[Federal Register Volume 60, Number 208 (Friday, October 27, 1995)]
[Notices]
[Pages 55090-55110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26490]




[[Page 55089]]

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Part II





Department of Agriculture





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Forest Service



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Fee Schedule for Communications Uses on National Forest System Lands; 
Notice

  Federal Register / Vol. 60, No. 208 / Friday, October 27, 1995 / 
Notices  

[[Page 55090]]


DEPARTMENT OF AGRICULTURE

Forest Service
RIN 0596-AB51


Fee Schedule for Communications Uses on National Forest System 
Lands

AGENCY: Forest Service, USDA.

ACTION: Notice; adoption of final policy.

-----------------------------------------------------------------------

SUMMARY: The Forest Service is adopting a final policy and a revised 
fee schedule for determining annual rental fees for communications uses 
authorized on National Forest System Lands in the Western States, 
Forest Service Regions 1 through 6. The Forest Service and the 
Department of Interior, Bureau of Land Management, have jointly 
developed identical fee schedules; the agencies have the same 
definitions for use categories and similar administrative procedures. 
(The Bureau of Land Management is issuing its fee schedule and 
procedures in a separate final rule.) These revisions are necessary to 
establish annual agency rental fees that are consistent for the Western 
States; based on sound business management practices; and reflective of 
fair market value, as required by title V of the Federal Land Policy 
and Management Act of 1976, the Independent Offices Appropriations Act 
of 1952, and the Office of Management and Budget Circular A-25.

EFFECTIVE DATE: This policy is effective November 6, 1995 for new use 
authorizations and on January 1, 1996, for existing use authorizations.

FOR FURTHER INFORMATION CONTACT: Questions about this policy should be 
addressed to John Anderson, Lands Staff (2700), Forest Service, USDA, 
P.O. Box 96090, Washington, DC 20090-6090, (202) 205-1256.

SUPPLEMENTARY INFORMATION: 

Background

    Use of National Forest System Lands for transmission of electronic 
signals, commonly called communications uses, is authorized by title V 
of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1761-
1771). Authorizations currently in effect number approximately 6,300. 
This use involves the construction of a building and tower with 
antennae or the placement of one or more antennae atop a building owned 
by another authorization holder. The Forest Service has sought for 
several years to establish fair market value fees for communications 
uses as required by statutory and regulatory authority.
    From 1987 to 1992, through various notices in the Federal Register 
the Forest Service began publishing final and revised fee schedules on 
a regional basis for selected categories of communications uses on 
sites serving rural areas. The notices explained the need for further 
analysis to complete the fee schedules for the remaining use 
categories. In the interim, on-site appraisals would determine 
commercial mobile radio and cellular telephone fees for sites serving 
urban areas (Los Angeles, Albuquerque, and Boise, for example) and for 
television and FM radio broadcast.
    To forestall the effect of significant fee increases on 
authorization holders, especially in rural areas, Congress adopted 
administrative provisions in the Appropriations Acts for Interior and 
Related Agencies for fiscal years 1990 through 1994 preventing the 
Forest Service from raising fees over the amount in effect on January 
1, 1989. In the fiscal year 1992 appropriations, Congress extended the 
prohibition to include those authorizations issued by the Department of 
Interior, Bureau of Land Management (BLM). In addition, the conference 
report for the Appropriations Act directed the Secretaries of 
Agriculture and Interior to establish a broad-based Radio and 
Television Broadcast Use Fee Advisory Committee (Advisory Committee). 
The Advisory Committee's charge was to review the schedules, with 
particular emphasis on their impact on rural communities in the Western 
United States.
    The Forest Service and BLM entered into a joint agency agreement in 
April 1991 to develop parallel procedures and standards for 
establishing fair market rental values for communications uses on lands 
they administer. The objective of the effort was to develop joint 
market-based fee schedules.
    The Advisory Committee submitted its report to the Secretaries on 
December 11, 1992. The report made several recommendations: (1) Use of 
fee schedules instead of individual site appraisals to improve cost 
efficiency and administration, (2) acceptance of industry-recognized 
market ranking systems, (3) a phase-in period for rent increases 
greater than $1,000, (4) collection of 25 percent of the gross sublease 
income received from tenants by facility owners, (5) issuance of a 
``footprint'' lease in which only facility owners would hold 
authorizations, and (6) annual fee increases based on the Consumer 
Price Index (Urban Consumer, U.S. City Average).
    On July 13, 1993, the Forest Service published a Federal Register 
notice (58 FR 37840) requesting public comments on a proposed fee 
schedule for the four categories of commercial uses previously excluded 
from the regional schedules. The uses included television broadcast, FM 
radio broadcast, commercial mobile radio, and cellular telephone uses. 
The adoption of a final revised fee schedule would complete the 
regional schedules in place in Forest Service Regions 1 through 6 in 
the Western United States. Additionally, the agency stated its 
intention that its fee schedule be fully consistent with that of BLM 
and acknowledged that BLM planned to issue a separate Federal Register 
notice proposing the use of fee schedules for all communications uses 
applicable to lands under its jurisdiction.
    The Forest Service and BLM jointly reviewed and considered the 
comments received by the Forest Service on its July 1993 proposed 
policy (58 FR 37840, July 13, 1993), incorporating and adopting the 
comments as appropriate in the development of the BLM proposed rule. On 
July 12, 1994, BLM published a proposed rule in the Federal Register 
(59 FR 35596), requesting comments on amendments to its right-of-way 
regulations. The proposed rule contained procedures for setting fair 
market rent for communications uses on public land and established 
rental schedules and procedures for eleven categories of communications 
service.
    On July 12, 1994, the House of Representatives Committee on Natural 
Resources, Subcommittee on National Parks, Forests and Public Lands, 
and the Committee on Government Operations, Subcommittee on 
Environment, Energy, and Natural Resources held a joint hearing on 
communications site fees. The General Accounting Office released a 
report (GAO-RCED-94-248) at this hearing that concluded that current 
fees for communications sites on Federal lands were usually 
significantly below fair market value. The report acknowledged that the 
Forest Service fees are based on an outdated formula established forty 
years ago and the BLM rental rates are based on out-of-date appraisals. 
The report concluded that appropriations-related legislation impeded 
agency efforts to implement new fees. The report warned that if the 
limits continued, the Federal Government would not obtain fair market 
value for communications sites for many years. Because of the joint 
agency testimony and the General Accounting Office report, the 
committees strongly encouraged the agencies to complete the fee 
schedules as soon as possible.
    The Forest Service and BLM developed the final fee schedules using 

[[Page 55091]]
    information gained from public responses to the proposed Forest Service 
policy (58 FR 37840, July 13, 1993) and the proposed BLM rule (59 FR 
35596, July 12, 1994). The agencies also used the Advisory Committee 
report, the General Accounting Office report, discussions with hundreds 
of industry representatives and private lessors, commercial 
communications site managers, State and local government 
representatives, and appraisers, and nearly 2,000 confirmed private 
lease transactions. The final Forest Service policy is being issued as 
amendments to Forest Service Handbook (FSH) 2709.11, Special Uses 
Handbook, chapter 30, Fee Determinations, and chapter 40, Special Uses 
Administration. The text of the policy is set out at the end of this 
notice.

Analysis and Response to Public Comments

    The Forest Service received 84 comments on the July 13, 1993, 
notice of proposed policy (58 FR 37840). Analyses of public comments 
were accomplished using standard Forest Service procedures designed to 
ensure an objective and systematic analysis. The agency received 
comments from 13 Western States; 28 percent of the responses came from 
California. While the proposed fee schedule applies only to the Western 
States, responses were received from parent companies of authorization 
holders, national organizations, and other interested parties located 
throughout the United States.
    Respondents were grouped under the following categories:

------------------------------------------------------------------------
                  Respondent type                    Number   Percentage
------------------------------------------------------------------------
Commercial Mobile Radio/or Building Owner.........        34         40 
Television Broadcaster............................         9         11 
Organization......................................         8         10 
Other Communications User.........................         8         10 
Cellular Telephone................................         7          8 
Other Federal, State, or County Agencies..........         6          7 
FM Radio Broadcaster..............................         5          6 
General Public....................................         4          5 
Translator or Repeater............................         3          3 
------------------------------------------------------------------------

    All responses consisted of individual letters. No form letters or 
petitions were received.
    The BLM received a total of 61 comments on the proposed rule (59 FR 
35596, July 12, 1994): 35 nonbroadcast users, 6 broadcast users, 6 
industry groups, 4 private citizens, 2 state agencies, 1 county 
association, and 1 Federal agency. In several cases, the same users, 
industry groups, and state agencies had also commented on the Forest 
Service proposed policy (58 FR 37840, July 13, 1993).

