Land Uses; Special Uses; Annual Programmatic Administrative Fee for Communications Use Authorizations
| Citation | 86 FR 72540 |
| Published date | 22 December 2021 |
| Record Number | 2021-27681 |
| Court | Forest Service |
Federal Register, Volume 86 Issue 243 (Wednesday, December 22, 2021)
[Federal Register Volume 86, Number 243 (Wednesday, December 22, 2021)]
[Proposed Rules]
[Pages 72540-72546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27681]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 251
RIN 0596-AD44
Land Uses; Special Uses; Annual Programmatic Administrative Fee
for Communications Use Authorizations
AGENCY: Forest Service, Agriculture (USDA).
ACTION: Proposed rule.
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SUMMARY: The Forest Service (Agency), U.S. Department of Agriculture,
is proposing to amend its existing regulations to charge a statutorily
required annual programmatic administrative fee for new and existing
communications use authorizations to cover the costs of administering
the Agency's communications use program. Existing communications use
authorizations would be amended to provide for payment of the required
annual programmatic administrative fee.
DATES: Comments must be received in writing by February 22, 2022.
ADDRESSES: Comments, identified by RIN 0596-AD44, may be submitted via
one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for sending comments.
2. Mail: Director, Lands & Realty Management Staff, 201 14th Street
SW, Washington, DC 20250-1124.
3. Hand Delivery: Director, Lands & Realty Management Staff, 1st
Floor South East, 201 14th Street SW, Washington, DC 20250-1124.
All timely comments, including names and addresses when provided,
will be placed in the record and will be available for public
inspection and copying. The public may review comments at Office of the
Director, Lands & Realty Management, 1st Floor Southeast, Sidney R.
Yates Federal Building, 201 14th Street SW, Washington, DC, during
normal business hours. Visitors are encouraged to call ahead at 202-
205-3563 to facilitate entry into the building.
FOR FURTHER INFORMATION CONTACT: Joey Perry, Lands & Realty Management
Staff, 530-251-3286, [email protected]. Individuals who use
telecommunication devices for the deaf/hard-of-hearing (TDD) may call
the Federal Relay Service (FRS) at 1-800-877-8339 between 8:00 a.m. and
5:00 p.m., 24 hours per day, every day of the week, including holidays.
SUPPLEMENTARY INFORMATION:
Background
The Agency is responsible for managing Federal lands that are
adjacent to rural and urban areas. These rural and urban communities
depend on Federal lands for critical communications services, including
emergency services, internet service, cellular communications, and
television and radio broadcasting services. The Agency authorizes the
use and occupancy of National Forest System (NFS) lands for
communications facilities (buildings, towers, and ancillary
improvements and fiber optic cable) that provide these critical
communications services. The Agency administers over 3,700 special use
authorizations for infrastructure that supports over 10,000 wireless
communications uses at 1,367 communications sites and administers over
400 special use authorizations for fiber optic cable communications
uses on NFS lands.
The U.S. Department of Agriculture's Rural Prosperity Task Force
Report of 2017 identified connecting rural communities across the
United States as a strategic priority for USDA because ``[i]n today's
information-driven global economy, e-connectivity is not simply an
amenity--it has become essential.''
Executive Order 13821, Streamlining and Expediting Requests to
Locate Broadband Facilities in Rural America, issued January 8, 2018,
states that ``Americans need access to reliable, affordable broadband
internet service to succeed in today's information-driven, global
economy'' (83 FR 1507). Executive Order 13821 directs Federal agencies
``to use all viable tools to accelerate the deployment and adoption of
affordable, reliable, modern high-speed broadband connectivity to rural
America. . . .'' Id. Agencies are encouraged to reduce barriers to
capital investments, remove obstacles to broadband services, and more
efficiently employ Government resources. Id.
On June 12, 2020, a Secretarial Memorandum was issued to the Chief
of the Forest Service, which directs the Agency to focus resources on
activities that support the productive use of NFS lands to deliver
goods and services efficiently and effectively to meet the needs of the
public. The Agency was specifically directed to expedite broadband
development on NFS lands to increase connectivity in rural America.
Need for the Proposed Rule
Regardless of where they live, consumers require reliable
communications services. The need for wireless connectivity for
teleworking, tele-education, telehealth, and telemedicine is even more
vital considering events like the COVID-19 pandemic. To meet the demand
for these critical services, the Agency must be prepared to do its part
by ensuring it has the necessary staff and expertise to administer its
communications use program.
