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This propoesd rule would update the processing of applications for communications facilities, thus facilitating the availability of public land for broadband use in rural America. It would also update communications uses rental fees to ensure that the Federal Government is receiving the fair market value for the use of the public’s lands. The regulation would update cost recovery fees to be consistent with BLM costs for processing and monitoring rights-of-way.

On January 8, 2018, the President issued Executive Order (EO) 13821 establishing a policy stating that . . . executive branch agencies use all viable tools to accelerate the deployment and adoption of affordable, reliable, modern high-speed broadband connectivity to rural America. . .. The President issued a memorandum dated January 8, 2018, requesting the Secretary of the Interior to develop a plan to support rural broadband development and adoption by increasing access to tower facilities and other infrastructures managed by the Department of the Interior (DOI). The BLM is one of the principal agencies that authorizes the use of public lands for communication facilities, including broadband use. In a report prepared by the DOI at the behest of the President, one of the recommendations was to develop a rule that would update the rental rates being charged for communications uses on public lands.

The report found that, although rental rates were to be evaluated by the BLM every 10 years, the last review was in 1994. This proposed rule would provide an update to rental determination processes and encourage the use of Master Agreements to enhance the communications uses application process. Master Agreements are a tool by which an applicant can develop an agreement with the BLM to process several applications for broadband at one time, thereby eliminating steps that would be duplicative if each application were to be considered separately.

On March 23, 2018, the President signed into law the Consolidated Appropriations Act, 2018 (Pub.L. 115141), which included the Mobile Now Act. The Mobile Now Act provided direction for communications facilities deployment on Federal property, and broadband infrastructure deployment.

In addition to the proposed changes for communications uses, the BLM has determined that the existing right-of-way cost recovery fee collections do not adequately cover the costs incurred by the BLM for processing and monitoring right-of-way applications and grants. In addition, it was found that there are some right-of-way activities that are not part of either the processing or monitoring tasks, and are really administrative in nature. This proposed rule would simplify the cost recovery process and enhance the use of Master Agreements for right-of-way entities, including those that are involved with requesting communication sites for broadband use.

The collection of cost recovery payments to reimburse the United States for its expenses in performing right-of-way work on public lands, and in some instances, other Federal lands is authorized by statute (43 U.S.C. 1734, 1764). The right-of-way cost recovery regulations, last issued in April 2005, had a proviso that required the BLM to re-evaluate its cost recovery fees for each cost recovery category, and the categories themselves, within 5 years after they went into effect and at 10-year intervals after that. A cost recovery category is a defined range of work hours required to undertake work pertaining to an application or grant. There are four minor categories (Categories 1 through 4), one category devoted to Master Agreements (Category 5) and a major category (Category 6) that is used when final resources expended by the Federal Government exceed 50 hours . The BLM completed its initial re-evaluation in December 2010 and has continued to evaluate data received through the end of fiscal year (FY) 2017. These data have shown that this proposed rule is necessary to update the BLM’s cost recovery regulations for rights-of-way.