:52 -0400

Improving Rights-of-Way Management Across Federal Lands:

A Roadmap for Greater Broadband Deployment

Report by the Federal Rights-of-Way Working Group

April 2004

U.S. DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration

ACKNOWLEDGMENTS

The Federal Rights-of-Way Working Group would like to express our
sincere gratitude to all of the individuals and organizations within the
different federal agencies that participated in the Working Group and
contributed to this report.  In addition to performing their regular
duties, the Working Group participants volunteered considerable time and
effort in developing the report’s recommendations for improving
rights-of-way policies, procedures, and practices across federal lands.
We could not have produced this report without all of their dedication
and hard work.

The Working Group also would like to extend our thanks to the many
industry representatives, members of local, state, and tribal
governments and associations, and advocacy groups that provided their
suggestions and input.  We greatly appreciate their willingness to
candidly share their insights and experiences with the Working Group.

The Federal Rights-of-Way Working Group

U.S. Department of Agriculture
Forest Service
 Melissa Hearst
Randy Karstaedt
Tim Quinn

U.S. Department of Commerce
National Oceanic and Atmospheric Administration
 Ted Beuttler
David Chapman*
Eric English
Helen Golde
Michael Weiss

National Telecommunications and Information Administration
Michael D. Gallagher, Chair (Oct. 2003- present)
Nancy J. Victory, Chair (July 2002- Aug. 2003)*
 Meredith Attwell
John Kneuer
Kelly Klegar Levy*
Maureen Lewis
James McConnaughey
Sandra Ryan
Kathy Smith
Joseph Watson, Jr.
Jack Zinman*
 Josephine Scarlett

U.S. Department of Defense
 U.S. Army Corps of Engineers
Robert Cribbin
William Birney
Randall Wagner*
Navy
Richard Anderson*

 U.S. General Services Administration
 Michael Jawer
John Thomas

U.S. Department of the Interior
 Bureau of Indian Affairs
Dave Baker
Ron Walker
Bureau of Land Management
Ray Brady
David Cavanaugh
Rick Stamm
National Park Service
Lee Dickinson

U.S. Department of Transportation
Federal Highway Administration
Janis Gramatins
William Jones

* Former Working Group Members
 TABLE OF CONTENTS

ACKNOWLEDGMENTS
THE FEDERAL RIGHTS-OF-WAY WORKING GROUP MEMBERS
TABLE OF CONTENTS
EXECUTIVE SUMMARY 2
INTRODUCTION 5
PART I: SCOPE OF WORK 9
     A. MISSION 9
     B. ACTIVITIES 10
PART II: LAWS GOVERNING RIGHTS-OF-WAY ON FEDERAL LANDS 12
     A. LAWS AUTHORIZING RIGHTS-OF-WAY GRANTS 12
B. LAWS AFFECTING RIGHTS-OF-WAY 14
PART III: ISSUES AND RECOMMENDATIONS 15
     A. INFORMATION ACCESS AND COLLECTION 15
          1. INFORMATION ABOUT OBTAINING A RIGHT-OF-WAY OVER FEDERAL
LANDS 16
          2. PRE-APPLICATION MEETING 17
          3. A SINGLE, STANDARDIZED RIGHTS-OF-WAY APPLICATION 18
     B. TIMELY PROCESSING 20
          1. TIME FRAMES 21
          2. IDENTIFICATION OF A LEAD FEDERAL AGENCY 22
          3. PROJECT MANAGERS 23
          4. UTILITY CORRIDOR PLANNING 24
          5. COMMUNICATIONS SITE PLANS 25
     C. FEES AND OTHER CHARGES  26
         1. COST RECOVERY 27
         2. RENTAL PAYMENTS/COMPENSATION 30
     D. COMPLIANCE 35
          1. ENSURING PROPER INSTALLATION AND MAINTENANCE OF FACILITIES
36
          2. ADDRESSING UNANTICIPATED COSTS 41
          3. IMPOSING PENALTIES FOR NONCOMPLIANCE 42
CONCLUSION 43

APPENDIX A: 40 U.S.C.S. § 1314
APPENDIX B: Standard Form 299, Application for Transportation and
Utility Systems and Facilities on Federal Lands
APPENDIX C: Communications Protocol, Lake Chelan Hydroelectric Project
APPENDIX D: Office of Management and Budget Circular No. A-25, Revised
APPENDIX E: 2003 Communications Site Fee Schedule (excerpted from Forest
Service, FSH 2709.11: Special Uses Handbook, October 2002 (Chapter 30,
“Fee Determination”)
 EXECUTIVE SUMMARY

Broadband, also known as high-speed Internet access, has the potential
to bring new services and products to American consumers and businesses,
fostering innovation, investment, and job-producing economic growth.
The President has recognized the economic vitality that can result from
broadband deployment and has called on our Nation to be aggressive about
the expansion of broadband.  On March 26, 2004, the President called for
a national goal of universal, affordable access to broadband by 2007.  A
key to widespread broadband deployment is ensuring that broadband
providers have timely and cost-effective access to rights-of-way -- the
legal right to pass through property controlled by another -- so that
they can build out their networks across the Nation.  In the broadband
context, rights-of-way include access to the conduits, corridors,
trenches, tower sites, undersea routes and other locations that
broadband networks occupy.  These passageways often cross large areas of
land owned or controlled by the Federal Government.  Thus, effective and
efficient federal rights-of-way policies and practices are critical for
promoting broadband deployment.

To ensure that the Federal Government’s rights-of-way policies and
practices facilitate the aggressive deployment of broadband networks,
the Bush Administration created a Federal Rights-of-Way Working Group
composed of representatives from most of the major federal agencies with
land management responsibilities.  The mission of the Working Group is
to identify and recommend changes in federal policies, regulations, and
practices that would improve the process of granting rights-of-way for
broadband communications networks on lands under federal jurisdiction.
The Working Group is seeking reforms that would not only facilitate
broadband deployment, but also improve access to rights-of-way for other
interested stakeholders, such as members of industries outside the
telecommunications sector.  At the same time these reforms are designed
to assist federal agencies in efficiently and effectively performing
their vital role as the stewards of public lands, while working
cooperatively with their counterparts in state, local, and tribal
governments.

Based on information gathered from the communications industry, the
federal agencies, state, local and tribal representatives, and other
stakeholders, the Working Group has produced the following report, which
sets forth recommendations in the four main areas below.  Nothing in
this report, however, relieves rights-of-way applicants of their
obligation to comply fully with all applicable laws and regulations. The
Working Group recognizes that some agencies have already implemented
some of these recommendations and we commend them for doing so.  To make
lasting, nationwide improvements in federal land management, however, we
urge all of the agencies to devote the time and resources to fully
implement each of these recommendations.

(1) Information Access and Collection
? Within three months of the release of this report, the Administration
should set up a central Web portal to be administered by the National
Telecommunications and Information Administration (NTIA) with
information about the federal rights-of-way permit process and links to
all of the federal land management agencies.
? Within six months of the release of this report, all federal land
management agencies should update their Web sites to ensure that the
information is centrally located on a prominently displayed
rights-of-way home page with agency contact information.
? By August 2004, all federal land management agencies should institute
pre-application meetings with potential rights-of-way applicants.  These
meetings, which will occur before an applicant files its application,
are designed to promote an early exchange of information between
applicant and agency, resulting in better-prepared applications and more
timely processing.
? By December 2004, all federal land management agencies should use a
common application form (the existing Standard Form 299) as a way to
streamline and standardize applications to save time and reduce costs.

(2) Timely Process
? To prevent undue delay that can increase the costs of deployment and
cause deferral or even abandonment of a project, the Working Group
recommends that all federal land management agencies institute, by
December 2004, specific target time frames for completion of various
steps involved in the rights-of-way permit process.  For example, in
instances where a pre-application meeting has been held, agencies should
review an application and notify the applicant within 30 days as to
whether the application is “complete” and accepted for formal review.
? Federal agencies should designate a lead agency for projects involving
more than one federal agency, and by December 2004, adopt internal
procedures to ensure that such designations occur.
? Federal agencies should use project managers, who are responsible for
overseeing all aspects of an application’s review within an agency, to
help ensure timely processing of rights-of-way grants.
? Federal agencies should encourage the telecommunications sector,
state, local and tribal officials, and other stakeholders to participate
in planning and coordination efforts for utility corridors and
communications sites.  In many cases, though not all, an applicant can
save considerable time and expense by using a designated corridor or
site rather than breaking new ground.

(3) Fees and Other Charges
? The Working Group recommends a set of principles, as well as specific
techniques, for standardizing and simplifying cost recovery, fees, and
rental payments.  It further suggests that federal agencies initiate
rulemaking proceedings, as necessary and appropriate, to develop and
implement cost recovery regulations that incorporate these
recommendations by December 2004.
? For larger inter-agency projects where a lead agency has been
designated, the affected federal agencies should agree on consolidating
cost recovery and rental fee duties and placing them with the lead
agency.
? The Working Group recommends greater use of rental fee schedules,
rather than appraisals, which should result in more efficient use of
resources, a quick turnaround, and greater transparency of the process.
? All relevant federal land management agencies that are not currently
using fee schedules should commence rulemakings, as necessary and
appropriate, for the purpose of greater use of fee schedules in
determining rights-of-way rental payments.  These agencies should
initiate these rulemakings by December 2004.

(4) Compliance
? Federal agencies involved in granting and monitoring rights-of-way
should make formal training available to their staff, and by December
2004 should establish procedures to publicize the availability of such
training.
? Federal agencies should by December 2004 begin informing grantees of
the option of hiring reputable third-party contractors, who, in
conjunction with agency compliance monitors, ensure that grantees
properly perform planning and environmental studies, and initial phase
construction work to the agency’s satisfaction.
? Federal agencies should require grantees to submit periodic compliance
reports, which will facilitate necessary inspections and reduce the need
for some physical monitoring.  Agencies that determine a rulemaking is
necessary before requiring compliance reporting should initiate such a
proceeding by December 2004.
? By December 2004, any relevant federal land management agency that
does not recover its monitoring costs should commence a rulemaking, as
necessary and appropriate, to implement its authority to recover such
costs.
? The Working Group recommends that, where appropriate, agencies use
their authority to impose reasonable, but adequate, bonding requirements
to secure fulfillment of a grantee’s compliance obligations, and
initiate any rulemaking necessary to implement such a requirement by
December 2004.