In addition to being statutorily mandated as outlined below, the
annual programmatic administrative fee would provide the funds
necessary to support a more modernized, efficient, and enhanced
communications use program. Programmatic administrative fee revenues
would be used to reduce the backlog of expired communications use
authorizations; streamline implementation by fully staffing the
program; enhance automated applications; improve internal and external
outreach, including training for employees; fund the national billing
team; conduct national oversight; and obtain or improve access to
communications sites.
The Agriculture Improvement Act of 2018 (the 2018 Farm Bill) was
signed into law on December 20, 2018. Title VIII, Subtitle G, section
8705, of the 2018 Farm Bill, as amended by Division D, Title IV,
section 416, of the Further Consolidated Appropriations Act, 2020 (Pub.
L. 116-94), codified as 43 U.S.C. 1761a, requires the Agency to charge
an annual programmatic administrative fee for communications use
authorizations to cover the costs of the Agency's communications use
program. Specifically, section 8705(c)(3)(B) directs the Agency to
issue regulations that require a structure of fees for issuing
communications use authorizations based on the cost to the Agency for
any maintenance or other activities required to be performed by the
Agency as a result of the location or modification of a communications
[[Page 72541]]
facility. Section 8705 of the 2018 Farm Bill, as amended, also
authorizes the Agency to retain and spend annual programmatic
administrative fee revenues to cover the costs of the Agency's
communications use program. The proposed rule would implement the
statutory requirement to charge an annual programmatic administrative
fee for communications use authorizations to cover the costs of
administering the Agency's communications use program.
Current Forest Service regulations at 36 CFR part 251, subpart B,
govern the processing of special use applications and issuance of
special use authorizations for uses of NFS lands, including
communications uses. Forest Service Handbook (FSH) 2709.11, Chapter 90,
provides direction for communications use management, including
processing of communications use applications and administration of
communications use authorizations. The following is a description of
the proposed regulatory and directive revisions needed to comply with
section 8705 of the 2018 Farm Bill.
Proposed Revisions to Existing Regulations
Section 251.54(g)(5) of the Agency's current regulations sets forth
the Agency's procedures for authorization of a special use. The Agency
proposes to implement section 8705(c)(3)(B) of the 2018 Farm Bill by
adding a new subparagraph to Sec. 251.54(g)(5), which governs the
issuance of special use authorizations. Consistent with section
8705(c)(3)(B), new paragraph (g)(5)(iii) would require that an annual
programmatic administrative fee be charged for communications use
authorizations to cover the costs of administering the Agency's
communications use program.
Section 8705(f)(4) of the 2018 Farm Bill provides that programmatic
administrative fee revenues are to be used to cover any costs incurred
by the Agency in administering its communications use program,
including but not limited to the costs of on-site reviews of
communications sites, developing communications site management plans,
hiring and training personnel for the communications use program,
conducting internal and external outreach for and national oversight of
the communications use program, and obtaining or improving access to
communications sites on NFS lands. This annual programmatic
administrative fee would be in addition to land use fees assessed based
on the fair market value of the rights and privileges granted by each
communications use authorization, as provided for in existing
regulations at 36 CFR 251.57. The Agency does not have authority to
retain and spend the land use fees it collects for communications uses,
which must be deposited into the United States Treasury. In addition,
the Agency charges fees to recover the Agency's costs for processing
communications use applications and monitoring compliance with
communications use authorizations, as provided for in existing
regulations at 36 CFR 251.58. Cost recovery fees are charged to
specific applicants for and holders of a communications use
authorization to cover costs associated with processing their
application and monitoring compliance with their communications use
authorization. Neither of these existing fees covers the programmatic
costs of administering the communications use program.
To meet the requirements of section 8705 of the 2018 Farm Bill, the
Agency proposes to charge an annual programmatic administrative fee of
$1,400 per communications use authorization for wireless uses such as
television and radio broadcasting, cellular telephone, and microwave
and $400 per communications use authorization for fiber optic cable.
The annual programmatic administrative fee for authorizations for fiber
optic cable would be lower because authorizations for this type of use
have lower programmatic administrative costs, as explained below. These
two programmatic administrative fees reflect the Agency's total
estimated annual costs of administering its communications use program,
allocated as deemed applicable by the Agency between communications use
authorizations for wireless uses and communications use authorizations
for fiber optic cable, and prorated to split the cost evenly among the
authorizations of each type. This allocation and proration would
provide for programmatic administrative fees for communications use
authorizations that are equitable to the extent possible within the
constraints of the 2018 Farm Bill, which requires the Forest Service to
recover the programmatic administrative costs for its communications
use program. The Agency will include in the rulemaking record
documentation of the estimated costs upon which the $1,400 and $400
annual programmatic administrative fees are based. The two annual
programmatic administrative fees would be updated annually based on the
difference in the U.S. Department of Labor Consumer Price Index for All
Urban Consumers, U.S. City Average (CPI-U), from July of one year to
July of the following year, rounded up or down to the nearest dollar.