General Comments on Communications Site Fees and Agency Response

    Based upon early comments to BLM's 1994 proposed rule (59 FR 35596, 
July 12, 1994) both agencies recognized the need for additional 
information to evaluate the responses appropriately. The BLM held 
several meetings with respondents during the comment period to verify 
information was recommendations submitted by respondents and to clarify 
the intent of the proposed rule. Forest Service representatives 
attended these meetings. Also, additional information and gathered from 
other Federal agencies and industry contacts to determine comparable 
and appropriate groupings for the fee schedule.
    The agency did not incorporate changes in the final policy and fee 
schedule when the comments would (1) require additional detailed 
studies or development of specific criteria and instructions for each 
category of use, (2) lead to subjective, potentially inconsistent 
application of the fee schedule, or (3) require procedures that 
unnecessarily encumber both the holder's business and the agency's 
management practices.

Method for Determining Fees

    Comment. Some respondents expressed general support for the effort 
to develop a fee schedule. One respondent strongly favored the master 
appraisal approach and the development of fee schedules. This 
respondent also called for inclusion of an urban schedule for other use 
categories, such as common carrier microwave relay, industrial 
microwave relay, mobile radio, internal communications, natural 
resource/ environmental monitoring, and passive reflector. One 
respondent from the commercial use sector (cellular telephone) favored 
the schedule and accompanying communications site procedures.
    Thirty respondents disagreed with the method and criteria used to 
develop the schedule. They suggested that the fees should be based on: 
(1) A flat fee using the square footage of the building and the height 
of the tower, (2) bare land values, (3) wider population increments, 
(4) a percentage based on total households and market size, (5) 
appraisals at high-value sites using local market data, (6) the 
Advisory Committee schedule, (7) the next best use concept, and (8) a 
more graduated scale that would charge site users in proportion to 
their market size.
    Others noted that the schedule was incomplete and needed additional 
categories to establish fees for: (1) Buildings operated by facility 
managers whose primary business is space rental, (2) cable and 
subscription television companies serving more than 1,500 households, 
(3) broadcast translators for more than 60,001 people, (4) AM radio 
broadcasters, and (5) urban microwave and common carrier uses.
    Response. To develop a policy and schedule that are easy to 
understand and implement, the agency is adopting a final schedule that 
uses one population ranking method for all uses to calculate fees. The 
agency disagrees with respondents who said that there was no link 
between population and rent charged for a communications site. To the 
contrary, market information shows that land rents overall are 
generally higher on sites serving large metropolitan areas than those 
sites serving less populated areas. Therefore, the agency developed a 
final schedule that more directly correlates to the population of the 
market served and the authorized use of the facility. This type of 
rating system reflects the actual market area served better than 
population figures that do not correlate to market areas.
    To provide consistent procedures and a fee schedule identical to 
that of the BLM, the Forest Service expanded the fee schedule to 
include all categories of communications uses on National Forest System 
lands. The categories are: (1) Television broadcast, (2) AM/FM radio 
broadcast, (3) cable television, (4) broadcast translators, low power 
television and low power FM radio, (5) commercial mobile radio service 
and facility manager, (6) cellular telephone, (7) private mobile radio 
service, (8) microwave, and (9) other communications uses. Two use 
categories, passive reflector and local exchange network, will remain 
as regional schedules. The final Forest Service policy establishes 
identical definitions as the BLM for use categories. The agency is 
making these changes to the policy in Forest Service Handbook (FSH) 
2709.11, Special Uses Handbook, chapter 40, Special Uses 
Administration, section 48, Communications. The final fee policy and 
schedule, including implementation, phase-in, and updating procedures, 
are included in FSH 2709.11, chapter 30, Fee Determinations, section 
36.2, Communications Site Fee Schedule. The text of the policy and fee 
schedule in 

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FSH 2709.11 are set forth at the end of this notice.

Fee Values

    Comment. Four respondents indicated the proposed fees were too low. 
One respondent felt the fees averaged approximately 15-25 percent below 
comparable private market values. In particular this respondent said 
that television and radio were at least 15-20 percent below and mobile 
and cellular were approximately 20-25 percent below private market 
values. Another respondent characterized the use of public lands by 
television and radio broadcast users at less than fair market value as 
a subsidy, giving them an unfair competitive advantage.
    Six respondents commented that the fees were higher than fair 
market value and were artificially inflated. They objected to the 
conclusions in the appraisals used to support the fees. Primary reasons 
they noted were: (1) The Forest Service agreed that the Advisory 
Committee approach of setting a fee schedule is appropriate, but then 
changed the Area of Dominant Influence (ADI) groupings; (2) the impact 
of the proposal on small business is significant; (3) the survey 
erroneously calculated user site fees; and (4) the fees were based on 
the broadcast station operator's ability to pay. One respondent 
suggested additional population strata in the categories.
    Response. The agency has revised the final policy and fee schedule 
in response to public comments received on the Forest Service's 
proposed policy (58 FR 37840, July 13, 1993) and public comments 
received by BLM in response to its proposed rule (59 FR 35596, July 12, 
1994). In addition, the agency has considered market information 
provided by users, industry groups, and private and Government 
appraisers, and other management considerations associated with 
developing a cost-effective method for setting and collecting fair 
market value for communications use of National Forest System land.
    The final policy incorporates many Advisory Committee 
recommendations, such as use of a schedule instead of individual 
appraisals, issuance of one authorization (lease) to facility owners, a 
phase-in provision, and use of an index to update annual fees.
    The agency believes the final schedule reflects a reasonable fee 
based on fair market value for the type of use, location, and rights 
authorized. By adopting identical schedules and similar authorization 
documents and application procedures to those of BLM, the Forest 
Service can give holders consistent and improved services. The schedule 
will replace the outdated, inconsistent approaches to assessing and 
collecting rental fees in different Forest Service regions and between 
the Forest Service BLM.

Additional Criteria for Establishing Fees

    Comment. Several respondents said that additional criteria should 
be considered when applying the fees, such as rate adjustments for 
roadless and powerless sites or similar value-added services provided 
by private landowners/lessors. Respondents said that waivers or 
exemptions for those users who provide public service should be 
considered. Respondents also said that administrative delays and red 
tape make Federal sites less attractive than private sites. Respondents 
were also concerned with the requirement of free use for other Federal 
agencies and provisions considering the number of radio units in a 
facility.
    Some respondents had difficulty understanding the different fee 
schedules (Regional versus National ) and were unsure of how to 
classify a use. They also believed the schedule did not acknowledge the 
significant financial discrepancy between two operators on the same 
site.
    Reponse. The agency recognizes that the July 1993 proposed policy 
(58 FR 38740, July 13, 1993) did not offer a detailed explanation of 
the proposed policy or how the fee schedule was derived. Respondents 
could not clearly determine how their specific uses applied to the 
schedule. In addition, the fee schedule in the Forest Service's 
proposed policy (58 FR 37840, July 13, 1993) applied to only four uses: 
television broadcast, FM radio broadcast, commercial mobile radio, and 
cellular telephone. The methods of determining the fee strata varied 
from the application of Arbitron Company market rankings for television 
and radio broadcast, to the application of population and metropolitan 
statistical figures for commercial mobile radio and cellular telephone 
uses.
    In response to the public comments, the final policy and fee 
schedule include the following changes:
    1. The fee schedule is based on a ranking of Ranally Metro Areas 
(RMAs) as identified in the ``Rand McNally Commercial Atlas and 
Marketing Guide, 1995.'' An RMA represents Rand McNally's definition of 
metropolitan areas in the United States. There are 452 RMAs. Four 
hundred and seventeen have a population of 50,000 or more. Thirty-five 
listed RMAs have a population near 50,000 and are included as RMAs 
because they include a central city of an official Metropolitan 
Statistical Area.
    2. The fee is based on the location of the communications site and 
whether or not it serves an RMA, serves a community(ies) not listed as 
an RMA, or is in a remote, sparsely populated area that does not serve 
any individual community.
    3. If the communications site serves an RMA, the fee is determined 
by the category of use and the population range on the schedule that 
includes the RMA population.
    4. If the communications site serves a community not listed as an 
RMA, the fee is determined by the category of use and the population 
range on the schedule that corresponds with the most recent population 
for the largest community served by the site, as indicated in the 
current ``Rand McNally Road Atlas.''
    5. If the communications site does not serve a community the fee is 
based on the minimum scheduled fee for the type of facility and use.

Comments on Specific Communication Uses and Agency Response

    Comments received on the Forest Service's and BLM's proposed 
schedules (published in 58 FR 37840, July 13, 1993, and 59 FR 35596, 
July 12, 1994, respectively) and responses to those comments are 
incorporated in each of the following categories.
    Television Broadcast Fees. The Forest Service proposed fee schedule 
used the Arbitron Company's Area of Dominant Influence (ADI) market 
rankings to determine the fee strata. Five separate strata were 
proposed, presenting fees from $45,000 for the highest market areas 
(750,000 television households and more) to $3,000 for the market area 
containing 49,999 households and less and non-ADI areas.
    Comment. Seven television broadcasters addressed their comments 
specifically to this category. In all cases, the comments showed 
disagreement with the proposed fees. Respondents expressed their 
concern that television revenues in small rural markets have been 
dropping and categories were not consistent with the actual market 
size. They stated that the proposed fees were not within the range 
charged by private landowners in the Western States. Respondents 
suggested that the fees should be based on the value per household or 
on the actual number of television households reached from a site 
listed in the ``Broadcast Factbook.'' One respondent suggested a lower 
category (below 49,999) for rural broadcasters.