To ensure that the Bush Administration is responsive to the needs of all
stakeholders, a year after the release of this report, each of the
federal agencies will submit a report to the Office of Management and
Budget (OMB) describing their efforts to implement the recommendations
in this report and listing any steps that still need to be taken.  The
improved federal land management processes that ensue from these
recommendations, together with the agencies’ commitment to
implementation, will help the Administration take a significant step
forward in meeting its goal of greater broadband deployment throughout
the Nation.
 Introduction

This report addresses the interaction between broadband deployment and
rights-of-way management -- two seemingly unrelated issues that, when
taken together, play an important role in the success of this Nation’s
technological and economic development.  Broadband, also known as
high-speed Internet access, promises great advances in commerce,
education, healthcare, national security, public safety and many other
areas.  Access to rights-of-way -- the conduits, corridors, trenches,
tower sites, undersea routes, and other physical locations that modern
communications networks occupy -- is a critical ingredient for the
deployment of broadband networks and services.  To ensure that broadband
providers are able to obtain rights-of-way in a timely and
cost-effective manner, the Bush Administration formed a Federal
Rights-of-Way Working Group to assess the management of rights-of-way
over lands under federal jurisdiction.  The following report contains
the Working Group’s findings and recommendations for how the Federal
Government can reform its approach to rights-of-way management to help
bring the promise of broadband to all Americans, while ensuring that
federal land managers fulfill their important roles as stewards of our
Nation’s public property.

Broadband communications networks enable the transmission of vast
amounts of information over great distances in a short period of time.
In addition to browsing the World Wide Web at high speeds, broadband
opens new opportunities for telemedicine, access to libraries and
research facilities, the provision of entertainment services, and
countless other services that can boost our economy, improve our
productivity, and enhance our lives.  High-speed lines connecting homes
and businesses to the Internet increased by 18% during the first half of
2003, from 19.9 million to 23.5 million lines.   Nevertheless, broadband
technologies are unavailable to some Americans.  Accordingly, the
President announced on March 26, 2004 a national goal of universal,
affordable access to broadband technology by 2007.

In addition to his most recent comments, President Bush has emphasized,
“[i]n order to make sure the economy grows, we must bring the promise of
broadband technology to millions of Americans.”   The President noted
that “[t]he private sector will deploy broadband.  But government at all
levels should remove hurdles that slow the pace of deployment.”   The
President's Council of Advisors on Science and Technology  (PCAST)
examined broadband, holding hearings and issuing a report setting forth
steps that could be taken to facilitate deployment.   Among other
suggestions, PCAST highlighted rights-of-way management as a critical
component of broadband deployment.  PCAST noted that:

If [rights-of-way] access is unfairly denied, delayed, or burdened with
unjustified costs, broadband deployment is slowed, and our citizens are
deprived of access to vital communications facilities. . . . It should
be a priority of this Administration to ensure that [rights-of-way]
issues are dealt with in a balanced manner that facilitates prompt
[rights-of-way] access for broadband networks while preserving
legitimate government interests to protect public health, safety and
welfare, and ensuring that government entities are fairly compensated
for the costs of managing their rights-of-way and that disruption of
rights-of-way is minimal.

To ensure that broadband providers are able to obtain rights-of-way in a
timely and cost-effective manner, the Administration formed a Federal
Rights-of-Way Working Group in July 2002 to examine land management
practices across the Federal Government.  Led by the National
Telecommunications and Information Administration at the Department of
Commerce, the Working Group includes representatives from most of the
federal agencies with major rights-of-way management responsibilities.
The primary participants in the Working Group are from the following
federal agencies:

Department of Agriculture

? Forest Service.   The Forest Service manages public lands in national
forests and grasslands, totaling approximately 192 million acres.

Department of Commerce

? National Oceanographic and Atmospheric Administration (NOAA).   NOAA
promotes sustainable economic development, jobs and prosperity along the
Nation's coastal areas.  NOAA manages a network of 13 national marine
sanctuaries.

? National Telecommunications and Information Administration (NTIA).
NTIA serves as the President’s principal advisor on domestic and
international telecommunications and information technology policies and
manages the Federal Government’s use of the radio spectrum.

Department of Defense

? Army Corps of Engineers.   The Army Corps of Engineers provides
engineering services to the Nation, including planning, designing,
building, and operating water resources and other civil works projects,
such as navigation, flood control, environmental protection, and
disaster response.

? Department of the Navy.   The Navy holds property for use in support
of its military mission.

Department of the Interior

? Bureau of Land Management (BLM).   BLM administers 261 million acres
of our Nation’s public lands, located primarily in 12 western states.
BLM administers approximately 85,000 rights-of-way on the public lands,
including about 23,000 oil and gas pipeline and 12,000 electric
transmission system rights-of-way.  BLM processes over 5,500
rights-of-way actions annually.

? National Park Service.   The National Park Service is responsible for
protecting the Nation’s national parks and monuments, and conserving the
scenery, natural and historic objects, and wildlife therein.  The
National Park System of the United States comprises 388 areas covering
more than 83 million acres in 49 States, the District of Columbia,
American Samoa, Guam, Puerto Rico, Saipan, and the Virgin Islands.

? Bureau of Indian Affairs (BIA).   BIA is the lead federal agency
responsible for improving the lives and protecting the trust assets of
American Indians, Indian tribes, and Alaska natives through services and
relationships.  BIA grants rights-of-way over American Indian-owned
lands with the consent of the Indian owner (tribal or individual).

Department of Transportation

? Federal Highway Administration (FHWA).   The Federal Highway
Administration, through its Federal Lands Highway Program, provides
access to and within national forests, national parks, Indian
reservations, and other public lands by preparing plans, letting
contracts, supervising construction facilities, and conducting bridge
inspections and surveys.  FHWA also provides funds for transportation
projects owned and controlled by state departments of transportation,
and is charged with oversight of how the monies are spent and how the
resulting roadways are maintained and operated.  Increasingly, these
operational needs involve more use of fiber optics for intelligent
transportation systems and other capacity-improving activities.

Independent Agencies

? General Services Administration (GSA).   GSA obtains the buildings,
products, technology, and other essentials that federal agencies need.
GSA provides services to over one million federal workers located in
8,300 government-owned and government-leased buildings nationwide.

The Working Group brought together most of the major federal land
management agencies to conduct a comprehensive review of federal
rights-of-way policies and practices.  The Working Group focused on
streamlining and simplifying rights-of-way management processes, where
possible and appropriate, to meet the needs of communications providers,
as well as stakeholders from other industries seeking rights-of-way
access.  At the same time, the Working Group recognized the vital role
that the federal agencies play as stewards of public property, and the
Working Group attempted to improve the federal agencies’ abilities to
carry out their missions in an efficient manner.  The overarching goal
of this endeavor is to ensure that federal rights-of-way policies and
practices serve to promote broadband deployment for the benefit of all
Americans.

This report reflects many hours of discussion and consensus building by
members of the Working Group.  While some of these discussions led to
new approaches to rights-of-way management, we also substantially built
upon the significant efforts and collaboration that BLM and the Forest
Service have already undertaken to build consistency within their
rights-of-way programs and to implement management practices that work
well, result in a better use of agency resources, and are supported by
industry.  Part I of this report describes the scope of the Working
Group’s mission and activities.  Part II briefly discusses the major
federal statutes that govern rights-of-way management.  Part III
delineates the issues that the Working Group addressed and provides the
Working Group’s recommendations, together with suggested implementation
strategies.

Part I:  Scope of the Working Group’s Mission and Activities

A. Mission

The mission of the Working Group is to identify and recommend changes in
federal laws, regulations, policies, and practices that would improve
the process for obtaining rights-of-way for the deployment of broadband
networks on federally-owned or federally-controlled real property.  In
fulfilling this mission, the Working Group attempted to strike an
appropriate balance between two sometimes competing interests:  (1) the
telecommunications industry’s desire to build out broadband networks in
a timely and cost-effective manner; and (2) the federal land managers’
responsibility to ensure appropriate use of public land.  In balancing
these interests, the Working Group sought reforms that would provide
industry with a more customer service oriented experience while
concurrently allowing federal land managers to operate more effectively
and efficiently.  In general, these reforms are aimed at streamlining,
standardizing, and simplifying rights-of-way management across all of
the relevant federal agencies.  When implemented by the agencies, the
Working Group expects the reforms to reduce burdens on industry, shorten
construction time on projects, allow agencies to use their resources
more efficiently, and facilitate the delivery of more broadband services
to American consumers and businesses.

Although the Working Group focused on reforms aimed at promoting
broadband deployment, the Working Group expects that our recommendations
will improve rights-of-way management for the telecommunications
industry as a whole, as well as other industries that require access to
rights-of-way on federal lands, such as the energy industry.  Indeed,
the majority of the Working Group’s recommendations are designed to
improve rights-of-way policies, procedures, and practices that should
benefit all rights-of-way stakeholders.

B.  Activities

As part of its research and policy development, the Working Group
conducted a series of outreach meetings and informal discussions with
stakeholders.    Specifically, the Working Group met with the following
stakeholders:

? Industry representatives, including incumbent local exchange carriers,
competitive local exchange carriers, telephone cooperatives, wireless
providers, satellite companies, cable companies, trade associations, the
TelROW Coalition, and the International Rights of Way Association;

? State, local, and tribal officials and associations, including the
National Association of Regulatory Utility Commissioners (NARUC),
National Association of Telecommunications Officers and Advisors
(NATOA), National League of Cities, National Association of Counties,
U.S. Conference of Mayors, Local and State Government Advisory
Committee, American Association of State Highway and Transportation
Officials (AASHTO), American Public Works Association (APWA), Coastal
States Organization, representatives of state public utility
commissions, and representatives of the Navajo Nation; and

? Environmental protection, historic preservation, and other stakeholder
groups.

Based on information gathered from all of these stakeholders, as well as
our own research, the Working Group focused its efforts in four basic
areas:

(1) Information Access and Collection:  Broadband providers operating
across multiple jurisdictions are often required to supply the same
information in different applications to numerous permitting
authorities.  The Working Group looked for ways to streamline and
standardize applications to save time and reduce costs.

(2) Timely Process:  Broadband providers have an important need to
obtain rights-of-way permits on a timely basis.  Otherwise, undue delay
can increase the costs of deployment and can sometimes prevent
deployment altogether.  The Working Group examined practices that could
ensure timely and appropriate action on rights-of-way applications.

(3) Fees:  The nature and amount of fees charged to broadband providers
vary widely across different agencies.  The Working Group scrutinized
various fee structures, looking for approaches that are appropriate and
reasonable, and that do not unfairly impede the deployment of broadband
networks.

(4) Compliance:  Rights-of-way managers have a legitimate interest in
ensuring that broadband providers take appropriate action to plan,
permit, construct, operate, and maintain the rights-of-way.  The Working
Group looked for examples of remediation and maintenance requirements
that accomplish those important objectives without placing undue burdens
on broadband providers.