The Agency would review the two annual programmatic administrative fees
no later than 5 years after the effective date of the final rule and at
least every 5 years thereafter and would revise the fees as needed to
ensure they continue to reflect the Agency's total estimated annual
costs of administering its communications use program.
In the last decade there has been a significant increase in the
volume, complexity, and types of communications uses in the United
States, including on NFS lands. Additional Agency personnel, improved
efficiencies, and current technology are critical for meeting this
increased demand for communications uses on NFS lands, as well as the
Administration's goal of enhancing access to high-speed broadband on
Federal lands. Per direction in the 2018 Farm Bill, the Agency would
use the annual programmatic administrative fee revenues to cover the
costs of administering its communications use program, including but
not limited to the costs of on-site reviews of communications sites,
preparation of communications site management plans, and program
oversight and management. This includes reducing the backlog of expired
communications use authorizations, streamlining program implementation,
enhancing automated applications, hiring and training personnel for the
communications use program, conducting internal and external outreach
and enhanced training for employees, and obtaining or improving access
to communications sites on NFS lands.
Estimated costs for administering the Agency's communications use
program are $5.4 million per year, equivalent to the total programmatic
administrative fee revenues that would be collected using the proposed
fee structure from existing communications use authorization holders as
of 2019. The revenues would cover the personnel and other resource
costs needed to administer a more modernized, efficient, and enhanced
communications use program, thereby enhancing deployment of wireless
and wired communications services.
[[Page 72542]]
Table 1--Estimated Cost Breakdown
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Wireless
Task (3,715) Fiber (444) Totals Rates Remarks
----------------------------------------------------------------------------------------------------------------
On-site Reviews................. $2,799,215.35 $0.00 $2,799,215.35 $753.49 3,715 (wireless).
Communications Site Management 435,984.69 0.00 435,984.69 117.36 3,715 (wireless).
Plans.
Program Oversight and Management
Salary, benefits, 1,542,616.60 184,366.56 1,726,983.16 415.24 4,159 (wireless &
and overhead costs. fiber optic
cable).
Staff training..... 108,960.95 13,022.52 121,983.47 29.33 4,159 (wireless &
fiber optic
cable).
Access............. 300,000000 0.00 300,000.00 80.75 3,715 (wireless).
------------------------------------------------
Total................... 5,186,777.59 197,389.08 5,384,166.67
--------------------------------
Total Share for Wireless 1,396.17 1,400 rounded
Authorizations ($5,186,777.59/
3715).
--------------------------------
Total Share for Fiber Optic 444.57 400 rounded
Cable Authorizations
($197,389.08/444).
----------------------------------------------------------------------------------------------------------------
To determine the two annual programmatic administrative fees, the
Agency first estimated the total annual programmatic administrative
costs for its communications use program, including the costs of on-
site reviews of authorized communications sites, preparation of
communications site management plans, hiring and training personnel for
the communications use program, land use fee billing and collection,
and obtaining or improving access to communications sites. Those costs
were then allocated between communications use authorizations for
wireless uses and communications use authorizations for fiber optic
cable. The total costs for each authorization type was then prorated to
divide the total equally among all communications use authorizations of
each type: 3,715 wireless authorizations and 444 fiber optic
authorizations. As shown in Table 1 above and explained in further
detail below, fiber optic cable authorizations are not allocated the
costs of on-site reviews of communications sites, preparation of
communications site management plans, or obtaining or improving access
to communications sites because those costs are not incurred in
connection with those authorizations. All other annual programmatic
administrative costs were allocated to communications use
authorizations for wireless uses and fiber optic cable.
On-Site Reviews
Annual costs of on-site reviews of communications sites were
allocated only to communications use authorizations for wireless uses.
This is because wireless use authorizations involve installation,
operation, and maintenance of above-ground communications facilities
such as towers, which require annual on-site reviews. However, fiber
optic cable authorizations typically do not require on-site reviews
because fiber optic cable is buried or co-located on other
infrastructure, such as a utility line.