[[Page 55093]]

    The comments indicated a need to reconsider the use of Arbitron ADI 
rankings as a basis for determining fees, to expand the population 
strata to provide smaller intervals, and to establish additional strata 
below 49,999. In addition, in December 1993 (after publication of the 
proposed schedule) the Arbitron Company ceased publication of the ADI 
market rankings.
    In response to the comments received by the Forest Service and the 
discontinuation of the ADI rankings, the BLM based its proposed 
schedule (59 FR 35596, July 12, 1994) for television broadcast on the 
latest U.S. census figures for populations of the principal community 
(city, cities, metropolitan area, county, or counties) served by the 
transmitter. The proposed BLM schedule expanded the fee strata to nine 
divisions that range from populations of 2,000,000 and above to below 
14,999.
    Most comments on the BLM proposal favored the expanded fee strata. 
However, several respondents opposed using the population of the 
principal communities served and asked that it be reconsidered. 
Generally, respondents said the concept was too vague and difficult to 
determine the population served using census information. In addition, 
they said differences in calculating total population of the principal 
communities served would create inequities. Several respondents 
suggested the schedule should be based on market ranking methods used 
by industry, such as the Nielsen Dominant Market Area ranking system.
    Reponse. The agency found there are some advantages to basing the 
schedule on industry-recognized market ranking surveys, since (1) they 
are based on the relative size of markets in which stations compete, 
and broadcasters generally accept them; (2) the surveys are updated 
each year, allowing for rent adjustments that reflect changes in 
private market conditions; and (3) rents could be based on the market 
actually served instead of the location of the transmitter or city of 
license.
    However, there are also disadvantages to using the surveys. The 
market does not measure the households or audience reached by the 
broadcast transmitter located on National Forest System lands alone. 
Instead, the market includes households reached using a combination of 
microwave and broadcast translators that serve other smaller markets. 
This feature inadvertently inflates rental payments for those stations 
that have extensive translator networks serving communities outside the 
area normally served by the transmitter. The surveys do not include 
affiliate stations serving smaller communities within the market areas. 
Affiliate stations included in a market area would be assessed the same 
fee though they serve a smaller population of the market area.
    From the additional information and analysis of alternatives, the 
agency found that basing fees on the population of the principal 
communities served by the broadcast transmitter would be difficult to 
implement. Additionally, the disadvantages associated with use of 
Nielsen market rankings would unnecessarily complicate the fee 
schedule. Therefore, based on available market data, recent appraisals, 
and information received from respondents, the final fee schedule 
establishes nine separate fee strata based on the Rand McNally RMA 
population rankings. Because of the redistribution of strata, the final 
fees range from $45,000 (RMA of 5,000,000 and above) to $1,200 (RMA of 
less than 25,000). This action reduces fees for some television 
broadcast uses as shown in the proposed Forest Service fee schedule.
    FM Radio Broadcast Fees. The proposed Forest Service schedule used 
population data from the Arbitron Company's Metro Survey Area (MSA) to 
determine the fee strata. The proposed schedule displayed five 
divisions in the fee strata from 1,000,000 persons and more to 74,999 
and less and non-MSA areas.
    Comment. Four respondents in the FM radio group and one agency 
commented on the proposed fees. Several of these respondents stated the 
increased fees would have a significant economic impact on many small 
entities and make it impossible for small businesses to say 
economically sound. Specific and recurring comments were: (1) The fees 
were prohibitive for stations with potential audiences of 25,000 or 
less, (2) there should be a lower minimum fee per FM broadcast site, 
(3) greater weight should have been given to the market size served by 
respective radio stations, and (4) the respective value of lands used 
for transmitter location would carry a higher value in the more densely 
populated areas than the small areas. One respondent asked that the 
agency calculate rentals to broadcasters with reference to comparable 
uses and consider the public service rendered by broadcasters, along 
with the enhancement in value of Forest Service properties. One 
respondent asked if a cause and effect study had been completed. 
Another respondent asked that the schedule include AM radio broadcast. 
The responses indicated a need to develop additional population strata 
and expansion of the market ranking system for radio broadcast to 
determine fee strata.
    The BLM proposed the same method as television broadcast (using 
U.S. census population figures for the principal community or 
communities served) and expansion of the fee strata into the same nine 
divisions for FM radio broadcast as proposed for television broadcast.
    Respondents to the BLM proposal objected to the use of the 
population of a community served to determined fee strata. These 
respondents pointed out that radio market rankings are not nationwide 
and there are significant gaps in coverage. Therefore, other methods 
should be developed to establish rent in those areas not covered by the 
market ranking service. Several respondents to the BLM proposal also 
suggested the schedule include AM radio broadcast.
    Response. The Forest Service has recalculated the final nine FM 
radio broadcast strata to match the Rand McNally RMAs. The fees range 
from $34,000 (5,000,000 and above RMA) to $900 (less than 25,000 RMA). 
The agency has modified the schedule to include AM radio broadcast uses 
at 70 percent of the FM schedule. Co-located AM and FM stations pay the 
full FM radio broadcast fee. The final fee schedule reduces the impact 
of urban area rates on the rural radio broadcaster.
    Commercial Mobile Radio Fees. The Forest Service fees proposed for 
this category were based on the number of persons within the area 
served, as determined by the latest U.S. census population estimates. 
The agency proposed five fee strata divisions ranging from 500,000 
persons to 59,999 and fewer persons.
    Comment. This category received more comments than any other. 
Thirty-six respondents commented. Nearly all (31) identified themselves 
as commercial mobile radio users. The overall intensity of the comments 
reflects the most concern, disagreement, and confusion.
    Major issues involved (1) the validity, quantity, and quality of 
the private lease transactions used in the contract appraisal and the 
market studies, (2) the credibility of the market data, and (3) fees in 
rural areas which are higher than the private market. Many respondents 
argued that the appraisals and fee schedule did not represent fair 
market value and were not adequately justified with relevant data. 
Several called for lower population strata and gave examples of what 
the population/fees should be. Others respondents asked for more 
studies in rural areas and commented that higher fees were not in 