The Working Group divided itself into the following three committees to
tackle the issues:  the information collection and timely process
committee, the fees committee, and the compliance committee.  Each
committee closely examined current federal rights-of-way practices and
policies, and looked for ways to improve those practices and policies.
The Working Group placed great emphasis on reaching consensus wherever
possible on our recommendations, which are set forth in Part III below.

The Working Group recognized that some stakeholders suggested additional
rights-of-way issues for our consideration, such as compliance with
environmental and historic preservation laws, known as the National
Environmental Policy Act (NEPA)  and the National Historic Preservation
Act (NHPA).   Although these issues are important, they are beyond the
scope of this report, and the Working Group addresses them only to the
extent that they relate to the four general issue areas described
above.  The Working Group also observes that other expert stakeholders
are actively engaged in addressing NEPA and NHPA issues.  For example,
the White House Council on Environmental Quality (CEQ) has established a
special NEPA Task Force.  Created on May 20, 2002, the NEPA Task Force
reviewed the current NEPA implementation practices and procedures in a
variety of areas and made recommendations to the CEQ for improving the
NEPA process based upon the information collected and the public
comments received.   The recommendations are posted on the NEPA Task
Force’s Web site.  The Task Force intends to publish a separate report
presenting best practices based on the case studies it evaluated.

Part II:  Laws Governing Rights-of-Way on Federal Lands

A variety of laws govern rights-of-way on federal lands.  Several laws
specifically authorize Federal Government agencies to approve private
parties’ access to federal lands for a wide range of purposes.  Other
laws contain environmental protection, historic preservation, and other
requirements that impact rights-of-way on federal lands.  In order to
provide context for the recommendations in Part III of this report, we
offer the following overview of the major laws governing rights-of-way
on federal lands.

A.  Laws Authorizing Rights-of-Way Grants

By virtue of the almost one-half billion acres of public and forest
lands that it governs, the Federal Land Policy Management Act of 1976
(FLPMA) is the most significant of the laws authorizing federal agencies
to grant easements and other rights-of way.   The FLPMA empowers the
Secretary of the Interior, for “public lands,”  and the Secretary of
Agriculture, for National Forest System lands, to grant, issue, or renew
rights-of way for a variety of facilities, including “systems for
transmission or reception of radio, television, telephone, telegraph,
and other electronic signals, and other means of communication.”   The
Act requires that each right-of-way grant contain terms and conditions
that will, among other things, “minimize damage to scenic and esthetic
values and fish and wildlife habitat and otherwise protect the
environment.”   The Secretaries of these agencies may also impose such
terms and conditions deemed necessary to “protect Federal property and
economic interests.”   Other provisions of FLPMA describe the
Secretaries’ ability to:  promulgate regulations; require advance rental
payments; and impose bonding requirements, among other duties.

For federal lands not covered by FLPMA, Congress has also provided
executive branch agencies with authority to grant rights-of-way on
federal lands within their control.  Specifically, Public Law No.
87-852,  as recodified in Public Law No. 107-217,  gives executive
branch agency heads the authority to grant for real property controlled
by his or her agency:

an easement that the head of the agency decides will not be adverse to
the interests of the Government, subject to reservations, exceptions,
limitations, benefits, burdens, terms, or conditions that the head of
the agency considers necessary to protect the interests of the
Government . . . .

Significantly, the law specifically grants executive branch agency heads
the discretion to impose terms, conditions, or even burdens on the
easements, if such measures are necessary to project government
interests. The statutory subtitle that includes Public Law 87-852, as
codified, states that one of its purposes is to provide the Federal
Government with an “economical and efficient system for . . . [u]sing
available property.”   Except as restricted by limitations not relevant
here, the statute supplements executive branch agencies’ powers under
other laws.

In addition to FLPMA and Public Law No. 87-852, other more specific laws
may provide rights-of-way authority to a particular agency.  For
example, the National Marine Sanctuaries Act  allows NOAA to issue
special use permits for specific activities in a national marine
sanctuary if the Secretary of Commerce determines authorization is
necessary to “establish conditions of access to and use of any sanctuary
resource.”   The Secretary may assess fees for such special permits,  as
well as suspend or revoke permits, and assess civil penalties for
violations of any term or condition of the grant.   This Act also
requires permit holders to submit to the Secretary annual reports
describing the activities conducted under the permit and the revenues
derived from such activities.

B.  Laws Affecting Rights-of-Way

Although not directly authorizing federal agencies to grant
rights-of-way, laws such as the National Environmental Policy Act
(NEPA),  the National Historic Preservation Act (NHPA),  and the
Endangered Species Act (ESA)  affect whether rights-of-way are granted
and may require that specific conditions or limitations be included in
the grant of a particular right-of-way.  Congress enacted NEPA:

To declare a national policy which will encourage productive and
enjoyable harmony between man and his environment; to promote efforts
which will prevent or eliminate damage to the environment and biosphere
and stimulate the health and welfare of man; to enrich the understanding
of the ecological systems and natural resources important to the Nation;
and to establish a Council on Environmental Quality.

This law requires federal agencies to study the environmental effects of
their actions through an interdisciplinary planning process that
integrates environmental and economic issues.  In cases where the
environmental effects may be significant, the NEPA process informs and
seeks input from the public, tribes, states, and local agencies, as well
as other federal agencies.

Under NHPA, the Federal Government provides leadership for preservation
efforts and fosters conditions to facilitate the harmonious existence in
modern society of prehistoric and historic resources.  As amended in
1992, Section 110 of the Act outlines a broad range of responsibilities
for federal agencies.  Among other responsibilities, the provision calls
for federal agencies to establish preservation programs commensurate
with their mission, and to designate qualified Federal Preservation
Officers to coordinate their historic preservation activities.
In 1973, Congress passed the ESA to conserve the ecosystems that sustain
endangered and threatened species.  Congress considered such fish,
wildlife, and plant species to be “of aesthetic, ecological,
educational, historical, recreational, and scientific value to the
Nation and its people.”   Therefore, Congress established a policy
requiring all federal agencies and departments to seek to conserve these
species and to support the Act’s purposes.  The Interior Department’s
Fish and Wildlife Service and the Commerce Department’s National Marine
Fisheries Service administer the law.  Section 7 of the ESA directs all
federal agencies to use their existing authorities to conserve
threatened and endangered species and in consultation with the U.S. Fish
and Wildlife Service, to ensure that their actions do not jeopardize
listed species or destroy or adversely impact critical habitat.  Section
7 applies to management of federal lands as well as other federal
actions that may affect listed species, such as the issuance of permits,
licenses, or other actions authorizing private activities.  NEPA, NHPA,
ESA and other laws may impose additional responsibilities on
right-of-way grantees that may impact their ability to use public lands
for the desired commercial purposes.

Part III:  Issues and Recommendations

In discussions with stakeholders and federal agency staff, the Working
Group discovered that rights-of-way concerns generally fall into the
following four main categories: (a) information access and collection,
(b) timely process, (c) fees, and (d) compliance.  In each of the main
categories, the Working Group examined a variety of individual, yet
related issues.  Below, the Working Group discusses these issues, offers
its recommendations, and presents a roadmap for implementation of the
recommendations.  Nothing in this report, however, relieves
rights-of-way applicants of their obligation to comply fully with all
applicable laws and regulations.

A.  Information Access and Collection

A potential applicant for a rights-of-way permit and the affected
agency(ies) confront several issues related to accessing and collecting
information.  First, the applicant needs access to general information
about how to obtain a permit.  Second, the applicant must interact with
the appropriate agencies so that they are advised early in the
application process of potential issues, concerns, and information
requirements that may be needed by the agencies to evaluate the
applicant’s request for a right-of-way.  In this section, the Working
Group offers recommendations for improving the accessibility and quality
of general information available to applicants for rights-of-way
permits.  The Working Group also offers recommendations for streamlining
and simplifying the process for agencies to collect information from
applicants.  In both instances, the Working Group’s recommendations are
designed to reduce burdens on applicants and to allow agencies to make
better use of their limited resources.

1. Information about Obtaining a Right-of-Way over Federal Lands

Issue:  To prepare an application for a rights-of-way permit, a
potential applicant typically needs information about agency personnel
contacts, application forms, fees, and other planning and permitting
requirements.  While some federal agencies provide excellent,
easy-to-find information about their rights-of-way processes,  other
federal agencies have significant room for improvement.  Indeed, the
Working Group’s research has shown that few federal agencies have a
clearly identifiable rights-of-way section on their Web sites, complete
with an application form, delineated steps to follow in the
rights-of-way process, and agency contacts.  Instead of obtaining a
clear roadmap for how to obtain a rights-of-way permit, the potential
applicant often gets lost in a maze of confusing regulations and
policies, incomplete information, and receives no contact information
for asking directions.  The resulting uncertainty causes delays, drives
up costs, and slows deployment of networks.

Recommendation:  The Working Group believes that the Internet provides
the most cost effective and most easily accessible means to disseminate
information about the rights-of-way permit process to potential
applicants.  Accordingly, the Working Group offers two recommendations:
(1) establish a central federal Web portal for rights-of-way
information; and (2) update individual agency Web sites and link them to
the central Web portal.

Central Web Portal.  The Working Group recommends that the
Administration create a central Web portal with information about the
rights-of-way permit process for federal lands.  The Web portal would
contain general information about obtaining a rights-of-way permit over
federally-owned or federally-controlled real property.  This central Web
portal also would list and link to the appropriate, updated Web sites
for each federal agency with authority to grant rights-of-way permits on
federal lands (see below).  The Working Group recommends that NTIA, as
the lead agency in the Working Group, host and maintain the central Web
portal.  To draw attention to the Web portal, the Working Group also
recommends that a referral Web page be established in the business
gateway section of the FirstGov.gov Web site,  which is the official
U.S. gateway to all government information.

After the central Web portal is established, the Working Group
recommends that NTIA investigate the feasibility of employing more
advanced, automated services on the central Web portal.  For example,
the central Web portal could engage a potential applicant in a series of
questions about the type, scope, and location of the project.  In turn,
the Web portal could employ software that would take this information
and give the potential applicant the relevant contact information of the
federal agencies likely to have jurisdiction over their application, a
copy of a rights-of-way application, and information about environmental
protection, historic preservation, endangered and threatened species,
and other issues that would need to be addressed as part of the
rights-of-way application process.  The information entered by the
potential applicant could also generate an e-mail alert to each relevant
agency, noting that an application request had been made.

