§ 1764. — General requirements.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 43USC1764]
TITLE 43--PUBLIC LANDS
CHAPTER 35--FEDERAL LAND POLICY AND MANAGEMENT
SUBCHAPTER V--RIGHTS-OF-WAY
Sec. 1764. General requirements
(a) Boundary specifications; criteria; temporary use of additional lands
The Secretary concerned shall specify the boundaries of each right-
of-way as precisely as is practical. Each right-of-way shall be limited
to the ground which the Secretary concerned determines (1) will be
occupied by facilities which constitute the project for which the right-
of-way is granted, issued, or renewed, (2) to be necessary for the
operation or maintenance of the project, (3) to be necessary to protect
the public safety, and (4) will do no unnecessary damage to the
environment. The Secretary concerned may authorize the temporary use of
such additional lands as he determines to be reasonably necessary for
the construction, operation, maintenance, or termination of the project
or a portion thereof, or for access thereto.
(b) Terms and conditions of right-of-way or permit
Each right-of-way or permit granted, issued, or renewed pursuant to
this section shall be limited to a reasonable term in light of all
circumstances concerning the project. In determining the duration of a
right-of-way the Secretary concerned shall, among other things, take
into consideration the cost of the facility, its useful life, and any
public purpose it serves. The right-of-way shall specify whether it is
or is not renewable and the terms and conditions applicable to the
renewal.
(c) Applicability of regulations or stipulations
Rights-of-way shall be granted, issued, or renewed pursuant to this
subchapter under such regulations or stipulations, consistent with the
provisions of this subchapter or any other applicable law, and shall
also be subject to such terms and conditions as the Secretary concerned
may prescribe regarding extent, duration, survey, location,
construction, maintenance, transfer or assignment, and termination.
(d) Submission of plan of construction, operation, and rehabilitation by
new project applicants; plan requirements
The Secretary concerned prior to granting or issuing a right-of-way
pursuant to this subchapter for a new project which may have a
significant impact on the environment, shall require the applicant to
submit a plan of construction, operation, and rehabilitation for such
right-of-way which shall comply with stipulations or with regulations
issued by that Secretary, including the terms and conditions required
under section 1765 of this title.
(e) Regulatory requirements for terms and conditions; revision and
applicability of regulations
The Secretary concerned shall issue regulations with respect to the
terms and conditions that will be included in rights-of-way pursuant to
section 1765 of this title. Such regulations shall be regularly revised
as needed. Such regulations shall be applicable to every right-of-way
granted or issued pursuant to this subchapter and to any subsequent
renewal thereof, and may be applicable to rights-of-way not granted or
issued, but renewed pursuant to this subchapter.
(f) Removal or use of mineral and vegetative materials
Mineral and vegetative materials, including timber, within or
without a right-of-way, may be used or disposed of in connection with
construction or other purposes only if authorization to remove or use
such materials has been obtained pursuant to applicable laws or for
emergency repair work necessary for those rights-of-way authorized under
section 1761(c) of this title.
(g) Rental payments; amount, waiver, etc.
The holder of a right-of-way shall pay in advance the fair market
value thereof, as determined by the Secretary granting, issuing, or
renewing such right-of-way. The Secretary concerned may require either
annual payment or a payment covering more than one year at a time except
that private individuals may make at their option either annual payments
or payments covering more than one year if the annual fee is greater
than one hundred dollars. The Secretary concerned may waive rentals
where a right-of-way is granted, issued or renewed in consideration of a
right-of-way conveyed to the United States in connection with a
cooperative cost share program between the United States and the holder.
The Secretary concerned may, by regulation or prior to promulgation of
such regulations, as a condition of a right-of-way, require an applicant
for or holder of a right-of-way to reimburse the United States for all
reasonable administrative and other costs incurred in processing an
application for such right-of-way and in inspection and monitoring of
construction, operation, and termination of the facility pursuant to
such right-of-way: Provided, however, That the Secretary concerned need
not secure reimbursement in any situation where there is in existence a
cooperative cost share right-of-way program between the United States
and the holder of a right-of-way. Rights-of-way may be granted, issued,
or renewed to a Federal, State, or local government or any agency or
instrumentality thereof, to nonprofit associations or nonprofit
corporations which are not themselves controlled or owned by
profitmaking corporations or business enterprises, or to a holder where
he provides without or at reduced charges a valuable benefit to the
public or to the programs of the Secretary concerned, or to a holder in
connection with the authorized use or occupancy of Federal land for
which the United States is already receiving compensation for such
lesser charge, including free use as the Secretary concerned finds
equitable and in the public interest. Such rights-of-way issued at less
than fair market value are not assignable except with the approval of
the Secretary issuing the right-of-way. The moneys received for
reimbursement of reasonable costs shall be deposited with the Treasury
in a special account and are hereby authorized to be appropriated and
made available until expended. Rights-of-way shall be granted, issued,
or renewed, without rental fees, for electric or telephone facilities
eligible for financing pursuant to the Rural Electrification Act of
1936, as amended [7 U.S.C. 901 et seq.], determined without regard to
any application requirement under that Act, or any extensions from such
facilities: Provided, That nothing in this sentence shall be construed
to affect the authority of the Secretary granting, issuing, or renewing
the right-of-way to require reimbursement of reasonable administrative
and other costs pursuant to the second sentence of this subsection.