The total annual estimated cost of on-site reviews of
communications sites on NFS lands is approximately $2,800,000. The
estimate of $2,800,000 is based on the cost to conduct an annual on-
site review of each of the 1,367 communications sites on NFS lands,
including:
Reviewing any pertinent information related to
communications sites and authorized uses;
Notifying and coordinating with communications use
authorization holders regarding on-site reviews;
Traveling to and from communications sites;
Conducting on-site reviews, including gathering data for
development and implementation of the communications site management
plans governing all communications uses at each site and ensuring that
technical and administrative requirements for management of each site
are being met to provide for compatibility of communications uses;
Documenting and approving maintenance activities;
Preparing a report and any follow-up correspondence; and
Entering data into the Special Uses Data System and
conducting any needed follow-up.
On average, this work is conducted by a General Schedule (GS)-11,
step 1, employee at a daily rate of $326. The daily rate was based on
the yearly salary in 2019 for a GS-11, step 1, employee of $62,236,
plus estimated employee benefits (e.g., health insurance and retirement
benefits) of $22,764, or $85,000 per year. The daily rate was
calculated by dividing the yearly salary and benefits of $85,000 by
2,087 hours per year (the divisor used by the Office of Personnel
Management to compute federal employees' cost-to-government hourly
rate) and multiplying the quotient of $40.73 per hour by 8 hours, a
typical workday, which equals $325.84, or $326 rounded to the nearest
dollar. On-site reviews of authorized communications uses take
approximately 2.125 days to complete, or $692.75 for employee salary,
plus $60.74 for vehicle expenses (2 days of vehicle use at $11.87 per
day and an estimated 100 miles driven at $0.37 per mile), for a total
estimated cost of $753.49 annually per authorization. The total annual
estimated cost of $2,800,000 for on-site reviews of communications
sites was determined by multiplying the annual estimated cost of
$753.49 per authorization by 3,715, the total number of communications
use authorizations for wireless uses, rounded.
Communications Site Management Plans
Similar to the cost of on-site reviews, annual costs of
development, approval, and maintenance of communications site
management plans were also allocated only to communications use
authorizations for wireless uses. Wireless use authorizations are
subject to a communications site management plan to facilitate orderly
development of communications sites, ensure authorized uses are
compatible, and provide for a safe and high-quality communications
environment. Fiber optic cable authorizations do not need a
communications site management plan because fiber optic cable is buried
or co-located on other infrastructure and cannot cause interference
concerns.
For development, approval, and maintenance of communications site
management plans, the Agency estimated a total annual programmatic
administrative cost of $436,000. This estimate was based on the cost of
completing or updating 137 communications site management plans per
year, given that there are 1,367 communications sites on NFS lands and
standard Agency practice requires communications site management plans
to be updated every 10 years to keep
[[Page 72543]]
pace with changes in technology and industry protocols. The preparation
work, coordination of the site visit, and approval of the
communications site management plan takes approximately 2 days for a
local employee to complete, at an estimated cost of $652 for employee
salary and benefits (a GS-11, step 1, employee at a daily rate of $326,
see calculations above), travel costs of $2,500 (using standard per
diem rates and typical travel costs) for a national or regional
communications site specialist to visit the site and complete the work,
and $30.37 for vehicle expenses (1 day of vehicle use at $11.87 per day
and an estimated 50 miles driven at $0.37 per mile). The salary costs
for the national or regional communications site specialist that visits
the site were included under the program oversight and management costs
described below, so they are not included in the estimate of total
costs for communications site management plans. The total annual
estimated cost of $436,000 for development, approval, and maintenance
of communications site management plans was determined by multiplying
the annual estimated cost of $3,182.37 per site by 137, the total
number of communications site management plans that would be completed
or updated each year, rounded.
Program Oversight and Management
The Agency estimated a total annual programmatic administrative
cost of approximately $2,149,000 for program oversight and management
of the Agency's communications use program, including a trained and
dedicated staff of 14 employees; overhead for travel, staff training,
office space, supplies, and information technology development and
support; biannual employee training; and the cost of obtaining or
improving access to communications sites on NFS lands. Specifically,
the total estimated annual cost of program oversight and management was
based on the following:
Salary, benefits, and overhead costs: Costs for general
program administration, salary, and overhead costs of approximately
$1,727,000 for the 14 employees needed to manage the program, ranging
from a GS-9 to a GS-14 employee.
Staff training: Costs of approximately $122,000 for 2
yearly employee trainings for communications use management. Each 1-
week training session includes the cost of training materials, the
venue, and incidental costs for 23 employees (20 students, who are
employees who administer the communications use program at the field
level, and 3 instructors).