Updated Agency Web sites.  The Working Group also recommends that
individual land management agencies update their Web sites to ensure
they meet the following criteria:

? Information is centrally located on a prominently displayed
rights-of-way home page with appropriate links to sub-pages.
? All information is up-to-date.
? All information is organized in a logical, user-friendly format.
? Agency contact information (including e-mail addresses) is current and
easily accessible on the Web site.

Implementation:  In consultation with the Working Group, NTIA should
take the lead in creating a central Web portal for information on
federal rights-of-way on the existing NTIA Web site.  This new portal
should be created within three months of the release of this report.
NTIA should work with GSA, which maintains the FirstGov.gov Web site, to
establish a referral Web page directing federal rights-of-way inquiries
to the NTIA Web portal.  Other federal agencies with land management
responsibilities should also update their Web sites according to the
criteria above within six months of the release of this report.

2.  Pre-application Meeting

Issue:  As part of their responsibility to administer rights-of-way,
federal agencies are often required to review and evaluate a variety of
factors regarding an applicant’s proposed use of federal land, such as
whether:  (1) the proposal is consistent with the stated purpose for
which the public lands are managed; (2) the proposal is in the public
interest; (3) the applicant is technically or financially capable of
accomplishing the project; (4) the proposal is consistent with
applicable federal, state, local, or tribal laws; and (5) the applicant
is able to mitigate any adverse environmental consequences resulting
from the proposal.  In addition, some federal applications may require
coordination with state, local, or tribal governments.  Due to the
potential complexity of this review, applicants for rights-of-way
permits often lack a good understanding of the potential issues that
their applications may raise, the impacts to government agency resources
that may be needed to evaluate the application, and the information
needed by those government agencies in order to effectively evaluate the
applications pursuant to the laws, regulations, and policies governing
these types of requests.  As a result, federal agencies frequently ask
applicants to provide additional information before applications are
accepted.  This situation causes delays and additional costs for
applicants and is an inefficient use of scarce agency resources.

Recommendation:  To ensure that applicants are fully aware of all of the
approval criteria and the process by which their applications will be
evaluated and to ensure that all relevant government entities are
properly engaged in the review process, the Working Group strongly
recommends that a pre-application meeting occur between the applicant
and the relevant agencies.  Knowing the specific details of a project
and engaging in an early and candid discussion with the relevant
federal, state, local, and/or tribal officials before the application is
filed can facilitate a more efficient processing of the rights-of-way
application.  Such a meeting will enable the government representatives
to identify issues regarding land management consistency and/or
constraints; potential or alternative route selection; cost recovery;
rental or land use payments; NEPA  requirements, including any studies
that may be needed to comply with NHPA and ESA; cultural site
considerations; work schedules; safety; remediation; and compliance.
During the pre-application meeting, agency personnel will examine the
proposed right-of-way to determine whether it could fit in an existing
rights-of-way utility corridor or communications site (see discussion
below).  Applicants should be advised to bring a map of the project area
to the pre-application meeting.   By establishing a dialogue between the
applicant and all of the affected government entities, the
pre-application meeting has the potential to save time and money for all
parties.  Adoption of this recommendation should not impose any
additional burden on agencies’ resources because existing staff would
attend the pre-application meetings.

The Working Group recommends that the federal agencies post clear
instructions for a potential applicant on their Web sites, noting that
the burden is on the applicant to contact all potentially relevant
federal agencies and to request a pre-application meeting.  Once a
potential applicant has made a request for a pre-application meeting,
however, each of the agencies should work cooperatively to facilitate
the meeting.  A potential applicant should consider inviting the
appropriate state, local, and tribal officials, if applicable.  Federal
agencies should strive to schedule a pre-application meeting within 30
days of receiving a request from a potential applicant for such a
meeting.

Implementation:  By August 2004, each federal agency with rights-of-way
responsibilities should post on their Web sites, and add to any
applicable practice manuals, clearly articulated information for a
potential rights-of-way applicant on the importance of a pre-application
meeting and the steps that a potential applicant should take to set up
that pre-application meeting.

3.  A Single, Standardized Rights-of-Way Application

Issue:  Although most federal agencies require a relatively similar body
of information from rights-of-way applicants, their methods for
collecting that information vary widely among agencies.  Some agencies,
such as BLM and the Forest Service, use a common application form;
others such as the Navy or NOAA do not, just requiring similar
information in whatever manner the applicant wishes to present it so
long as it satisfies agency guidelines.  As a result, applicants often
submit the same information in different formats for different federal
agencies, even when the agencies are collaborating on the review of the
same project.  This situation causes applicants to expend unnecessary
time and resources to satisfy duplicative requirements.  In contrast,
where agencies such as BLM and the Forest Service have used a single
common application form, industry stakeholders have noted the benefits
from standardizing the information collection.

Recommendation:  The Working Group recommends that all agencies with
rights-of-way responsibilities for federal lands adopt a single,
standardized form for rights-of-way applications.  A single,
standardized form will reduce filing burdens on applicants and will
provide a consistent source of information for affected federal
agencies.  Specifically, the Working Group recommends that all federal
agencies adopt the Standard Form 299 (SF-299) for use beginning no later
than December 2004.  (See Appendix B for a copy of Standard Form 299,
currently in use by BLM and the Forest Service.)

The SF-299 requests information about the type of project proposed by
the applicant.  This information includes the project’s location; the
applicant’s technical and financial capability to construct, operate,
maintain and terminate the project; the applicant’s need for the
particular right-of-way; and the general environmental impact of the
proposed project.

The SF-299 provides much of the basis for obtaining information to
determine if the applicant is qualified and the project is viable.  Use
of the SF-299 is intended to simplify information collection for both
the applicant and the federal agencies.  There are unique parts of each
federal agency’s mission, however, that cannot be captured in a
standardized form and that may require particular information from an
applicant in order for a federal agency to assess whether to grant a
right-of-way.  Thus, later in the process, a federal agency may need to
request further information specific to the project or an agency’s
mission.   Accordingly, the filing of an SF-299 does not preclude an
agency from requesting additional information from the applicant.
However, use of a common application form, coupled with a
pre-application meeting, should reduce duplication and delays based on
information solicitation.

The process of developing the SF-299 involved more than 20 federal
agencies and the general public.  The current version, first issued in
1999, resulted from consultation among the Forest Service, Bureau of
Land Management, Fish and Wildlife Service, National Park Service, U.S.
Department of the Interior Solicitor’s Office, U.S. Department of
Agriculture Office of General Counsel, Department of Transportation
Office of Surface Transportation, and Department of Transportation
Federal Aviation Administration.

The SF-299 is available in an electronic format so an applicant can
download the form from the Internet, complete the application, and
submit it via U.S. mail.  After full implementation of OMB’s e-gov
initiative, the Working Group expects that applicants will be permitted
to file the SF-299 electronically.  The submitted SF-299, together with
the appropriate cost recovery fees and a NEPA/NHPA checklist,  if
applicable, should provide all the basic information necessary for a
federal agency to complete its initial screening of the proposed permit
(see below).  The Working Group recognizes, however, that the complexity
of the project under review, determines the extent of any additional
information needed to complete the SF-299.  Use of the SF-299 can
provide applicants with useful guidance about the type of information
that federal agencies require in their decision-making and can help to
expedite the agency’s initial review process.

Implementation:  Each federal land management agency that does not
currently use the SF-299 should initiate any agency action necessary,
including rulemaking, to adopt the SF-299 as its primary means of
collecting information from rights-of-way applicants.  The Working Group
recommends that such rulemakings commence immediately upon release of
this report so that all federal land management agencies could begin
using the SF-299 by December 2004.  Once an agency formally adopts the
SF-299 for use, that agency should post the SF-299 on its Web site.
While electronic filing of the SF-299 is not currently available, the
federal agencies should work with OMB to enable electronic filing of
this document by applicants as soon as possible.

B. Timely Processing

Issue:  In order to construct their networks in a cost-effective manner,
broadband providers, like other rights-of-way users, need timely
decisions from land managers.  Lengthy delays can add tremendous costs
to a broadband project, cause companies to lose their funding, delay
expansion into a particular market or community, and/or result in the
deferral or abandonment of a broadband project.  In outreach meetings
with representatives from all sectors of the telecommunications
industry, company representatives voiced many complaints about the
length of time that rights-of-way applications take in federal agencies’
land management processes.  The Working Group found that delays result
from a variety of causes, including limited funds, inadequate staffing,
a lack of skills and expertise, meeting environmental planning, approval
and permitting requirements, the absence of time frames for processing
applications, or no enforcement of such time frames.  The reassignment
of staff to handle
 national emergencies (e.g., wildfires) can also result in lengthy
delays.  Although some of these issues are beyond the Working Group’s
ability to address, we believe that the recommendations below can
substantially improve an agency’s ability to process an application in a
timely fashion.

1.  Time Frames

Issue:  A rights-of-way applicant often has little information about
when an agency will complete its review of the application and issue a
permit, or even complete various steps along the way.  The lack of clear
time frames often frustrates applicants who are trying to coordinate
funding, construction, and other aspect of a project.  Uncertainty can
derail and even defeat the deployment of broadband networks.

Recommendation:  The Working Group recommends that, during or shortly
after the pre-application meeting, the affected agencies identify all
steps and decisions that need to be made by each agency relative to
processing a right-of-way and establish an estimated time frame for the
review process.  Early designation of a lead agency and project managers
would facilitate the development of such a time frame and its timely
execution.  (See discussion below regarding lead agency and project
managers.)  The Working Group recommends the use of specific target time
frames for various steps of the rights-of-way process.  Time frames
would help to expedite processing, provide predictability to the
applicant, and provide agencies with a way to measure their
performance.  Some federal agencies already strive to meet the target
time frames set out below.  For purposes of establishing time frames, a
proposal will be accepted as an application when the lead or responsible
agency determines that the proposal provides the information necessary
to evaluate it pursuant to NEPA, and meet any other applicable
environmental requirements as needed by the agency(ies) having
jurisdiction to approve the project. The Working Group recommends that
all federal land management agencies establish the following time frames
for processing rights-of-way permits:

? Target Time Frames for Initial Screening and Response for All Projects

o For applicants that have participated in a pre-application meeting,
agencies should review the initial application (the SF-299) and notify
the applicant within 30 calendar days whether the application is
“complete” and ready for formal review, or whether the application is
incomplete and must be revised or supplemented.

o For applicants that have not arranged for and participated in a
pre-application meeting, then the agencies should review the application
and notify the applicant within 60 days as to whether the application is
complete.

? Target Time Frame for Final Decisions on Small, Uncomplicated Projects

o For small, uncomplicated rights-of-way projects, agencies should
strive to grant or deny a proposal within 60 days of receiving a
complete application.