(h) Liability for damage or injury incurred by United States for use and
occupancy of rights-of-way; indemnification of United States;
no-fault liability; amount of damages
(1) The Secretary concerned shall promulgate regulations specifying
the extent to which holders of rights-of-way under this subchapter shall
be liable to the United States for damage or injury incurred by the
United States caused by the use and occupancy of the rights-of-way. The
regulations shall also specify the extent to which such holders shall
indemnify or hold harmless the United States for liabilities, damages,
or claims caused by their use and occupancy of the rights-of-way.
(2) Any regulation or stipulation imposing liability without fault
shall include a maximum limitation on damages commensurate with the
foreseeable risks or hazards presented. Any liability for damage or
injury in excess of this amount shall be determined by ordinary rules of
negligence.
(i) Bond or security requirements
Where he deems it appropriate, the Secretary concerned may require a
holder of a right-of-way to furnish a bond, or other security,
satisfactory to him to secure all or any of the obligations imposed by
the terms and conditions of the right-of-way or by any rule or
regulation of the Secretary concerned.
(j) Criteria for grant, issue, or renewal of right-of-way
The Secretary concerned shall grant, issue, or renew a right-of-way
under this subchapter only when he is satisfied that the applicant has
the technical and financial capability to construct the project for
which the right-of-way is requested, and in accord with the requirements
of this subchapter.
(Pub. L. 94-579, title V, Sec. 504, Oct. 21, 1976, 90 Stat. 2778; Pub.
L. 98-300, May 25, 1984, 98 Stat. 215; Pub. L. 99-545, Sec. 2, Oct. 27,
1986, 100 Stat. 3048; Pub. L. 104-333, div. I, title X, Sec. 1032(a),
Nov. 12, 1996, 110 Stat. 4239.)
References in Text
The Rural Electrification Act of 1936, referred to in subsec. (g),
is act May 20, 1936, ch. 432, 49 Stat. 1363, as amended, which is
classified generally to chapter 31 (Sec. 901 et seq.) of Title 7,
Agriculture. For complete classification of this Act to the Code, see
section 901 of Title 7 and Tables.
Amendments
1996--Subsec. (g). Pub. L. 104-333 substituted ``eligible for
financing pursuant to the Rural Electrification Act of 1936, as amended,
determined without regard to any application requirement under that
Act,'' for ``financed pursuant to the Rural Electrification Act of 1936,
as amended,''.
1986--Subsec. (f). Pub. L. 99-545, Sec. 2(1), inserted before the
period at end ``or for emergency repair work necessary for those rights-
of-way authorized under section 1761(c) of this title''.
Subsec. (g). Pub. L. 99-545, Sec. 2(2), substituted ``The holder of
a right-of-way shall pay in advance the fair market value thereof, as
determined by the Secretary granting, issuing, or renewing such right-
of-way. The Secretary concerned may require either annual payment or a
payment covering more than one year at a time except that private
individuals may make at their option either annual payments or payments
covering more than one year if the annual fee is greater than one
hundred dollars. The Secretary concerned may waive rentals where a
right-of-way is granted, issued or renewed in consideration of a right-
of-way conveyed to the United States in connection with a cooperative
cost share program between the United States and the holder.'' for ``The
holder of a right-of-way shall pay annually in advance the fair market
value thereof as determined by the Secretary granting, issuing, or
renewing such right-of-way: Provided, That when the annual rental is
less than $100, the Secretary concerned may require advance payment for
more than one year at a time: Provided further, That the Secretary
concerned may waive rentals where a right-of-way is granted, issued, or
renewed in reciprocation for a right-of-way conveyed to the United
States in connection with a cooperative cost share program between the
United States and the holder.''
1984--Subsec. (g). Pub. L. 98-300 inserted at end ``Rights-of-way
shall be granted, issued, or renewed, without rental fees, for electric
or telephone facilities financed pursuant to the Rural Electrification
Act of 1936, as amended, or any extensions from such facilities:
Provided, That nothing in this sentence shall be construed to affect the
authority of the Secretary granting, issuing, or renewing the right-of-
way to require reimbursement of reasonable administrative and other
costs pursuant to the second sentence of this subsection.''
Effective Date of 1996 Amendment
Section 1032(b) of Pub. L. 104-333 provided that: ``The amendment
made by subsection (a) [amending this section] shall apply with respect
to rights-of-way leases held on or after the date of enactment of this
Act [Nov. 12, 1996].''
Transfer of Functions
See note set out under section 1763 of this title.