Access: Costs of approximately $300,000 for obtaining or
improving access to communications sites (fiber optic cable
authorizations are exempt from this cost because they do not require
additional access).
Of the above listed costs, the total estimated allocations for the
3,715 communications use authorizations for wireless uses are as
follows: $2,799,215 for annual on-site reviews of communications sites,
$435,985 for development, approval, and maintenance of communications
site management plans, $1,542,617 for general program administration
(prorated to 3,715 of the total 4,159 authorizations this cost applies
to), $108,961 for training (prorated to 3,715 of the total 4,159
authorizations this cost applies to), and $300,000 for obtaining or
improving access to communications sites. This results in a wireless
use authorization cost total of approximately $5,186,777. Divided by
3,715 authorizations for wireless uses, the annual programmatic
administrative fee for wireless use authorization is set at $1,400
($1,396.17 rounded to the nearest hundred dollars).
For the 444 communications use authorizations for fiber optic
cable, the total estimated annual programmatic administrative costs
include $184,367 for general program administration (prorated to 444 of
the total 4,159 authorizations), and $13,023 for training (prorated to
444 of the total 4,159 authorizations), resulting in a total of
$197,390. The annual programmatic administrative fee for those
authorizations is calculated by dividing $197,390 by 444 authorizations
for fiber optic cable, which equals $444.57, or $400 rounded to the
nearest hundred dollars.
Section 8705(f) of the 2018 Farm Bill authorizes the Agency to
retain and spend the annual programmatic administrative fee revenues
that would be collected under the proposed rule to cover the costs of
administering the Agency's communications use program. The total fees
proposed here would collect $5,186,777 for wireless use authorizations
and $197,390 for fiber optic cable use authorizations, a total of
$5,384,167 to be collected and retained by the Forest Service for
administering the communications use program.
Proposed Revisions to Agency Directives
FSH 2709.11, Chapter 90
The Agency is proposing to revise its directives in FSH 2709.11,
Chapter 90, concurrently with this rulemaking. Consistent with section
8705(c)(3) of the 2018 Farm Bill and the proposed revisions to the
Agency's regulations, the proposed directive would amend Chapter 90 to
implement an annual $1,400 programmatic administrative fee for
communications use authorizations for wireless uses and an annual $400
programmatic administrative for communications use authorizations for
fiber optic cable and provide for updating the two annual programmatic
administrative fees every 5 years. The proposed directive would also
amend Chapter 90 to establish direction on expenditure of annual
programmatic administrative fee revenues.
Upon adoption of a final rule, a separate notice will be published
in the Federal Register announcing the availability of the proposed
directive, including information on how to comment on the directive and
a link to the proposed directive, which will be posted on the Agency's
website.
Regulatory Certifications
Executive Order 12866
For rules designated as significant by the Office of Information
and Regulatory Affairs (OIRA) in the Office of Management and Budget,
Executive Order (E.O.) 12866, as supplemented by E.O. 13563, directs
agencies to conduct a regulatory impact analysis, including an
assessment of costs and benefits of available regulatory alternatives
and regulatory approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and
distributive impacts). E.O. 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. The regulatory impact analysis must assess
both the costs and benefits of the regulation, recognizing quantifiable
analysis is not always possible, but that a reasoned determination be
made that the benefits justify the regulatory costs.
The Agency conducted a regulatory impact analysis for the proposed
amendments to 36 CFR part 251, subpart B, and FSH 2709.11, Chapter 90,
to charge an annual programmatic administrative fee for new and
existing communications use authorizations to cover the costs of
administering a more modernized, efficient, and enhanced Agency
communications use program. The regulatory impact analysis compares the
costs to administer the communications use program under the existing
regulations with the costs to administer the more modernized,
efficient, and enhanced
[[Page 72544]]
communications use program under the proposed rule. Administrative
costs of the program under the existing regulations are covered by
federal budget allocations; under the proposed rule, administrative
costs of the program would be covered by revenues from the annual
programmatic administrative fee for communications use authorizations
(i.e., payment for the annual cost of administering the program would
be transferred from the Federal government to communications use
authorization holders). Benefits, including programmatic modernization,
efficiencies, and enhancements, are addressed qualitatively.