? Target Time Frame for Final Decisions on Large, Complex Projects

o For larger, complex projects, the agency(ies), in consultation with
the applicant and other affected parties, should establish a schedule of
processing time frames and notify the applicant of that schedule within
60 days after the application is deemed complete.

Implementation:  By August 2004, every federal agency with land
management responsibilities should implement the target time frames as
part of their internal practices for processing rights-of-way
applications.  To help ensure that agencies meet these targets, agencies
should report to their respective Secretaries, or his/her designee, on
an annual basis, with the first report due December 31, 2004, regarding
the number of permits or easements that were issued within the targets
and the number of permits or easements that were issued outside the
targets.  If applicable, the report should also explain why the target
time frames were not met and should contain recommendations for
improving timeliness in the future.  By incorporating an annual
reporting requirement, these target time frames will benefit not only
rights-of-way applicants, but also agency personnel by providing an
opportunity to demonstrate success and/or the need for additional
information or resources.

2.  Identification of Lead Federal Agency

Issue:  Applicants also voiced the concern that, when projects affect
more than one federal agency, coordination between agencies is often
unpredictable.  Varying local priorities, agency requirements, staffing
levels, funding, and land-use planning decisions complicate agency
cooperation and coordination.  A lack of coordination between federal
agencies often results in delays and imposes unnecessary costs on the
applicant.

Recommendation:  The Working Group recommends that, for rights-of-way
projects that involve more than one federal agency, the agencies
involved should designate a lead agency immediately following the
pre-application meeting described above and before an application is
filed.  Agencies should use the following factors in the selection of a
lead agency:  (1) amount of land crossed, the difficulty of crossing
certain land, and the impact to the land and resources; (2) the
personnel and financial resources available to process expeditiously the
rights-of-way application; (3) the expertise of the various agencies;
and (4) the agency that manages the federal land over which there is the
greatest degree of controversy or concern with respect to the proposed
project.  The responsibilities of the lead federal agency would include
managing communications with all affected government agencies; managing
the budget and personnel resources devoted to an application; ensuring
that deadlines are met; and coordinating with all the other federal,
state, local, and tribal agencies involved in the project with respect
to related processes, approvals, and permits.  One of the most important
responsibilities of the lead agency is to serve as the primary contact
for the applicant, who should work directly with the lead agency.

Implementation:  The Working Group recommends that by August 2004,
federal land management agencies adopt internal operating practices to
ensure that a lead agency is designated for multi-agency projects.  For
most projects, these operating practices need not be extensive and
should not require the adoption of any new rules.  On particularly
complex projects, agencies may wish to set forth the details of the
responsibilities of the lead federal agency in a letter, memorandum of
understanding, or other document mutually agreed to by all the affected
federal agencies.

3.  Project Managers

Issue:  Stakeholders also have noted that the rights-of-way process
within a federal agency is slowed when several people at the agency have
responsibility for different parts of the process, but there is no clear
leader on the project.  Consequently, delays occur because of a lack of
coordination and communication.  The applicant in such cases often must
deal with multiple agency personnel, with resulting inefficiencies for
both the applicant and the agency.  The lack of clear leadership on a
given project within an agency makes inter-agency coordination more
difficult as well.

Recommendation:  To improve timeliness, the Working Group recommends the
use of project managers by federal agencies.  The responsibilities of
the project manager would include managing the budget and personnel
resources devoted to processing an application and facilitating the
permit’s issuance; ensuring that target time frames are met;
coordinating with all other federal, state, local, and tribal agencies
involved in the project; and serving as the primary point of contact for
industry, contractors, and other government entities.  Project managers
can provide skills and expertise with respect to regulations,
requirements, and contacts that are usually not retained at every field
office.  Project managers are also extremely useful for agencies that
are involved in multi-agency projects, as they can improve and simplify
inter-agency coordination.  As with lead agencies, applicants should
avail themselves of the benefits of the single contact point that
project managers provide.  BLM has successfully utilized national
project managers who coordinate large/complex project proposals, and
other agencies may benefit from consulting with BLM about its
experience.

Implementation:  All federal agencies with land management
responsibilities should (1) implement the use of the project manager
approach for large, complex projects; and (2) designate project manager
responsibilities, where appropriate, in employees’ work plans.  Federal
agencies should provide training for personnel, if necessary, to carry
out the duties of a project manager.

4.  Utility Corridor Planning

Issue:  In constructing their networks, broadband providers are often
confronted with the challenge of finding suitable, cost-effective routes
for laying fiber optic cables, or other linear communications media,
while minimizing any potential environmental or historic preservation
impacts that may slow an agency’s review process.  Energy companies have
faced similar issues in laying pipelines, and many of those companies
have embraced the use of utility corridors as the most optimal solution.

Recommendation:  As a way to help streamline the rights-of-way process
for broadband companies, the Working Group recommends that companies
take advantage of previously designated rights-of-way utility corridors
when possible.  Congress addressed the issue of rights-of-way utility
corridors in Section 503 of the FLPMA.  Section 503 states that the
Secretary of the Interior shall designate corridors to minimize adverse
environmental impacts and the proliferation of separate rights-of-way.
In addition, the National Energy Policy and Executive Order 13213
requires BLM to emphasize rights-of-way planning and corridor
designations.   Since 1979, the Western Utility Group  and others have
worked in cooperation with BLM and the Forest Service to identify and
designate corridors in their land management plans.

In recognition of the benefits of utility corridor designation, the
Working Group recommends that the federal land management agencies
encourage the telecommunications sector, agencies with environmental and
regulatory responsibilities, state transportation department officials,
and state historic preservation officials to participate in the land and
resource planning processes and proceedings that federal agencies use to
designate utility corridors.  The Working Group suggests that federal
agencies reach out to telecommunications entities in their utility
corridor designation process.  Utility corridors provide a way for
various stakeholders to work together to identify rights-of-way across
federal lands that may be used by more than one company.  In many
instances, using a designated utility corridor can significantly
expedite the processing of rights-of-way for new telecommunication
transmission facilities by eliminating the need to do extensive
environmental and other impact studies required for new sites, and
thereby result in time and financial savings for the applicant.  The
Working Group recognizes that utility corridors may not always present
the most efficient or cost-effective route for rights-of-way applicants
and these applicants should retain the flexibility to apply for other
routes.  Nonetheless, the Working Group encourages applicants to use
utility corridors wherever practicable.

Implementation:  The federal agencies should promote the use of
designated utility corridors to all potential applicants by means of
public awareness through postings on their Web sites,  as well as
information provided to applicants at the pre-application meeting.
Postings on agency Web sites could include a fact sheet that includes
maps and descriptions about the location of existing and planned utility
corridors and provide information about how interested
telecommunications companies and other stakeholders can get involved in
these federal land management planning processes. While BLM and the
Forest Service already actively participate in the Western Utility
Group’s current Western Regional Corridor Study, other Federal land
management agencies should also become more active participants.

5.  Communications Site Plans

Issue:  In addition to employing linear facilities that may stretch for
tens or hundreds of miles, such as fiber optic cables, communications
providers also rely on facilities located at a single geographic point.
These facilities may include buildings or towers that house or support
communications equipment.  These physical structures are also known as
communications sites.   A communications site plan, developed by an
agency, sets forth the conditions for multiple tenants’ use of such a
facility.

Communication sites are critical for the wireless industry, which has a
growing need for additional antenna sites, including in remote
communities once considered too isolated for the investment of
infrastructure capital.   However, to avoid congestion as well as to
address aesthetic concerns, agencies desire to limit the number of
communications sites.  Most federal agencies advocate maximizing an
existing communications site to reduce the proliferation of sites and
ensure compatibility among communications uses.

In the past two years, BLM has completed site management plans on over
60 mountain tops.  BLM uses in-house land surveyors and geographic
information system (GIS) mapping specialists to perform the site survey
and to prepare detailed site maps of the mountain tops.

Recommendation:  The Working Group recommends that federal land
management agencies encourage co-location of communications facilities
on existing designated communications sites, where feasible for the
agency and the applicant, similar to the practice currently employed by
BLM and the Forest Service.  The advantage for rights-of-way applicants
is that co-location on an existing communications site allows a
potential tenant to co-locate in a private facility without agency
review, when the facility owner determines that the proposed use is
compatible with the site plan and existing communications uses at the
site.   The Working Group encourages federal agencies to continue using
communications site plans that facilitate appropriate access to federal
property for the siting of mobile service antennas.  Agencies should
give special consideration to potential broadband use for extending
service to rural communities.  Agencies must retain the discretion to
reject inappropriate siting requests, ensure protection of public
property, and ensure timely removal of equipment and structures at the
end of service.

Implementation:  All relevant federal land management agencies should
continue to prepare and maintain a communications site plan for each
designated communications site.  The federal agencies should explore the
option of obtaining fee retention authority, similar to that given to
BLM, for use in establishing communications site planning programs.  In
addition, the federal agencies should work closely with industry and
other users to ensure that the communications site plans remain
effective and inclusive of all needs of both industry and the Federal
Government.  The federal land management agencies should promote private
sector awareness of these communications sites and should include maps
on their Web sites showing the location of existing communications
sites.   NTIA should post a fact sheet on the central federal
rights-of-way Web site that (1) explains the current status of the
Federal Government’s communication site plans, (2) includes maps showing
the location of existing or planned communications sites, and (3)
provides information about the potential role for interested
telecommunications companies and other stakeholders.

C. Fees and Other Charges

As an applicant goes through the rights-of-way process, the applicant
generally encounters two types of fees:  (1) the recovery of costs
incurred by federal agencies in processing and monitoring rights-of-way,
and (2) the assessment of rental payments or other compensation for the
applicant’s use of federal land.   In reviewing current procedures used
by federal rights-of-way managers, the Working Group identified areas
where federal agencies should streamline their practices, improve
processes with respect to calculating reasonable fees, provide
information in a more customer-friendly way, and promote predictability
and accountability.  These issues are discussed below.

1. Cost Recovery

Issue:  By statute and administrative directive, federal agencies are
required to recover the cost of providing goods, services, or resources
to the public, including permits for rights-of-way.  Specifically, Title
V of the Independent Offices Appropriations Act of 1952 allows federal
agencies to recoup costs from identifiable “special beneficiaries” where
the services benefited particular recipients as compared to the general
public.   OMB Circular No. A-25 establishes federal policy regarding
fees assessed for government services and for sale or use of government
goods or resources.   For cost recovery for rights-of-way uses, the
circular requires that federal agencies assess and collect user charges
that will be sufficient to recover the full cost to the Federal
Government of providing a good, service, or resource.  This recovery may
include a variety of costs, such as those for verifying and evaluating
information submitted by the applicant, inspecting and monitoring
installation and maintenance, and conducting environmental and
engineering studies.  In most cases, federal agencies calculate and
recover these costs separately from a land use fee, also known as a
rental fee, or some other consideration given in exchange for use of the
rights-of-way.