[[Page 55094]]
the best interest of the public or local economies. They said that fee 
increases would harm small businesses because they would have to pass 
along the fee increases to their customers.
    A few respondents simply stated their fees should be lower. Others 
said the fees were not what industry had agreed to. One respondent 
stated that recent legislation reclassified certain private carrier 
radio operators and required regulation by the Federal Communications 
Commission. One respondent asked that the respondent's fee be 
considered in a special category, or reduced, because of the 
respondent's public service.
    Many respondents stated that the schedule needed further 
clarification and was confusing in certain areas. Many building tenants 
were uncertain how the agency would apply the fee schedule, believing 
they would be subject to the proposed fees as tenants. Facility owners 
who do not own or operate equipment and lease building and antenna 
space to other commercial radio service providers expressed confusion 
about how or if the fee schedule would apply to them in existing 
situation, such as leases, and multi-user permits.
    The Forest Service recognizes that the lack of clear explanation on 
application of the schedule for this use category led to 
misinterpretation and confusion.
    The BLM proposal included commercial mobile radio service (CMRS) in 
a nonbroadcast rental schedule and proposed several changes. These 
changes include: (1) Expanding the original five population divisions 
to nine to reflect market areas ranging from zero to more than 
2,000,000, (2) basing fees on the population of the largest county 
predominantly served by the transmitter, (3) proposing a separate 
category for facility managers (building owners), and (4) adjusting 
fees in most strata to reflect the findings of additional analysis.
    While respondents to the BLM proposal generally favored the 
expanded fee strata, most respondents objected to using county 
population as a basis for setting fees. Respondents to BLM's proposal 
strongly opposed the fees in each strata, stating they were unfair and 
too high, and would drive many small businesses out of the market. 
Several respondents provided additional information showing the 
proposed schedule fees were above the private market rates.
    Several respondents to the BLM proposal questioned the similarity 
of the CMRS category and facility manager category. They suggested that 
BLM eliminate the facility manager category and incorporate it into the 
CMRS category. Other respondents said that CMRS is dependent on 
microwave communication equipment and pointed out that the difference 
in land rent between the two uses was less than 4 percent. In response 
to BLM's proposal, they asked that microwave communication equipment 
used to support a CMRS operation be charged one fee at the CMRS rate.
    Response. In consideration of public comments to the agency's and 
BLM's proposed fee schedule, available market data, and additional 
industry information focusing primarily on rural areas, the final 
Forest Service policy and fee schedule for the CMRS category include 
the following changes:
    1. The final fee schedule based on the standard RMAs establishes 
nine fee strata. Fees range from $12,000 in the highest RMA to $600 in 
the lowest RMA, reducing final fees in six of the nine strata.
    2. The agency has adjusted the final fees to more closely coincide 
with fees for cellular telephone uses. The market analysis shows 
cellular telephone and CMRS providers often compete for sites in larger 
markets at similar private market rates. Comparable market information 
in less populated areas shows CMRS providers pay less than cellular 
telephone.
    3. The definition for CMRS has been broadened to include facility 
managers and ancillary microwave link equipment.
    Cellular Telephone Fees. The proposed Forest Service schedule 
defined three fee strata for cellular telephone based on populations 
within a Standard Metropolitan Statistical Area (SMSA). Fees within the 
strata ranged from $7,500 to $2,500.
    Comment. Overall, respondents were supportive of the cellular fees. 
However, they suggested several modifications. They suggested that the 
agency abandon the term ``SMSA'' and determine the area a site covers 
based on contour maps filed with the Federal Communications Commission 
(FCC).
    Two respondents to the BLM proposal suggested that they include 
specialized mobile radio, a similar wireless system, in the cellular 
category. They reasoned that Congress in recent legislation (Omnibus 
Budget Reconciliation Act of 1993) directed Federal agencies to 
regulate similar wireless telecommunications services consistently.
    Other respondents were concerned about two emerging technologies: 
personal communication service (PCS) and microcells. PCS is smaller to 
cellular telephone service. The major difference between PCS and 
cellular telephone is that PCS operates at a low power and has smaller 
area coverage. However, the PCS network is more concentrated and 
requires more sites than a cellular service. The respondents warned 
that it would be inappropriate to require PCS users to pay the same 
fees as a cellular telephone users. While PCS service is not yet 
available, a similar service using mocrocells is provided now in rural, 
sparsely populated areas as an addition to wireline and cellular 
telephone service. The respondents suggested a separate fee of $2,500 
per year.
    Response. Because of the comments, other methods to determine the 
fee strata were explored and analyzed. The BLM proposal included 
cellular telephone in a nonbroadcast rental schedule and proposed 
expanding population divisions from three to nine. The BLM proposed 
basing fees on the population of the largest county predominantly 
served by the transmitter. The expanded strata, based on county 
populations, resulted in proposed fees ranging from $10,000 to $2,500.
    Contrary to respondents' comments, additional analysis shows that 
in large metro markets, cellular telephone companies and commercial 
mobile radio service providers often pay similar rents in the private 
market. However, in small- to medium-size markets, commercial mobile 
service providers pay less than cellular telephone users. Therefore, 
the final Forest Service fee schedule reflects the differences in fees 
and maintains separate schedules for cellular telephone and commercial 
mobile radio service.
    After considering the suggestions and gathering additional 
information from industry and the Federal Communications Commission 
(FCC), the Forest Service has deleted PCS from the definition for the 
cellular telephone category. Once site requirements are determined for 
PCS, the agency will consider amending the fee schedules. However, the 
agency has broadened the definition of cellular telephone to include 
other related technologies in the event PCS facilities are similar. It 
is the intent of the agency to apply the fee schedule to similar, 
emerging technologies when practical. Additionally, microcell service 
will not be included in the cellular telephone category at this time.
    In consideration of the public comments and available market data, 
the final policy and fee schedule for the cellular category include the 
following changes:

[[Page 55095]]

    1. The final fee schedule based on the standard RMAs establishes 
nine fee strata. Fees range from $12,000 in the highest RMA to $2,500 
in the lowest RMA.
    2. The agency has adjusted the final fees in the top population 
strata to coincide with fees paid by CMRS users. The market analysis 
shows cellular telephone providers and CMRS providers often compete for 
sites in larger markets at similar private market rates, while 
comparable market information in less populated areas shows CMRS 
providers pay less than cellular telephone providers.
    3. The agency has deleted PCS from the definition for the category 
of cellular telephone.
    4. The definition for cellular telephone has been broadened to 
include other related technologies.

Proposed Fee Indexing

    Comment. Fourteen respondents commented on the proposal to use the 
U.S. Department of Labor, Bureau of Labor Statistics' Consumer Price 
Index for All Urban Consumers (CPI-U) as an annual index to ensure fees 
are kept current with fair market values. Calculating the amount of the 
annual adjustment involves increasing the previous year's fee by the 
change in the annual CPI-U on a July-to-July basis.
    Some respondents acknowledged that a CPI-U clause or other method 
for annual adjustment that properly reflects changes in economic 
conditions is appropriate. These respondents stated that annual 
indexing is typical and recognized in private industry.
    Most respondents providing commercial mobile radio service objected 
to the use of indexing without a cap (or other similar method) to keep 
fees from exceeding fair market value. Two respondents disagreed with 
the use of indexing in any form. Others maintained that the practice is 
not common in the private market, especially for commercial mobile 
radio leases, and said indexing does not fairly or accurately take into 
account the ability of various site owners to negotiate rents at other 
sites that do not automatically include such increases. Respondents 
pointed out that 95 percent of the communications leases of three large 
companies in California either have no cost-of-living clause or have a 
cap.
    One respondent stated that annual indexing tied to a cost-of-living 
index will not ensure that the rent will stay current with fair market 
values. This respondent suggested that the only way to ensure fair 
market rent is for the agency annually to assess the fees to see if 
they are comparable to the rents paid for similar uses on private land.
    In response to the comments and additional analysis, the BLM 
proposal provided for a 5 percent per year limit to the annual index 
change. Many respondents to the BLM proposal generally supported use of 
the CPI-U to index the fees. Several of these respondents, however, 
disagreed with the 5 percent year limitation, suggesting the increases 
should be less than 1 percent, but no more than 3 percent of the 
preceding year. One respondent said the limitation was too generous and 
should be limited to a specific period, and then full CPI-U adjustment 
should be applied to the fees.
    Response. After further study, the agency found that recent 
transactions show increases in annual rent are linked to changes in the 
CPI-U instead of increases in land value. Moreover, the agency agrees 
with respondents that the increases, in time, would be higher than 
normal increases in land rents in the private market.
    The agency believes that one inherent problem with a fee schedule 
is that over the long term it may not adequately reflect fair market 
rent. Individual market rents in specific areas may be more or less 
than rents set by using the schedule. The agency believes limiting the 
CPI-U increases to no more than 5 percent per year will minimize any 
potential inflation of fees. The agency has revised the final fee 
policy to include a 5 percent per year limitation on the CPI-U 
increases. The CPI-U increase, not exceeding 5 percent for the year, 
will be applied to annual fees beginning in 1997.

Use of Leases and Applicable Fees

    The Forest Service proposed policy included the issuance of a 
``footprint lease'' (lease) to facility owners (holders) authorizing 
the subleasing of space in the facility to other communications users 
(tenants). If such a lease provision in implemented, the agency would 
no longer require separate authorizations for tenants in a facility. In 
addition to the annual rental fee indicated in the proposed schedule, a 
percentage of the gross rental receipts paid to the holders by tenants 
in facilities would be assessed for certain use categories. The agency 
would require holders to submit to the agency a certified list of 
tenants, types of uses, and gross rental revenues received from 
tenants.
    Comment. Generally, respondents did not object to the use of a 
lease as a means to authorize all users of a facility under one 
document. However, there was strong opposition to the gross rental 
receipts concept and, in particular, the 25 percent figure.
    Respondents commented that the use of a lease treats similar 
businesses differently, giving an unfair competitive advantage when one 
is a holder versus a user as a tenant. Respondents said building owners 
would raise tenant's rents 30 to 40 percent to compensate for fee 
increases to the agency. They also said that the opportunity for 
holders to abuse the fee system could result in reduced revenues to the 
agency. One respondent was concerned that implementation of the lease 
could have adverse consequences for public radio broadcasters because 
building owners may not be aware that public broadcasters are entitled 
to an exemption from Forest Service fees. The respondent asked that the 
agency clarify the exemption and waiver policy. One respondent asked 
the agency to establish a minimum level for facilities or number of 
transmitters before imposing the highest rental rate. The respondent 
also suggested that the lease should include the total number of 
facilities an operator has at a site, even if it is more than one 
building. Another respondent suggested that a contract be developed on 
a case-by-case basis to compensate user groups that are the primary 
source of administration and technical support and suggested that the 
group receive compensation or reduced fees.
    Twenty-one respondents disagreed with the proposal to use a 
percentage of gross rental receipts as a part of the holders rental 
fee. Specific and recurring reasons objecting to the concept included: 
(1) Collection of a percentage of gross receipts, or revenue sharing in 
addition to the annual rental fee, is inconsistent with private leases 
and does not represent fair market value; (2) administering a system 
that utilizes a percentage of rent as part of the fee system is 
cumbersome and inefficient, and creates unnecessary and unproductive 
expense for both the Government and users; and (3) the proposal would 
involve unnecessary Government intrusion into the holder's business 
affairs.
    In contrast, one respondent stated the percentage of revenue 
sharing was too low, saying that 30-35 percent was probably more 
appropriate.
    Several respondents commented favorably on the proposed lease 
concept. Specifically, these respondents stated it would encourage use 
of existing facilities; minimize the clutter of separate facilities; 
reduce the financial burden on tenants; and improve the agency's 
management 