As of 2019, a total of 4,159 (wireless and fiber optic cable)
communications use authorizations were held by 1,448 unique entities,
including 765 businesses, 384 governments or agencies, 266
organizations, and 33 individuals or households. Of the 4,159
communications use authorizations, 3,715 were for wireless
communication uses, and 444 were for fiber optic cable. Based on an
annual programmatic administrative fee of $1,400 per communications use
authorization for wireless uses and $400 per communications use
authorization for fiber optic cable, the Agency would collect a total
of approximately $5.4 million annually from communications use
authorization holders. The revenue generated from the annual
programmatic administrative fee would cover the annual costs of
administering the Agency's communications use program. Based on the
costs of a more modernized, efficient, and enhanced program, annual
programmatic administrative costs under the proposed rule are estimated
to be $1.8 million greater than annual programmatic administrative
costs under the current regulations. Assuming annual incremental costs
of $1.8 million are constant over a period of 15 years, the present
value of these costs is estimated at $18 million using a 7% discount
rate and $22 million using a 3% discount rate. Providing present value
costs using these assumptions is consistent with Office of Management
and Budget Circular A-4 implementing E.O. 12866 when there is
uncertainty about discount periods.
The annual programmatic administrative fee would provide the funds
necessary to support a more modernized, efficient, and enhanced
communications use program. Programmatic administrative fee revenues
would be used to reduce the backlog of expired communications use
authorizations; streamline implementation by fully staffing the
program; enhance automated applications; improve internal and external
outreach, including training for employees; fund the national billing
team; conduct national oversight; and obtain or improve access to
communications sites. The benefits from a more modernized, efficient,
and enhanced communications use program funded by the annual
programmatic administrative fee for communications use authorizations
are expected to exceed the incremental annual programmatic
administrative costs of $1.8 million per year.
The benefits that would be achieved under the proposed rule are
consistent with the objectives E.O. 13821, Streamlining and Expediting
Requests to Locate Broadband Facilities in Rural America (2018), which
encourages Federal agencies to reduce barriers to capital investments,
remove obstacles to broadband services, and more efficiently employ
Federal resources. The benefits from implementation of the proposed
rule would also be consistent with the goals of the 2020 Secretarial
Memorandum to the Chief of the Forest Service, which directs the Agency
to expedite broadband development on NFS lands to increase connectivity
in rural America. The proposed rule is also required by section 8705 of
the 2018 Farm Bill, which directs the Agency to charge an annual
programmatic administrative fee for communications use authorizations
to cover the Agency's costs to administer its communications use
program. Section 8705 of the 2018 Farm Bill, as amended, authorizes the
Agency to retain and spend programmatic administrative fee revenues.
Costs associated with potential loss of other resources or
environmental goods and services foregone by the presence of
communications uses on NFS lands (opportunity costs) are assumed to be
no different and could be lower under the proposed rule compared to
baseline administrative conditions. Requirements to identify and
mitigate environmental impacts from communications uses through
National Environmental Policy Act compliance and Agency land management
planning would remain unchanged under the proposed rule. More
modernized, efficient, and enhanced program administration supported by
the annual programmatic administrative fee charged under the proposed
rule would provide greater opportunities to ensure environmental and
resource protection.
Average annual programmatic administrative fees incurred by
communications use authorization holders are projected to range from
$3,400 to $4,800 per entity, given that a single entity often has more
than one authorization. There is potential for existing or future
customers to alter their decisions about obtaining a communications use
authorization in response to the cost of the annual programmatic
administrative fee or anticipated benefits (e.g., time-valued revenue
gains). However, the effect of these disincentives and incentives on
decision making is likely to be small or hard to measure in comparison
to the magnitude of other operating costs or expenditures, annual
revenues, or other market factors affecting management and investment
decisions. In many cases, a decision to pursue a communications use
authorization is also driven by the comparative operating advantages of
locating communications uses or facilities on NFS lands versus locating
them on non-NFS lands. The proposed rule is therefore not expected to
trigger significant changes in the number of communications use
authorizations or the output of communications services under those
authorizations. Economic or distributional impacts (i.e., changes in
jobs and labor income) of communications use authorizations are
likewise not expected to be significant.
Congressional Review Act
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C.
801 et seq.), OIRA has designated this proposed rule as not a major
rule as defined by 5 U.S.C. 804(2).
National Environmental Policy Act
The proposed rule would establish procedures for charging an annual
programmatic administrative fee for communications use authorizations
to cover the costs of administering the Agency's communications use
program. Agency regulations at 36 CFR 220.6(d)(2) (73 FR 43093) exclude
from documentation in an environmental assessment (EA) or environmental
impact statement (EIS) ``rules, regulations, or policies to establish
Service-wide administrative procedures, program processes, or
instructions.'' The Agency has concluded that the proposed rule falls
within this category of actions and that no extraordinary circumstances
exist which would require preparation of an EA or EIS.