In practice, federal agencies have widely divergent policies and
procedures for assessing, collecting, and spending cost recovery fees
associated with rights-of-way management.   For example, BLM has
detailed regulations on the use of cost recovery schedules for smaller
projects, and case-specific cost recovery procedures for larger
projects.  The Forest Service currently collects processing and
monitoring fees on a voluntary basis from applicants and permit holders,
but by the end of fiscal year 2004, it intends to finalize a set of cost
recovery regulations and fee schedules concurrently with BLM’s pending
revisions to its long-standing regulations and procedures.  The end
product will be a higher degree of consistency in the assessment of
processing and monitoring fees between these two agencies.

Other agencies use a variety of different approaches.  For example, an
applicant for an easement on military lands pays cost recovery, although
the Navy must recover its costs in the fiscal year in which the costs
are incurred.  In the case of the Army Corps of Engineers, customers pay
according to an established fee schedule, although the Army Corps of
Engineers permits deviations from the schedule in certain
circumstances.  If NOAA chooses to assess a special use permit fee under
the National Marine Sanctuaries Act, it must include assessments for
administrative costs, monitoring costs and fair market value.  The
National Park Service provides local offices with the discretion to
determine their own cost recovery fee rates based on actual costs
incurred.  BIA does not currently recover costs related to rights-of-way
on Indian lands, although it has the authority to do so under 25 U.S.C.
§413.

As the preceding examples demonstrate, federal agencies have adopted a
variety of approaches to implementing cost recovery.  In the Working
Group’s discussions with stakeholders, many applicants -- particularly
those dealing with multiple agencies -- viewed the varied approaches to
be inefficient, confusing, and frustrating.  In response to these
concerns regarding cost recovery, the Working Group sets forth three
recommendations.  The recommendations address the following three
aspects of cost recovery: (1) the entity responsible for cost recovery;
(2) general principles applicable to cost recovery; and (3) specific
techniques for standardizing and simplifying cost recovery.

Recommendation #1:  First, the Working Group has identified the need to
clarify which federal agency will be responsible for cost recovery on
projects involving more than one agency.  The Working Group’s
recommendation is that for small, uncomplicated projects, individual
agencies should continue to be responsible for recovering their own
costs, subject to the principles and techniques discussed below.  For
larger inter-agency projects,  improved efficiency may result from the
lead agency performing cost recovery on behalf of all affected federal
agencies (see discussion above).  By sharing resources and simplifying
cost recovery procedures where multiple federal land management agencies
are involved, federal agencies can better use their skilled staff,
reduce duplication, and make communications easier for applicants, who
would benefit from a single point of contact for the federal agencies.

Implementation:  For larger inter-agency projects where the federal
agencies have designated a lead agency, the affected federal agencies
should agree on consolidating cost recovery duties and placing them with
the lead agency.  Federal agencies should develop a standard
inter-agency agreement or memorandum of understanding regarding
inter-agency cost recovery procedures that will apply in most cases,
unless there are unique aspects to the project that require changes to
the standard inter-agency agreement.  The significantly different
statutory missions of some federal agencies, such as BIA and NOAA, may
require specific provisions in the inter-agency agreements that take
into account the agency(ies)’ different approaches to cost recovery.

Recommendation #2:  Second, the Working Group recommends that the
federal agencies act in accordance with a set of general principles
applicable to cost recovery pertaining to rights-of-way management.
Specifically, the Working Group recommends that these agencies develop
and implement regulations that result in a cost recovery process that
meets the following criteria:

? Promote predictability and consistency.

? Are based on a transparent and reliable cost recovery system that
helps ensure accountability.

? Feature reasonable fees that reflect an agency’s costs and efficiency.

? Afford ease of use by the customer (e.g., a ready contact; provides
for a lead agency approach where multiple jurisdictions are affected; a
clear published explanation of the process).

? Foster ease of use by the agency (simple formula for implementation).

Implementation:  All relevant federal land management agencies should
commence rulemakings, as necessary and appropriate, for the purpose of
developing and implementing regulations for rights-of-way cost recovery
processes that incorporate the above criteria.  These agencies should
initiate these rulemakings by December 2004.

Recommendation #3:  Third, the Working Group recommends specific
techniques for standardizing and simplifying cost recovery relating to
rights-of-way management.  In particular, applicable agencies should
implement the following practices and procedures:

? An activities-based costing system using accepted accounting
principles.  Such a formal, reliable cost-accounting system would
promote accountability and confidence for both agencies and applicants.
Adopting this system across the various rights-of-way agencies would
foster a similar costing basis, thereby minimizing distortions and
unjustified differentials.

? Fee schedules  for small, uncomplicated projects.  Establishment of
such schedules would enhance predictability and ease of use by agencies
and their customers, reducing the number of complaints.

? Case-specific cost estimates and assessments for large, complex
projects.  Working Group members generally agreed that the agencies’
need for flexibility and specificity in estimating the costs of such
diverse projects should be paramount; fee schedules would be easier to
use but would not accommodate the need for costing accuracy and
flexibility in large-scale projects.  Drawing costs for large, complex
projects from a transparent and reliable cost recovery system would
instill confidence in applicants and agencies alike.

? A readily accessible source of information (e.g., Web site),
describing for applicants the agency’s cost recovery regulations,
policies, and procedures.  This transparency would inform and reassure
applicants, particularly those new to the federal rights-of-way
process.  Agencies, too, would benefit from enhanced efficiency in their
operations, as well as greater ease of use and improved relations with
their applicants.

? A specific list of costs to be recovered that will include, but not be
limited to, an agency’s costs for the following activities:

(1)  Verifying information submitted on the application.
(2)  Reviewing plans, conducting field reviews, and collecting data.
(3) Conducting environmental and engineering studies.
(4) Mitigating impacts to federal lands, facilities, and resources.
(5) Amending resource management plans.
(6) Inspecting and monitoring installation, maintenance, construction,
and
restoration.

This list should reside in the respective agencies’ rules and be posted
on their Web sites.  Identifying specific types of costs in advance
would help applicants in planning projects and also save time and effort
for affected agencies.

Implementation:  All relevant federal land management agencies should
commence rulemakings, as necessary and appropriate, for the purpose of
standardizing and simplifying rights-of-way cost recovery, incorporating
the practices and procedures set forth in the recommendation above.
These agencies should initiate such rulemakings by December 2004.

2. Rental Payments/Compensation

Issue:  In addition to cost recovery fees, rights-of-way applicants also
encounter other land use fees, such as rental fees.  Specifically, a
variety of statutes and regulations direct federal agencies to assess
and collect rent, or obtain consideration for, the use of federal lands,
including for rights-of-way.   As a starting point for calculating
rental payments, most statutes embrace the principle of fair market
value.  For example, the statutes applicable to BLM and the Forest
Service require that rent for the use of public land and national forest
system land be based on “fair market value, as determined by the
Secretary.”   Other agencies have different, but similar, legal
authority.  OMB Circular A-25 provides guidance as well, requiring “user
charges based on market prices . . . that need not be limited to the
recovery of full cost and may yield net revenues.”

In practice, there are several approaches to establishing fair market
value that government agencies commonly use in rights-of-way
management.   The two primary ways of calculating rental payments are
(1) rental fee schedules and (2) real estate appraisals.  BLM and the
Forest Service rely primarily on regulatory rental fee schedules to set
annual rental payments for linear applications and communications
sites.  In general, the communications industry has expressed few
problems with the linear rental fee schedules used by BLM and the Forest
Service, but the annual rates in those schedules are currently
out-of-date.  BLM and the Forest Service currently update rates based on
the annualized change in Implicit Price Deflator-Gross Domestic Product
(IPD-GDP).   However, efforts to update the rental fee schedules during
the last four years have raised concerns about the level of and the
basis for the rates.   The communications industry also has generally
supported the Forest Service/BLM rental schedule for communications
sites (such as for wireless telecommunications uses),  which is adjusted
each year by the annualized change in the Consumer Price Index-Urban
(CPI-U).

In addition to employing rental fee schedules, a number of agencies
routinely use real estate appraisals or nonfederal market rent studies
or surveys to determine the annual land use fee for a license or permit
or the amount of consideration for the conveyance of an easement.   A
few agencies, however, limit their use of real estate appraisals to
establish rental fees for high value rights-of-way.  Besides direct
monetary payments, in-kind compensation has also been used in certain
circumstances.  For example, the Federal Highway Administration’s state
department of transportation partners have used a barter approach, in
some situations receiving the use of fiber optic capacity instead of
cash rents as consideration.

General rental fee schedules and individual real estate appraisals each
have their strengths and weaknesses.  The Working Group’s discussions
with stakeholders revealed that an agency’s use of case-specific real
estate appraisals or market rent surveys require fact-intensive
inquiries, which can slow the application process and may result in
value estimates significantly different than expected by a right-of-way
applicant.  In some cases, appraisals can be complicated by the lack of
market rental data, the limited availability of appraisal expertise, and
inconsistent appraisal methodologies among or within agencies, all of
which can cause a wide range of outcomes for apparently similar
projects.  For determining the precise consideration owed for a
right-of-way, however, appraisals have the potential to provide the most
accurate results.  By contrast, generalized rental schedules may not
work as well for large, complex projects but are attractive because they
are relatively easy to use and they provide greater certainty to
applicants.

In addition, utility corridor rights-of-way may pose significant
challenges to determining correct valuation.  Recent studies in
California and Arizona concluded that corridor markets are basically
“immature and characterized by divergent methodologies and valuation
results.”   Among the problems cited:  (1) confidentiality agreements
inhibit the free flow of information; (2) appraisers may either be
uninformed concerning telecommunications corridor rights-of-way or rely
solely upon one method to solve all appraisal problems; and (3) valuers
may rely upon local markets that may not contain information appropriate
to a particular appraisal problem.

In response to these concerns regarding rental payments, the Working
Group sets forth three recommendations.  The recommendations address the
following three aspects of rental payments/compensation: (1) the entity
responsible for rental payments; (2) general principles applicable to
rental payments; and (3) specific techniques for standardizing and
simplifying rental payments.