[[Page 55096]]
practices while ensuring high-quality site standards.
    Many respondents asked for additional explanation of how and when 
the agency would issue leases and what use categories would pay the 
percentage of gross rental receipts. Some respondents understood it to 
apply specifically to broadcasters. Others understood it applied only 
in the largest markets, while some understood it applied to all 
markets.
    The agency recognizes that the lease and percentage of gross rental 
receipts concept did not include enough specific information to allow 
respondents to clearly determine the intent of the proposed policy and 
implementing procedures.
    In response to this issue, BLM incorporated some of the 
respondents' suggestions in its proposed rule. For example, additional 
information was added explaining how the lease would affect all users 
in a facility and that the percentage of gross rental receipts applies 
to all categories of use in all population strata. The BLM proposed 
rule would also reduce the percentage to 15 percent for five years and 
then would raise the percentage to 25 percent thereafter.
    Most of the respondents commenting on the BLM proposal were CMRS 
users, who indicated a strong opposition to the proposed percentage of 
gross rental receipts. Respondents stated that it was unfair, not 
supported by market data, and exorbitant in view of the proposed base 
rents, and that it would be difficult and costly to implement. Most 
respondents pointed out that, with few exceptions, a landowner in the 
private market does not receive an additional amount for tenants in 
facilities. Several respondents submitted private market lease 
information to substantiate their views. Several likened the proposal 
to a tax and were dismayed at the prospect of the Government being a 
partner in their business.
    Two respondents to the BLM proposal agreed with the concept and 
suggested that the percentage should not be reduced for the first five 
years, but applied immediately.
    Another respondent to the BLM proposal observed that setting the 
rental payment on the authorized use, without adjusting for other users 
in the facility, would encourage lower rent users to obtain an 
authorization and then to rent to higher rent users, reducing the rent 
paid by the holder. The respondent suggested the rental payment should 
be based on the actual users in the facility.
    Response. The Forest Service reviewed additional market information 
and found that it is not a widespread practice for landowners to charge 
a percentage of gross rent from tenants. This is especially true in 
rural areas. While there is some evidence that it does occur in newer 
leases for multiple use sites serving large population areas, it is not 
yet a common practice in the private market in all areas. The final fee 
schedule does not include a percentage of gross rental receipts.
    However, the agency believes that multiple user facilities are more 
valuable than single user facilities, and the additional rights and 
privileges granted to tenants should be considered in the determination 
of fees for the use of public land. To ignore the increased demand for 
communications use would not reflect fair market value.
    The agency considered and evaluated alternatives for assessing fees 
for tenant occupancy as suggested by respondents. Based on the comments 
and additional analysis, the agency concluded the fee should be based 
on the actual uses in the facility and reflect the revenue building 
owners collect from tenants.
    Therefore, in response to the public comments, analysis of the 
alternatives, and additional information gathered in preparing this 
final notice, the Forest Service final fee policy includes the 
following changes:
    1. One authorization granting the right to construct, operate, and 
sublease to tenants will be issued to the owner of each facility. The 
Forest Service and BLM will adopt a common format for communications 
use authorizations. The new authorization will authorize tenant 
occupancy, if desired by the holder, without prior written consent of 
the Forest Service or BLM.
    a. In a facility with tenants, the holder's base fee is determined 
by the use that generates the highest fee on the schedule (highest 
valued use) of any of the uses in the facility, excluding those uses 
that would qualify for a fee exemption and/or waiver. If the schedule 
fee for another use in the facility is higher than the holder's, the 
holder's use is subordinated for purposes of calculating total fees for 
the facility. By October 15 each year, the holder will be required to 
provide the authorized officer with a certified statement listing the 
name and type of use for each tenant in the holder's facility on 
September 30 of that year.
    b. Uses defined as ``customer'' (including private (other) and 
internal (PMRS) categories), renting space in a communication facility, 
and uses that would qualify for a fee exemption and/or waiver are not 
used to calculate total fees for the facility.
    c. An additional fee for tenant occupancy applies to all other use 
categories in every population strata not identified in the preceding 
paragraph b. The additional fee is calculated on 25 percent of the 
scheduled fee.
    d. The total fee for the facility is the base fee, plus the 
additional fee (the additional fee is based on 25 percent of the 
schedule fee for the holder's use and other tenant uses in the 
facility). (These requirements are in FSH 2709.11, sec. 36.21, included 
at the end of this notice.)
    2. The fee for a facility with no tenants is the schedule fee for 
the holder's category of use.
    3. A tenant in a facility may hold a separate authorization, 
without subtenancy rights, at the full schedule fee based on the 
tenant's category of use. A tenant is defined in the policy (sec. 48.1, 
para. 5) as a communications user who rents space in a communications 
facility and operates communication equipment for the purpose of re-
selling communications services to others for profit.

Proposed Phase-In of Fee Schedule

    The agency proposed to phase in fee increases to minimize the 
possible significant economic burden on users. As stated in the 
proposal, fee increases of $1,000 or more would be phased in over a 5-
year period at $1,000 per year or 20 percent of the total increase per 
year, whichever is greater.
    Comment. Two respondents expressed support for a phase-in 
provision. One suggested including the 25 percent of gross rental 
receipts received from tenants in the phase-in.
    Several respondents objected to the 5-year phase-in provision. 
Specifically, these respondents stated that the magnitude of the fee 
increases was so great that the 5-year period was not long enough. They 
suggested that the agency extend the phase-in period to at least 10 
years to allow current users the option of relocating their equipment 
or renegotiating tenant leases. One respondent suggested using a third 
party arbitrator to determine if the new fair market rents cause 
economic hardship to existing permittees. Another respondent proposed a 
3-year phase-in period, but limiting increases to no more than 5 
percent for certain FM radio broadcast categories.
    Several respondents to the BLM proposal agreed that a phase-in 
provision for base fees was reasonable. In contrast, one respondent 
felt the provision was too generous, favored existing users over new 
users, and continued the subsidy of communications site fees.
    Other respondents asked for additional relief from the percentage 
of 

[[Page 55097]]
gross rental receipts, and several commented that the process was 
confusing and too complex.
    Based on the respondents' comments and suggestions to the BLM 
proposed rule, BLM proposed the following revisions to simplify the 
process: (1) Increases in the base fee in excess of $1,000 or 20 
percent of the current fee, whichever is greater; would be phased in; 
(2) increases after the first year would be based on an equal annual 
installment, plus the inflation-adjusted increase (CPI-U), rather than 
limiting the phase-in to $1,000 per year or 20 percent of the total 
increase per year, whichever is greater, (3) the additional fee for the 
percentage of gross rental receipts would also qualify for a phase-in 
to reduce the potential impact of large increases in rent.
    Response. The Forest Service recognizes that its proposed phase-in 
provision was unnecessarily complex so that respondents could not 
easily determine how it would be applied.
    After considering the comments, the agency believes the phase-in of 
initial fee increases is a necessary and reasonable component of the 
final fee policy. While phase-ins will result in reduced receipts to 
the Treasury in the first year of implementation, the provision will 
substantially reduce the initial economic impact of fee increases on 
holders. The phase-in will provide time for facility owners and tenants 
to decide if they want to consolidate uses and adjust financial 
business plans.
    Therefore, the final fee policy retains the 5-year phase-in period 
for fee increases. However, in response to comments to simplify the 
phase-in procedure, the agency has included the following revisions in 
the final policy:
    1. Any fee increases of more than $1,000 will be phased in over a 
5-year period, eliminating the 20 percent or more calculation. Stated 
another way, during the first year of implementation, fees will not 
increase more than $1,000 over the current year fees.
    As an example:

A current fee is $700
A new fee based on the schedule is $2,700
Total fee increase = $2,000 (greater than the $1,000 minimum)
First year's fee = $1,700 ($700+$1,000)

    The remaining increase, $1,000, would be added in equal annual 
installments ($250) for years two through five, plus the CPI-U 
adjustment.
    Assuming a 2 percent increase in the CPI-U during the phase-in 
period, the fee (rounded to the nearest dollar) would be calculated as 
follows:

Year 1 (1996)-- $700+$1,000=$1,700
Year 2 (1997)--$1,700+$250 x 1.02=$1,989
Year 3 (1998)--$1,989+$250 x 1.02=$2,284
Year 4 (1999)--$2,284+$250 x 1.02=$2,584
Year 5 (2000)--$2,584+$250 x 1.02=$2,891
Year 6 (2001)--$2,891 x 1.02=$2,949

Reevaluation of Fee Schedule

    The Forest Service proposed policy contained a ten-year, or less, 
period for reevaluation of the fee schedule to ensure fees remain at 
fair market value.
    Comment. One respondent objected, stating that the reevaluation 
could occur in 1 or 2 years, and the fees were already too high. In 
contrast, another respondent felt the agency should insist on 
reevaluation of fair market fees every 5 years, since the technology 
and demand for facility space is increasing. In addition, this 
respondent said that private landowners use short-term leases so that 
they do not have to reevaluate the rents.
    The BLM proposed rule did not specify a period for reevaluation of 
the fee schedule. Instead BLM proposed to revise the schedule 
periodically, if necessary, to ensure the fees are fair. One respondent 
to the BLM proposal asked what was meant by ``periodically'' and 
another suggested that the fee schedule should be reevaluated every 5 
years. The respondent noted that private market use fees have surged 
over the last several years and that unless there is a mechanism to 
update market information, the schedule would fall below fair market 
value.
    Response. The Forest Service prefers a more flexible option, 
similar to private business practices, to keep the fees comparable with 
changing technology and fluctuations in the private market rental 
rates. The agency will continually monitor the private market to ensure 
the schedule fees remain current with market conditions.
    Therefore, the final policy provides for review and updating of the 
schedule no later than 10 years from the date of implementation, and at 
least every 10 years thereafter, to ensure the fees reflect fair market 
value.