Regulatory Flexibility Act Analysis
Consistent with the Regulatory Flexibility Act (RFA), 5 U.S.C. 602
et seq., as amended by the Small Business Regulatory Flexibility
Enforcement
[[Page 72545]]
Fairness Act of 1996, and E.O. 13272, the Agency conducted a threshold
regulatory flexibility analysis to determine whether the proposed rule
would have a significant economic impact on a substantial number of
small entities. If the threshold regulatory flexibility analysis
supports a determination that the proposed rule would not have a
significant economic impact on a substantial number of small entities,
a regulatory flexibility analysis is not needed.
Pursuant to the threshold regulatory flexibility analysis, the
Agency has determined that the proposed rule would impact 1,448 unique
entities that hold a communications use authorization. Of those 1,448
unique entities, 1,080 qualify as small entities, including 645 small
businesses, 187 small governmental entities, and 248 small
organizations.
The threshold RFA analysis results suggest that the economic impact
from the proposed rule would be less than 1% of annual salaries and
wages for most (180 of 187) small governments that currently hold a
communications use authorization. Of the seven small governments with
an estimated economic impact greater than 1%, only 3 small governments
are projected to experience an economic impact of approximately 9% to
14% of annual salaries and wages, but they account for less than 1% of
the estimated population of small local governmental units (cities and
towns) within the economic impact areas of National Forests.
The threshold RFA analysis results show that the economic impact
from the proposed rule would be less than 0.5% of annual expenses for
74 or 30% of the 248 small organizations known to have communications
use authorizations. The economic impact would range from approximately
1% to 2% of annual expenses for 138 or 56% of small organizations and
approximately 2% to 5% of annual expenses for 33 or 13% of small
organizations. The remaining 3 or 1% of small organizations are
projected to experience an economic impact of approximately 5% to 11%
of annual expenses from the proposed rule. There may be unknown small
organizations that would be subject to the proposed rule, but the
relatively low number of known small organizations projected to
experience an economic impact of approximately 2% to 5% of annual
expenses and the few organizations (estimated at 3) projected to
experience an economic impact of approximately 5% to 11% of annual
expenses suggest that the proposed rule would not have a significant
economic impact on a substantial number of small organizations.
The threshold RFA analysis results suggest that the average annual
programmatic administrative fees under the proposed rule (i.e., its
economic impact) would be 1% or less of annual receipts for 536 (83%)
of the 645 small businesses that have existing communications use
authorizations. The 536 include all small businesses with annual
receipts of $100,000 to $500,000 (except for 7 small businesses in the
Wireless Telecommunications industry), as well as small businesses with
annual receipts greater than $500,000.
Economic impacts are estimated to be 4% to 5% of annual receipts
for the remaining 109 small businesses distributed across 65 industries
and earning annual receipts of less than $100,000 (representing the
smallest receipt category). For most industries, only 1 to 5 small
businesses per industry are projected to experience economic impacts of
4% to 5% of annual receipts. The 1 to 5 small businesses account for 8%
to 17% of small businesses with communications use authorizations
within each industry and less than 0.1% to 8% of the U.S. population of
small businesses with annual receipts of less than $100,000 within each
industry. For two industries, Telecommunications Resellers (NAICS
517911) and Other Telecommunications (NAICS 517919), 20 and 19 small
businesses, respectively, are estimated to experience impacts of 5%,
accounting for 13% and 24%, respectively, of small businesses with
communications use authorizations in these two industries and 4% and 8%
of the U.S. small business population with annual receipts of less than
$100,000 in these two industries.
The programmatic efficiencies from a more modernized, efficient,
and enhanced communications use program funded by the annual
programmatic administrative fee would benefit small entity
communications use authorization holders.
For the foregoing reasons, the proposed rule would not have a
significant economic impact on a substantial number of small entities,
and small entities are expected to benefit indirectly from programmatic
changes made possible by the programmatic administrative fees under the
proposed rule. Therefore, an RFA analysis is not required for the
proposed rule.
Federalism
The Agency has considered the proposed rule under the requirements
of E.O. 13132, Federalism. The Agency has determined that the proposed
rule conforms with the federalism principles set out in this E.O.;
would not impose any compliance costs on the states; and would not have
substantial direct effects on the states, on the relationship between
the Federal government and the states, or on the distribution of power
and responsibilities among the various levels of government. Therefore,
the Agency has concluded that the proposed rule does not have
federalism implications.