Recommendation #1:  First, the Working Group seeks to clarify which
federal agency will be responsible for rental payments on projects
involving more than one agency.  The Working Group’s recommendation is
that for small, uncomplicated inter-agency projects, individual agencies
would continue to be responsible for administering rental payments,
consistent with the principles and techniques discussed below.  For
larger inter-agency projects, improved efficiency may result from the
lead agency collecting rental payments from an applicant on behalf of
all affected agencies (see previous discussion on lead agency).
Implementing this recommendation will redound to the benefit of both
applicants and agencies through establishment of a single point of
contact, better use of agency resources, and significant time savings.

Implementation:  For larger inter-agency projects where the federal
agencies have designated a lead agency, the affected federal agencies
should agree on consolidating rental payment duties and placing them
with the lead agency.  The details of the rental payment procedures may
be set forth in a memorandum of understanding among the agencies or
other appropriate inter-agency document.

Recommendation #2:  Second, the Working Group recommends that the
federal agencies act in accordance with a set of general principles
applicable to rental payments.  The Working Group recommends that
agencies responsible for rental payment functions develop and implement
regulations, or make revisions to policies and practices that result in
rental payment procedures that meet the following criteria:

? Promote predictability and consistency.

? Provide for a transparent compensation system that helps ensure
accountability.

? Use a reasonable market-based rights-of-way valuation approach.

? Provide for agency discretion to make adjustments to rental fees for
purposes of achieving the agency’s mission.

? Afford ease of use by the customer (ready contact; provides for a lead
agency approach where multiple jurisdictions occur; a clear published
explanation of the process).

? Foster ease of use by the agency.

Implementation:  All relevant federal land management agencies should
commence rulemakings, as necessary and appropriate, for the purpose of
developing and implementing regulations for rights-of-way rental payment
processes that incorporate the above criteria.  These agencies should
initiate these rulemakings by December 2004.

Recommendation #3:  Third, the Working Group recommends greater use of
rental fee schedules where periodic rental payments are required.
Rental schedules provide a standardized mechanism for determining rental
fees, thereby removing a great deal of time-consuming, subjective
judgment from the valuation process.  Thus, rental fee schedules can
result in more efficient use of resources, timely processing of
rights-of-way applications, and a more transparent process for all.
However, the Working Group recognizes that greater use of fee schedules
may not be appropriate for some applications, for which other valuation
methods may be better suited.

More specifically:

? With respect to linear featured broadband facilities, all federal land
management agencies should adopt, where practicable, policies and
procedures for rental fees based on the fee schedule rates approach used
by BLM and the Forest Service.  BLM and the Forest Service should update
their rental fee schedules for wireless and linear broadband equipment
on federal lands.

? With respect to rental fees for communications sites (such as for
wireless telecommunications equipment), the Working Group recommends
that all federal agencies that authorize the operation of wireless
telecommunications facilities on federal lands adopt a rental rate
schedule based on the Forest Service/BLM schedule for communications
site uses, thereby establishing an annual rental fee for use and
occupancy of federal lands.

? In both cases, federal agencies should retain authority to grant an
exception, as appropriate, to the use of fee schedules (e.g., to perform
individual appraisals or undertake agreements to receive services
instead of cash) in order to foster efficiencies or other benefits (such
as allowing barter for public services such as safety messages, 911, or
other operational uses), or to further the agency’s mission.  This would
not limit the existing statutory authority agencies may have to
establish rental rates or the amount of consideration for conveyances of
easements.

? Agencies should use rental fee schedules where practicable.  In
addition to the above stated exceptions, however, agencies should
consider obtaining an appraisal rather than refer to a rental rate
schedule if the valuation problem is complex, the value of the rights to
be granted is likely to substantial, or the conveyance of an easement is
contemplated.

? In order to provide consistency in rental fees and avoid duplicating
efforts, federal agencies should share information about methodologies
for determining fair market rental values, and other information, as
they develop and update rental fee schedules and as they perform
individual appraisals.  Avoiding duplication should enhance efficiency
in processing rents and ensure greater consistency among agencies.

Implementation:  All relevant federal land management agencies that are
not currently using fee schedules or who are using them infrequently
should commence rulemakings, as necessary and appropriate, for the
purpose of greater use of fee schedules in determining rights-of-way
rental payments.   Agencies should initiate these rulemakings by
December 2004.

D.  Compliance

As the trustee of public lands, the Federal Government is responsible
for preserving, to the extent possible, the natural state of wilderness,
coastal, and other protected lands,   and for sustaining the
productivity of the lands’ renewable and other resources.   At the same
time, most federal land management agencies are obligated to optimize
the lands’ utility by accommodating multiple uses, including
recreational and commercial uses, which benefit the Nation.   To ensure
that the government appropriately balances its dual responsibilities, a
variety of laws permit private sector use of federal land but require
rights-of-way holders to restore land, to the extent possible, to its
original condition following installation of a commercial facility.
Certain environmental and historic preservation, protection, and
restoration measures are required.  Land management agencies, in turn,
incorporate these requirements as conditions of the right-of-way.

Although permit holders have a legal duty to properly install and
maintain their facilities, their commercial interests give them an added
incentive to do so.  Permit holders generally recognize that obtaining
authorization to locate their equipment on federal lands depends upon
their adherence to the permit’s terms.  They are usually well aware of
these terms since they frequently negotiate compliance and other
requirements during the NEPA and NHPA review process prior to the
permit’s approval.  Therefore, in the Working Group members’ experience,
monitoring and related compliance activities are ordinarily the least
problematic aspects of rights-of-way administration at the federal
level.

Nonetheless, the Working Group has identified some aspects of monitoring
and compliance that federal land managers could improve.  Based on our
discussions with stakeholders and our own research, the Working Group
found that compliance issues fall into the following main categories:
(1) ensuring the proper installation and maintenance of facilities, (2)
addressing unanticipated costs, and (3) imposing penalties for
noncompliance.

1.  Ensuring Proper Installation and Maintenance of Facilities

Issue:  During a project’s initial construction, agency staff ordinarily
ensure that the linear or site facility installation complies with
pre-approved specifications and any accompanying agreements or site
plans.   Following construction, agencies often rely on field personnel
to inspect the facilities periodically.  In the rare instance of
abandonment or termination of a right-of way, field personnel would also
inspect for proper facilities removal and premises restoration.

BLM and the Forest Service, two of the largest federal land management
agencies, function through a decentralized system of field office
operations.  BLM’s workforce comprises 10,000 employees located at its
headquarters and national centers, and over 180 state and field offices
to oversee more than 261 million acres of public lands located primarily
in the western states and Alaska plus a total of 700 million acres of
subsurface mineral estate.   As of August 2002, the agency was handling
a total of about 85,000 rights-of-way.  Over the last several years, BLM
has experienced an annual ten percent increase in the number of
rights-of-way applications received, and has processed about 5,500 such
matters each year.   Similarly, the Forest Service, through a network of
nine regional offices, manages 155 national forests and 20 grasslands
totaling 192 million acres.   Through its special uses program, the
Forest Service has approved more than 72,000 authorizations for more
than 150 types of uses, including telecommunications and utility
rights-of-way.

The breadth of these agencies’ responsibilities to balance the public’s
many uses of the extensive and diverse national lands they administer
may limit at any given time the human or financial resources available
in the field to address compliance matters.  In reality, rights-of-way
compliance monitoring is one of many tasks of agencies’ field personnel,
who prioritize monitoring among their other mission critical
responsibilities, such as, for example, battling forest fires,
responding to other emergencies, and assisting tourists.  For the most
part, field personnel seem to handle routine right-of-way compliance
satisfactorily.  In field offices lacking staff with the necessary
expertise or the funds for such activities, however, additional
resources could help to improve post-construction compliance monitoring.

Federal agencies’ capacity to fund compliance activities varies widely.
Some agencies have imposed fees for this purpose.  For example, BLM has
implemented a fee schedule to reimburse the government for the cost of
monitoring its simpler projects, which it classifies in categories of
increasing complexity from I-IV.  The fees in these categories range
from $50 to $200 to monitor the project’s construction, operation,
maintenance, and termination and for the protection and rehabilitation
of the affected lands.   BLM designates as category V projects those
that are large, complex, and require the gathering of original data to
comply with NEPA and other statutes, and at least three field
examinations.   The Category V permit holder pays the monitoring fee and
other costs on a periodic basis before the government incurs them.
NOAA, which administers sub-marine rights-of-way for communications
cables, and the Army Corps of Engineers are other examples of agencies
that charge specific fees for monitoring rights-of-way.

By contrast, under the Department of the Navy’s current practice, that
agency may only recover costs associated with rights-of-way
administration during the fiscal year in which the construction
occurred.  Therefore, the Navy must recover up front any costs for
routine compliance monitoring or other activities incurred during
subsequent fiscal years.  The Navy administers relatively few
rights-of-way, which mitigates to some extent the potential burden that
this practice might impose on its resources.

Recognizing that agencies rely on their field personnel to perform an
array of duties that can shift depending upon the office’s needs at a
particular time, the Working Group recommends the following measures to
enhance staffing and funding for rights-of-way administration and
compliance monitoring.

Recommendation #1:  First, federal agencies with staff involved in
granting and monitoring rights-of-way should make formal training on
these issues available to them.  Whether offered by the agencies
themselves or by outside organizations, such training would particularly
benefit field personnel who rarely handle rights-of-way matters.  The
training would help to familiarize them with these issues and emphasize
the importance of their prompt response.  Both BLM and the International
Rights of Way Association offer training that is open to individuals
outside of their organizations.   Several years ago BLM extended to 16
weeks its training for professional realty specialists at the Lands
Academy of the National Training Center.  The academy offers a beginning
session each year and an additional two sessions at different times
during the year.  The agency expanded the course to increase the base
knowledge of its workforce.   BLM currently offers several training
courses for BLM, Forest Service, and industry participation.  Those
courses cover managing major rights-of-way projects, electric systems,
pipeline systems, and wireless telecommunications.  BLM and the Forest
Service also offer a course to BLM/Forest Service managers called
National Lands Training for Managers and Program Leaders.  The Working
Group strongly encourages all federal land management agencies to make
available to their staff these or other relevant training opportunities
that may exist.

Implementation:  By August 2004, all federal agencies offering training
on rights-of-way administration should begin to publicize on their Web
sites and through other effective means the availability of
rights-of-way training and the eligibility requirements to attend.  In
addition, by August 2004, all federal land management agencies,
regardless of whether they provide in-house training, should designate
staff to identify regularly and disseminate promptly information about
rights-of way training opportunities to the appropriate staff.