Clarification of Other Provisions of Proposed Policy

    Use of Appraisals To Set Fair Market Fees. The Forest Service 
proposed policy allowed exceptions to the fee schedule in certain 
situations. For example, a bid procedure was suggested where a 
communications use is the focus of competitive interest, or an 
appraisal might be appropriate for uses on sites with truly unique 
characteristics. All of the regional schedules provide that the 
authorized officer may use site-specific appraisals or other sound 
business management principles, when it is determined that the fee 
schedule does not reflect fair market value, and the schedules 
specifically do not apply to fees previously established through 
competitive bid or appraisal.
    Comment. Respondents to the Forest Service proposed policy did not 
comment on this provision of the policy. The BLM included similar 
language in its proposed rule to reserve the right to use individual 
appraisals or other valuation procedures to calculate fees. Several 
respondents to the BLM proposal commented that the authorized officer 
could determine fees based on appraisals instead of using the fee 
schedule. They were concerned the fee schedule would not be uniformly 
used to determine fees. One respondent asked for specific criteria or 
guidance on when the agency would use appraisals. Another respondent 
suggested that it would be appropriate to establish standards 
identifying when the fee schedule would not yield fair market value.
    Response. The final Forest Service fee policy (FSH 2709.11, sec. 
36.21a) clarifies that the authorized officer may deviate from the 
schedule and use other methods, including appraisals, to determine fair 
market value fees for communications uses when one of the following 
criteria applies:
    1. The fee or use is not covered by the fee schedule.
    2. The fee has been or will be established through competitive bid 
or appraisal and will be updated in accordance with the terms and 
conditions of the authorization.
    3. The Regional Forester concurs with the authorized officer's 
determination that the communications site serves a population of 1 
million or more and the expected fee for the communications use is more 
than $10,000 above the established fee schedule.
    4. The expected fee exceeds the schedule rate fee by 5 times or 
more.
    General Provisions for Fee Exemptions and Waivers. The Forest 
Service fee exemption and waiver policy, addressing all land uses, is 
set forth in FSH 2709.11, chapter 30 and Forest Service Manual (FSM) 
chapter 2715. The authority to set criteria for and grant exemptions 
from fees is either reserved to Federal agencies or set by law. The 
authorized officer determines fee waivers on a case-by-case basis and 
may grant a fee waiver when equitable and in the public interest.

[[Page 55098]]

Fee Waiver
    Comment. Several respondents to the Forest Service proposed policy 
suggested broadening the current fee waiver policy. Specific and 
recurring comments from respondents asked that the agency: (1) Grant 
exemptions, rather than waivers, to nonprofit organizations and public 
service organizations; (2) recognize that ``public'' and 
``noncommercial, educational television'' are one and the same; and (3) 
change the classification of noncommercial, educational television and 
radio broadcasters to the exempt category, rather than the waiver 
category.
    Response. The agency is not persuaded by respondents' statements 
that ``public'' and ``noncommercial, educational television'' are one 
and the same. While the current policy does not provide fee exemptions, 
as requested by respondents, it does provide a full waiver of fees, 
with specific qualifying criteria. The outcome is the same whether the 
fee is exempt or fully waived. The agency believes the policy should 
not include additional exemptions, criteria, or changes to terminology.
Fee Waiver for All Television and Radio Broadcasters
    Comment. Some respondents to the Forest Service proposed policy 
asked that the agency reconsider its waiver policy and adopt the 
Advisory Committee proposal of a 30 percent discount for all radio and 
television broadcasters in recognition of the public service they 
provide. One respondent asked for an explanation of the waiver policy 
when an easement is issued.
    Response. The Forest Service recognizes the need to clarify the 
current fee waiver policy as it applies to commercial and noncommercial 
television and radio broadcasters. However, the agency disagrees with 
respondents' statements that television and radio broadcast stations 
should receive a 30 percent discount on use fees, since they provide 
important news and emergency programming without direct cost to the 
public. The General Accounting Office report (GAO-RCED-94-248) agrees 
with the position of the Department of Agriculture's General Counsel 
that reducing fees for broadcasters is not appropriate unless there is 
some direct and tangible benefit to the public lands. The report (GAO 
RCED-94-248) states further that providing public service discounts to 
all broadcasters simply because they do not directly charge the public 
is not appropriate. The agency agrees with the report that a public 
service discount should not be provided to all commercial radio and 
television broadcasters, and the respondents' suggestion has not been 
adopted in the final policy.
    Fee waivers and exemptions are dependent on the nature of the use 
authorized, and the business and intent of the authorization holder. 
The terms and conditions of easements and leases provide for 
assignability (transfer) of the rights and privileges authorized. 
Situations could arise in which easement or lease holders who qualify 
for exempted or waived fees could transfer their fee exempted or waived 
status to unqualified authorization holders. Therefore, if the use fees 
are waived, an easement or lease will not be granted.
    The final fee waiver policy in FSH 2709.11, section 31.2 (available 
on request from the FOR FURTHER INFORMATION CONTACT listed earlier in 
this notice) includes the following changes:
    1. Adds a requirement that noncommercial educational radio and 
television broadcast stations have nonprofit status as defined in 
section 501(c)(3) of the Internal Revenue Code.
    2. Requires an annual verification of nonprofit designation from 
the Internal Revenue Service (IRS).
    3. Moves States and local governments to the full waiver category 
without qualifying criteria.
    4. Adds direction that the authorized officer shall not waive fees 
when the holder (except a Federal agency) derives revenue from tenants 
in the facility. Existing Forest Service policy exempts Federal 
agencies from only the land rental fee. When Federal agencies are 
tenants in a communications facility, they are expected to pay a fee to 
the holder for any use of the facilities.
Adjustment of Fees for Free Federal Government Use of Facilities
    Comment. While not discussed in the Forest Service proposed policy, 
two respondents commented that the fee schedule and policy should 
recognize the requirement placed on some holders to provide for the 
free use of the facilities by Federal Government agencies. The 
respondents asked that if the practice is allowed to continue, an 
adjustment for free Federal Government use should be considered when 
determining the holder's annual fees.
    Response. The agency acknowledges this practice has occurred in 
isolated cases. However, there is no formal or informal policy 
permitting such practices. Therefore, the final fee policy includes 
direction that such requirements in existing authorizations shall be 
considered in setting fair market rental fees by allowing a temporary 
fee adjustment. The final policy in FSH 2709.11, section 36.25 provides 
that when a holder has been required to set aside a percentage of the 
square footage of building space as free use to other Federal 
Government agencies, the total annual fee will be reduced by the same 
percentage. The fee adjustment will be valid during the time the holder 
is committed to the tenant enjoying free use. The agency has also 
included direction in FSH 2709.11, section 48.1, paragraph 3, 
prohibiting authorized officers from issuing authorizations that 
require holders to provide free rental space to Federal Governmental 
entities.
Administrative Complexity
    Comment. Several respondents to the Forest Service proposed policy 
said that they needed additional explanation to properly interpret and 
apply the proposed policy and fee schedule. Major problem areas 
identified by respondents included determining use categories, 
identifying internal versus commercial use, applying a complex phase-in 
procedure, and maintaining consistent administrative and application 
procedures. Several respondents complained that it takes too long to 
process applications for a communication site use and called for a 
reduction in the amount of ``red-tape.''
    Response. The revised policy and fee schedule provide for 
streamlining implementation of the fee schedule; improve application 
and administrative procedures and make them consistent in the different 
Regions; and provide important incentives to maximize the use of 
communications facilities. In addition, the changes encourage continued 
growth of communications markets and services, especially in rural 
areas; improve customer service and business practices; set rental fees 
that are predictable and can be easily updated; encourage improved 
communications site management; substantially reduce the agency's and 
holder's administrative burden; and implement procedures more 
consistent with private market practices.
    Once implemented, the improved business practices will work better, 
cost less, and produce measurable benefits enhancing the working 
relationship between the Forest Service and the communications site 
users.
    The agency has made the following major changes in the final policy 
in FSH 2709.11, chapters 30 and 40, to streamline implementation of the 
fee 