Consultation and Coordination With Indian Tribal Governments
The Agency has reviewed this proposed rule in accordance with the
requirements of E.O. 13175, Consultation and Coordination with Indian
Tribal Governments. The Agency has determined that national tribal
consultation is not necessary for the proposed rule. The proposed rule,
which would implement the statutory requirement to charge an annual
programmatic administrative fee for communications use authorizations
to cover the Agency's costs of administering its communications use
program, is programmatic and would not have any direct effects on
tribes. Tribal consultation will occur as appropriate in connection
with specific applications for communications facilities on NFS lands.
Environmental Justice
The Agency has considered the proposed rule under the requirements
of E.O. 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations. The Agency has
determined that the proposed rule is consistent with E.O. 12898.
No Takings Implications
The Agency has analyzed the proposed rule in accordance with the
principles and criteria in E.O. 12630, Governmental Actions and
Interference with Constitutionally Protect Property Rights. The Agency
has determined that the proposed rule would not pose the risk of a
taking of private property.
Energy Effects
The Agency has reviewed the proposed rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that the proposed rule
would not constitute a significant
[[Page 72546]]
energy action as defined in E.O. 13211, and OIRA has not otherwise
designated the proposed rule as a significant energy action.
Civil Justice Reform
The Agency has analyzed the proposed rule in accordance with the
principles and criteria in E.O. 12988, Civil Justice Reform. After
adoption of the proposed rule, (1) all state and local laws and
regulations that conflict with the proposed rule or that impede its
full implementation would be preempted; (2) no retroactive effect would
be given to the proposed rule; and (3) it would not require
administrative proceedings before parties may file suit in court
challenging its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), signed into law on March 22, 1995, the Agency has
assessed the effects of the proposed rule on state, local, and tribal
governments and the private sector. The proposed rule would not compel
the expenditure of $100 million or more by any state, local, or tribal
government or anyone in the private sector. Therefore, a statement
under section 202 of the Act is not required.
Controlling Paperwork Burdens on the Public
The proposed rule does not contain information collection
requirements as defined in 5 CFR part 1320 that are not already
required by law or not already approved for use. Accordingly, the
review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.) and its implementing regulations at 5 CFR part 1320 do
not apply.
List of Subjects in 36 CFR Part 251
Electric power, Mineral resources, National forests, Rights-of-way,
and Water resources.
Therefore, for the reasons set forth in the preamble, the Agency
proposes to amend part 251, subpart B, of title 36 of the Code of
Federal Regulations as follows:
PART 251--LAND USES
Subpart B--Special Uses
0
1. The authority citation for part 251 continues to read:
Authority: 16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551,
580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1772.
0
2. Amend Sec. 251.54 by adding paragraph (g)(5)(iii) to read as
follows:
Sec. 251.54 Proposal and application requirements and procedures.
* * * * *
(g) * * *
(5) * * *
(iii) Annual programmatic administrative fee for communications use
authorizations. An annual programmatic administrative fee shall be
assessed for each new and existing communications use authorization as
of [Effective date of final rule] based on the total annual estimated
costs to the Forest Service of administering its communications use
program, allocated as deemed applicable by the Forest Service between
communications use authorizations for wireless uses and communications
use authorizations for fiber optic cable and prorated as deemed
applicable by the Forest Service among all holders of those
authorizations. The Forest Service shall maintain a schedule in its
directive system (36 CFR 200.4) of the annual programmatic
administrative fee for communications use authorizations for wireless
uses and the annual programmatic administrative fee for communications
use authorizations for fiber optic cable. These two annual programmatic
administrative fees shall be updated annually based on the difference
in the U.S. Department of Labor Consumer Price Index for All Urban
Consumers, U.S. City Average (CPI-U), from July of one year to July of
the following year, rounded up or down to the nearest dollar. The
Forest Service shall also enumerate in its directive system the annual
programmatic administrative costs for which the two fees are charged.
Within 5 years of [Effective date of final rule], and at least every 5
years thereafter, the Forest Service shall review the amount of and
bases for the two annual programmatic administrative fees and shall
revise them as needed to ensure they continue to reflect the Forest
Service's total annual estimated costs of administering its
communications use program.
Dated: December 16, 2021.
Meryl Harrell,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 2021-27681 Filed 12-21-21; 8:45 am]
BILLING CODE 3411-15-P