Recommendation #2:  Second, federal agencies should inform grantees of
the option of hiring reputable third-party contractors, who in
conjunction with agency compliance monitors, ensure that grantees
properly perform planning and environmental studies, and initial phase
construction work to the agency’s satisfaction. These contractors are
not substitutes for federal personnel, but work closely with them as
agents of rights-of-way applicants.  A knowledgeable contractor may be
an invaluable resource to help applicants navigate an agency’s
rights-of-way process, and thereby minimize delays that could result
from incomplete or unsatisfactory submissions.  Therefore, contractors
may expedite facility construction by preparing rights-holders for
compliance inspections and other monitoring activities, including
reporting to federal land managers the grantee’s observance of work plan
requirements.  Given agencies’ limited resources, their personnel can be
most effective when working with experienced contractors.  Rights-of-way
applicants may receive desired approvals more quickly, which may lower
long run project costs.

The Working Group in no way intends to suggest that agencies require the
use of third-party contractors.  Instead the suggestion results from
successful dealings of BLM and the Forest Service with third-party
contractors.  The agencies noted in particular that contractors’
experience with NEPA’s lengthy processes and complex procedures enables
the contractors to prepare necessary documents and to check their
client’s compliance with any NEPA requirements included in the grant
before any formal inspections by federal rights-of-way administrators.

Implementation:  By August 2004, through postings on their Web sites and
through communications with applicants and grantees, federal agencies
should begin to notify rights-of-way applicants of the option of hiring
reputable third-party contractors, who in conjunction with agency
compliance monitors, will ensure that grantees properly perform planning
and environmental studies, and initial phase construction work.

Recommendation #3:  Third, for multi-agency projects, the appointment of
a lead agency would improve coordination of compliance matters.
Similarly, more efficient compliance could occur if federal land
management agencies appoint a project manager to improve intra-agency
communications.  A lead agency or project manager can develop
comprehensive rights-of-way compliance requirements that enable the
agencies involved to adequately assess whether the right-holder has
fulfilled installation, restoration, maintenance, and other
obligations.  By
coordinating the agencies’ various reporting and monitoring
requirements, lead agency personnel and project managers minimize the
burden on rights-of-way permit holders.  They can also advance projects
by organizing government personnel and budget resources to maximize
their use and expedite projects.  In that way, lead agencies and project
managers can supplement field office staff to ensure availability of the
necessary expertise for compliance monitoring and other purposes.

Implementation:  As previously described in section III. B.2. of this
report, by August 2004, federal agencies should adopt internal operating
procedures for designating a lead agency when federal, state, local,
and/or tribal authorities are participating in a project.  For complex
projects, the government entities should memorialize the lead agency’s
responsibilities in a memorandum of understanding, other inter-agency
agreement, or written correspondence.   In addition, agencies should
incorporate project manager responsibilities into the work plans of
appropriate employees and train them to perform these tasks (see above
discussion on lead agency and project managers).

Recommendation #4:  Fourth, federal agencies should require grantees to
submit periodic compliance reports, which will facilitate necessary
inspections and reduce the need for some physical monitoring.   The
reports would provide concise status updates and limited, but essential,
information that the agencies need for their compliance monitoring.
NOAA, for example, requires post-installation and annual status
reports.  The report information could help to better focus undersea
cable inspections, using expensive remotely operated vehicles or manned
submersibles, primarily in areas where problems are likely to arise.  In
addition, BLM and the Forest Service require communications site
rights-of-way holders to provide an annual inventory of a site’s
tenants.  The agencies then use the inventory, among other things, to
verify authorized users on sites where multiple users are sharing
facilities on the right-of-way.  The information in these and similar
reports can assist federal land managers in fulfilling their monitoring
responsibilities, while assisting industry members in discharging their
maintenance and compliance duties.  Early detection of potential
problems will help both parties to resolve them more easily before they
develop into more serious issues.

Implementation:  Federal agencies that do not routinely require
compliance reports should incorporate the requirement into their
rights-of-way procedures.  Some agencies may determine that adopting a
new rule requiring telecommunications rights-of-way holders to file
periodic reports requires notice and comment.  If so, such agencies
should initiate rulemaking, as necessary and appropriate, by December
2004.

Recommendation #5:  Fifth, the Working Group recommends that all
agencies recover their monitoring and compliance costs under the
specific statutes governing their agencies and/or the broad authority
granted them pursuant to the easement granting authority of 40 U.S.C.
§ 1314, as recodified by Public Law 107-217.   NOAA, BLM, and the Army
Corps of Engineers currently charge such fees and the Forest Service is
promulgating cost recovery regulations similar to BLM’s.  However, until
the Forest Service finalizes and adopts such regulations, it will
continue to use voluntary fee collection agreements to recover the costs
of conducting some of its monitoring activities, primarily on large
scale projects.

The Working Group recommends that agencies that have not adopted rules
to execute their authority to recover monitoring fees follow the
guidance provided in OMB Circular
No. A-25.  The circular directs agencies to recover the full costs of
managing federal rights-of-way, including monitoring and other
compliance activities.  Therefore, as described previously in section
III. C.1. on “Cost Recovery,” federal agencies should clearly identify
the costs they seek to recover and adopt the recommended techniques for
streamlining cost recovery.

Implementation:  By December 2004, any relevant federal land management
agency that does not recover its monitoring and compliance costs should
commence a rulemaking, as necessary and appropriate, to adopt rules to
execute its authority to recover such costs.

2. Addressing Unanticipated Costs

Issue:  In the Working Group’s experience, federal grantees rarely
abandon uncompleted projects or fail to seek renewal of expiring
rights-of-way or re-assignment for successor companies.  Having
determined that access to federal lands is essential to their ability to
provide service, rights-of-way holders are usually reluctant to
relinquish this access barring extraordinary circumstances.  To do so
could adversely affect their or their successor’s service, and
abandoning a grant might jeopardize future rights-of-way applications or
other government benefits.  In the unusual case in which an agency must
remove an abandoned installation or one located on an expired or
terminated right-of-way, the government may incur unforeseen expenses.

Although unlikely, if a company de-commissions a site on federal land,
it has usually agreed in advance to the restoration measures it will
undertake.   If, however, a rights holder abdicates its responsibility
to return the property to its previous condition, the Federal Government
would then assume the task and the associated costs.  Similarly, an
agency could confront unanticipated costs if a grantee fails to restore
government property to its previous condition following rights-of-way
construction.  Agencies may avoid even infrequent and, usually minimal,
rights-of-way compliance expenditures, by requiring a bond or other
means of securing performance.

NOAA’s recent experience with submarine cables demonstrates the
difficulty that may arise without the protection of a bond.  NOAA did
not require performance bonds from two companies that had received
permission to install fiber optic cable in two different national marine
sanctuaries.  Post-installation surveys and monitoring of one of the
submarine cables revealed unburied cable in some places along its
route.  At other locations, portions of cable were suspended, in one
instance up to several feet above the seabed.  Exposed and inadequately
buried cables can present a hazard to commercial fishermen who might
snag their fishing gear, and to fish and marine mammals that might then
become entangled.  Both cable companies sought protection in bankruptcy
or insolvency proceedings and were unable to pay for monitoring and
other fees required by their permits.  A qualified buyer has assumed
responsibility for one of the  cables and payments have resumed; however
the other cable system (the one with exposed segments) remains the
subject of a bankruptcy proceeding.

Recommendation:  The Working Group recommends that agencies use their
authority under 40 U.S.C. § 1314, or other appropriate statutes, to
impose reasonable, but adequate, bonding requirements to secure
fulfillment of a grantee’s compliance obligations.    Circumstances
might require agencies to engage expert advice to help forecast the
costs of maintaining rights-of-way or removing structures from them,
which will help the agencies to establish feasible bond amounts.

Implementation:  By August 2004, any relevant federal land management
agency that has not adopted rules to implement its authority to impose
reasonable, but adequate, bonding requirements should commence a
rulemaking, as necessary and appropriate, to adopt such rules.

3.  Imposing Penalties for Noncompliance

Issue:  The integrity of the government’s rights-of-way programs depends
in part upon the government’s ability to compel a grantee’s compliance
with its obligations under the right-of-way grant.  If a grantee fails
to comply with the terms and conditions of a rights-of-way grant, then
the government may seek to remedy the violation and to deter others by
imposing fines or terminating the grant.

Agencies may suspend a right-of-way authorization until the grantee
complies within a fixed time period with applicable terms and
conditions.   In addition, all land management agencies have the
authority to terminate a right-of-way grant for cause, but rarely use
this power.  Their reluctance to do so may result from concerns about
service interruptions to innocent third parties.  Authority to suspend
or terminate rights-of-way grants, while helpful, may not be sufficient
to obtain compliance from a recalcitrant rights-holder that
intentionally and continually violates the terms of the grant.  In such
egregious instances, the government should have a strong enforcement
tool at its disposal, particularly when termination is not a viable
option.

Recommendation:  Fines offer an effective way of satisfactorily
punishing compliance violators, while deterring future violations.
NOAA, for example, has the authority under the National Marine
Sanctuaries Act to impose civil penalties up to $120,000 per day per
violation, and to seek criminal penalties in limited circumstances.  The
Forest Service, which has no specific regulatory framework to impose
fines, may, as a last resort, seek criminal citations that may require a
fine.

Implementation:  All federal land management agencies should, within a
year of the date of this report, determine their ability to impose fines
or other penalties for noncompliance.  If an agency has no such ability
and determines that it requires such authority to enhance its compliance
program, then that agency should also determine what steps are necessary
to secure such authority.
 Conclusion

The Working Group has provided a series of recommendations -- covering
information access and collection, timely process, fees, and compliance
-- that we believe will improve rights-of-way management for all
affected parties, while fostering greater broadband deployment across
this Nation.  In the months ahead, the Working Group will assist the
federal agencies and other stakeholders in implementing our
recommendations to help meet the President’s challenge of ensuring
affordable access to broadband technology for all Americans by 2007.

To ensure that the recommendations in this report are implemented in a
timely manner, the Working Group believes that it is important to review
the federal agencies’ progress in adopting the recommendations.
Specifically, the Working Group recommends that OMB ask each of the
federal land management agencies to prepare a report of their efforts to
implement the Working Group’s recommendations.  The individual reports
should list specific steps that each agency took, as well as any
additional steps that still need to be taken to implement the
recommendations.  The reports should be submitted to OMB no later than
twelve months from the release date of this report.

The Working Group again wishes to extend our sincere thanks to all of
the individuals who participated in this effort.  Through your
continuing efforts, we will help bring the promise of broadband to the
American people

National Telecommunications and Information Administration

 http://www.ntia.doc.gov/reports/fedrow/FROWReport_4-23-2004.doc

U.S. DEPARTMENT OF COMMERCE

1401 Constitution Avenue, N.W.
Washington, D.C.  20230
(202) 482-7002

www.ntia.doc.gov

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