[[Page 55099]]
schedule and provide consistent administration:
    1. Defines use categories more broadly to include other related 
uses associated with the maintenance and monitoring of the use. As an 
example, internal mobile radio is often associated with other uses and, 
therefore, is included in the definition of each category of use (FSH 
2709.11, sec. 48.11 and 48.12).
    2. Redefines commercial mobile radio service to include internal 
and private communication uses not sold for a profit, that is, private 
mobile radio, internal microwave, and so forth. Holders operating 
commercial mobile radio service companies operate and maintain a wide 
range of mobile, wireless communication services for customers (FSH 
2709.11, sec. 48.12a).
    3. Revises definitions to provide that occupants owning and 
operating communication equipment in a commercial mobile radio service 
facility for internal use only, and not re-selling their service for a 
profit, are considered customers, not tenants. The base fee assessed 
does not include any adjustment for customers (FSH 2709.11, sec. 
36.21).
    4. Allows facility owners and tenants to decide if they want to 
consolidate their authorizations (FSH 2709.11, sec. 48.1, para. 7).
    5. Eliminates the requirement that the holder obtain prior written 
consent of the authorized officer before allowing other parties to use 
the facility (FSH 2709.11, sec. 48.1, para. 7).
    6. Phases in fee increases if the new scheduled fee exceeds the 
1995 fee by $1,000 (FSH 2709.11, sec. 36.22).
    7. Reduces the information burden placed on holders (FSH 2709.11, 
sec. 48.1, para. 7).
    8. Encourages new applicants to co-locate in existing facilities, 
thus reducing surface disturbances and the proliferation of structures 
(FSH 2709.11, sec. 48.1, para. 1). Use Categories Not Included in 
Forest Service 1993 Proposed Policy. The Regional schedules recognize a 
total of 14 uses, generally corresponding to types of communications 
licenses issued by the FCC. Each Regional schedule, revised in 1992, 
uses separate market analyses to establish fees for specific use 
categories within a given Regional area and/or zone. The schedules 
appear as Regional supplements to chapter 30 FSH 2709.11, Special Uses 
Handbook. The following use categories included in the Regional 
supplements were not included in the Forest Service's proposed fee 
schedule: (1) Broadcast translator, (2) cable and subscription 
television, (3) common carrier microwave relay, (4) industrial 
microwave relay, (5) mobile radio: internal communications, (6) natural 
resource/environmental monitoring, (7) passive reflector, (8) amateur 
radio, (9) personal/private receive only, and (10) local exchange 
network. One use, low power television, was omitted from the Regional 
schedules.
    Based on the comments received on the Forest Service proposed 
policy, additional research on private market practices, and comments 
received on the BLM proposed rule, the Forest Service is adopting a 
national fee schedule for all communications uses (except two 
categories of use) that is consistent with that of the BLM schedule. 
The agency is making the following changes to the use categories which 
appear in FSH 2709.11, section 48, and were described in the Regional 
schedules:
    1. Adds low power television and radio uses to the broadcast 
translator category; remains the category as broadcast translator and 
low power television and low power FM radio (sec. 48.11d).
    2. Renames the cable and subscription TV category as cable 
television (sec. 48.11c).
    3. Renames the mobile radio: internal category as private mobile 
radio service (sec. 48.12c).
    4. Combines the private microwave and common carrier microwave 
categories; renames the category as microwave (sec. 48.12d).
    5. Combines the amateur radio, natural resource and environmental 
monitoring, and personal/private receive only categories; establishes 
fees and renames the category as other communications uses (sec. 
48.13).
    6. Changes the definitions for most categories (sec. 48.1, para. 
5).
    Following is a summary of the changes to each category. The changes 
reflect the information provided from respondents and additional joint 
analysis with BLM of the use categories and fee schedules in the six 
Regions.
    Cable Television. (FSH 2709.11, sec. 48.11c). The current Regional 
schedules base the fees on the number of households served by a cable 
television franchise. Depending upon the Region, fees vary from $75 for 
less than 200 subscribers to $3,000 for more than 2,500 subscribers, 
with fees for uses serving more than 2,500 subscribers to be determined 
by appraisal or other means. A review of current market information 
revealed there is still limited comparable lease data for cable 
television use in larger markets.
    Therefore, the final policy (sec. 48.11c) and fee schedule (sec. 
36.21, ex. 01) make the following changes to the cable television 
category (formerly in the Regional schedules for cable television):
    1. Fees are based on the standard RMA population ranges, 
establishing fees for four population ranges (less than 25,000 to 
299,999). The final fees vary from $600 to $2,400.
    2. Fees for uses in population ranges not covered by the schedule 
(300,000 and above) continue to be determined on a Regional basis by 
other reasonable methods, including appraisals.
    3. If a nonscheduled fee is indicated, the current fee remains in 
effect until the new fee is determined.
    4. Until a new fee is determined, a cable television use is not to 
be used to determine the highest value use for purposes of calculating 
building owner fees; but the building owner fee is based on the second 
highest value use in the facility covered by the schedule.
    Broadcast Translator, Low Power Television, and Low Power FM Radio. 
(FSH 2709.11, sec. 48.11d). Based on the number of persons within the 
area served, the regional fee schedules vary from $75 for less than 
15,000 persons to $1,000 for 60,000 persons, with populations over 
60,000 to be determined by appraisal or other means. The National 
Translator Association supported these fees when published by the 
Forest Service Regions in 1992.
    Comment. Several respondents to the Fores Service proposed fee 
schedule asked that the agency establish a separate category for low 
power television (LPTV). Low power television stations are essentially 
broadcast translators that originate programming. The devices cannot 
interfere with full-power stations and are limited to 10 watts VHF and 
1000 watts UHF. Since the devices usually serve remote areas or 
specific unique markets, there is little information to suggest that 
there is a difference in land rent from broadcast translators.
    Response. After considering the comments and reviewing the use 
categories, the agency found it would be appropriate to include LPTV 
and low power FM radio (LPFM) uses in the broadcast translator 
category. In addition, the agency found there is insufficient 
comparable lease data to establish fees for broadcast translator and 
LPTV use in the larger urban markets. Therefore, the final policy (sec. 
48.11d) and fee schedule (sec. 36.21, ex. 01) make the following 
changes to the broadcast translator category (formerly in the Regional 
schedules for broadcast translator):
    1. Fees are based on the standard RMA population ranges, 
establishing fees for four population ranges (less 

[[Page 55100]]
than 25,000 to 299,999). The final fees vary from $100 to $2,400.
    2. Fees for uses in population ranges not covered by the schedule 
(300,000 and above) continue to be determined on a Regional basis by 
other reasonable methods, including appraisals.
    3. If a nonscheduled fee is indicated, the current fee remains in 
effect until the new fee is determined.
    4. Until a new fee can be determined, a broadcast translator/LPTV/
LPFM use is not to be used to determine the highest value use for 
purposes of calculating a building owner fee. In this situation, the 
building owner fee is based on the second highest value use in the 
facility covered by the schedule.
    Private Mobile Radio Service. (FSH 2709.11, sec. 48.12c). The 
Regional schedules adopted an annual fee for private mobile radio use, 
rather than using population or areas served as a basis for fee 
determination. Fees for uses identified as mobile radio: internal in 
the Regional schedules, vary from $350 to $1,700.
    Comment. A respondent to the BLM proposed rule pointed out that in 
some situations internal mobile radio and microwave systems must be 
used together. Commonly called ancillary uses, the systems give support 
or connect one another on the same communications facility. To 
eliminate confusion, the respondent suggested that when microwave and 
mobile radio uses are present in the same facility as ancillary uses, 
the fee should be based on the private mobile use if the microwave ends 
at the facility and is used for the control of the mobile facility.
    Response. The agency agrees with the respondent. If the microwave 
and mobile radio uses are ancillary to each other, the holder should 
not pay two separate fees. To correct the problem, the definition has 
been broadened to include other equipment for the control of a 
facility. A separate fee is not to be charged for ancillary uses.
    If microwave and private mobile radio uses are present in the same 
facility, but are independent of each other, they are considered as 
separate uses for purposes of fee calculation.
    The final policy (sec. 48.12c) and fee schedule (sec. 36.21, ex. 
01) make the following changes to the private mobile radio service 
category (formerly in the Regional schedules as mobile radio: 
internal):
    1. Fees are based on the standard RMA population ranges, 
establishing fees for nine population ranges. The final fees vary from 
$350 to $10,000.
    2. The definition has been broadened to include other 
communications equipment necessary for the control of a facility.
    3. A separate fee is not assessed for ancillary microwave use.
    Microwave. (FSH 2709.11, sec. 48.12d). Two separate categories, 
common carrier microwave and industrial microwave, were established in 
the Regional schedules. Based on the geographical location and the 
number of persons served, the fees vary from $1,000 in the rural areas 
to as much as $5,500 in urban areas.
    Comment. Several respondents to the BLM proposed rule observed that 
there is little difference in the rent paid for private (industrial) or 
common carrier microwave facilities in the private market.
    Response. The agency agrees with the respondents and has combined 
the two categories into one category for microwave.
    The final policy is FSH 2709.11 (sec. 48.12d) and fee schedule 
(sec. 36.21, ex. 01) make the following changes to the microwave 
categories (formerly in the Regional schedules for common carrier and 
industrial microwave):
    1. One category, microwave, combines the previous categories for 
common carrier microwave and industrial microwave uses.
    2. Fees are based on the standard RMA population ranges, 
establishing fees for nine population ranges. The final fees vary from 
$1,500 to $10,000.
    3. The definition has been broadened to include other 
communications equipment necessary for the control of a facility.
    4. A separate fee is not assessed for ancillary private mobile 
radio use.
    5. Fees for a microwave use with an ancillary private mobile radio 
use are based on the scheduled rate for microwave.
    Other Categories. The Regional schedules adopted a $75 fee for 
separate categories of amateur radio, personal/private receivers, and 
environmental monitoring equipment uses for all geographic locations. 
The final policy (FSH 2709.11, sec. 48.13) combines these uses into one 
category, other uses, and the final fee schedule (sec. 36.21, ex. 01) 
maintains the $75 fee.
    Two other categories, passive reflector and local exchange network, 
are in the Regional schedules but are not in the final agency policy or 
fee schedule. Passive reflector use fees vary from $475 to $1,000, 
depending upon the location and populations served. The system is used 
primarily in remote areas. Fees for local exchange network uses, a 
radio service providing basic exchange telephone radio service (BETRS) 
to remote areas, were established in the 1992 schedules using 
information gathered from a national fee analysis and rates for common 
carrier microwave. Fees vary from $75 to $4,000, depending on the 
persons served in a particular geographic area.
    Passive reflectors and local exchange networks are unique systems 
with limited use. In many areas the systems are being replaced by new 
emerging technologies. Therefore, the final fee schedule excludes both 
uses and fees will continue to be determined on a Regional basis.
    Definitions. The final policy includes a definition for each use 
category and other commonly used terms in FSH 2709.11, section 48.

