Land Uses; Special Uses; Annual Programmatic Administrative Fee for Communications Use Authorizations

CourtForest Service
Citation86 FR 72540
Publication Date22 December 2021
Record Number2021-27681
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.
                -----------------------------------------------------------------------
                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
                ----------------------------------------------------------------------------------------------------------------
                 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
                

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