
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[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.