Fee Schedule Implementation

    The draft policy indicated the final fee schedule and associated 
policy changes would require Forest Service Regions 1 through 6 to 
modify their existing fee schedules and to give notice of those changes 
in the Federal Register. However, in consideration of the public 
comments that the fee schedules would still be incomplete, and because 
of the coordinated effort with the BLM to issue joint market-based fee 
schedules, the final fee schedule revises those procedures.
    Instead, the final fee schedule replaces the Regional schedules, 
except for passive reflector and local exchange network uses. The fee 
schedule in FSH 2709.11, section 36.01, exhibit 01, will be updated 
annually to reflect:
    1. The CPI-U adjustment factor to apply to annual billings for 
existing authorizations.
    2. Revised schedule fees, reflecting the CPI-U adjustment, to be 
used for new authorizations.
    3. Changes to the RMA population rankings.
    The agency recognizes that the final fee schedule may result in a 
reduction of current fees for some holders, for several reasons, 
including:
    1. Fees established by 1992 Regional schedules which have been 
increased by the CPI-U adjustment factor each year.
    2. Definition of a ``customer'' to include internal and private 
uses renting space within a communication facility and not re-selling 
communication services to others.
    3. The inherent leveling effect of a fee schedule applying a 
national market-based ranking system rather than specific geographic 
market conditions.
    However, the agency believes implementation of a national fee 
schedule for most communications uses and the annual updating of fees 
with applicable CPI-U adjustments through national direction will end 
the inequity 

[[Page 55101]]
between fees charged to users in different regions and at the same time 
return fair market value in rental income to the United States.
    The final fee schedule does not apply to Region 8 and 9 
(encompassing the 33 eastern States) or Region 10 (Alaska). The Forest 
Service is currently validating the fee schedule's applicability to 
communications uses in the 33 eastern States. The agency expects to 
implement the fee schedule for Regions 8 and 9 with any necessary 
adjustments in 1997. Region 10 (Alaska) will continue to use the 
Regional fee schedule adopted in 1992.
    The Forest Service plans the following actions and methods for 
implementing the final policy:
    1. The Forest Service and the BLM will develop and adopt a new 
document for communication use authorizations for use by both agencies. 
The new authorization will allow tenant occupancy, eliminating the 
requirement for prior written consent of the agency or issuance of 
separate authorizations to tenants.
    2. All authorization holders will receive notice of the regulatory 
changes affecting communications site use fees, and they will be given 
the option to convert to the new authorization. The holders will have 
60 days to respond to the authorized officer indicating their 
intention. Permits that expire will be replaced with the new 
authorization.
    3. Tenants may retain an existing authorization or relinquish the 
authorization and be included in the facility owner's authorization. 
Tenants electing to maintain an existing authorization will be billed 
the full use fee according to the schedule and category of use.
    4. Fees for uses not included in the schedule continue to be 
determined on a Regional basis by other reasonable methods, including 
appraisals.
    5. If a nonscheduled fee is indicated, the current fee remains in 
effect until the new fee is determined.
    6. Until new fees can be determined, nonscheduled use categories 
are not to be used to determine the highest value use for purposes of 
calculating building owner fees, but are based on the second highest 
value use in the facility covered by the schedule.
    7. Separate fees are not assessed for ancillary uses.
    8. Holders will be notified of the calendar year 1996 fee by 
written notice from the authorized officer. The notification will 
include instructions for appealing the new fees in accordance with 
existing regulations.
    9. The fee schedule is effective November 6, 1995 for new use 
authorizations (new construction) and on January 1, 1996, for existing 
use authorizations.

Controlling Paperwork Burdens on the Public

    This policy will not result in additional paperwork not already 
required by law or not already approved for use. The information 
collection being requested as a result of this action has been approved 
by OMB (Number 0596-0082, expiration date--June 30, 1996). Therefore, 
further review required under provisions of the Paperwork Reduction Act 
of 1995 (Pub. L. 104-13 (May 22, 1995)) and implementing regulations at 
5 CFR 1320 do not apply.

Regulatory Impact

    This final policy has been reviewed under Executive Order 12866 on 
Regulatory Planning and Review. The agency has determined that this 
final policy is a significant regulatory action subject to Office of 
Management and Budget review.
    Currently, annual costs for processing applications (including 
analysis for environmental and heritage resources) and determining fees 
for communications uses are estimated at $63,000 for the Forest Service 
and $32,500 for applicants. Annual costs to the Forest Service to 
administer existing authorized communications site uses are estimated 
at $1,985,500.
    Under the existing fee system, approximately $2 million are 
collected annually from the 6,300 authorized communications site users 
on National Forest System (NFS) lands. Fees are waived for other 
Federal, State, and local municipalities and some non-profit 
organizations.
    Each of the 6,300 current authorizations is issued for one user. 
The Forest Service requires proof of FCC licensing for each 
authorization. Due to the complexity of communications technology, the 
Forest Service is unable to economically track each user within each 
building. It is estimated that there are between 500 and 1,000 
unidentified and unauthorized users operating on NFS lands. These users 
may or may not be licensed by FCC and are not paying compensation for 
the use.
    The new process reduces the number of applications and permits, 
increasing benefits through reduced costs, more efficient 
administration, and reduction of environmental planning analyses. 
Administrative savings to the government would be approximately 
$975,000 and savings to communication site applicants and users would 
be approximately $16,250. With a decrease in caseload, Forest Service 
personnel will be able to provide better customer service to the 
public. Additionally, reduced caseload will enable the Forest Service 
to better administer existing uses, thereby ensuring uses are 
consistent with the terms and conditions of the lease and applicable 
policies, regulations, and laws. Non-profit organization that have 
annual certification by the Internal Revenue Service, such as public 
television and radio broadcasters and religious broadcasters, will have 
their fees waived. Reductions in operating expenses for these 
organizations may increase their ability to provide goods and services 
to the publics they serve.
    The new schedule increases receipts to the Federal treasury by an 
estimated $18 million annually by charging fees more accurately 
reflecting fair market value as required by the Federal Land Policy and 
Management Act. This is a conservative estimate based on the findings 
of the joint Forest Service and BLM 1991 Report to Congress where fees 
were determined to be $20 to $25 million below fair market value.
    Fees under the new schedule are consistent with those on private 
sites and reduce discrepancies between Federal and private site fees. 
Increased revenue to the Federal treasury assists with Administration 
and Congressional efforts to reduce the Federal deficit.
    The granting of a lease to communications site users with a 
guaranteed term provides benefits to the user for planning and may 
increase opportunities for obtaining financing. Additionally, a 
consistent fee system across the Forest Service and BLM reduces 
confusion and simplifies processing for corporate users who may require 
leases at more than one location.
    Moreover, this final policy has been considered in light of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been 
determined that this action will not have a significant economic impact 
on a substantial number of small entities as defined by that act. The 
phase-in of annual fees described in this notice will allow small 
entities to adjust to the new fees over a period of time and thus 
minimize the risk of adverse impact on some businesses because of the 
magnitude of the increase in some fees.

Environmental Impact

    Section 31.1b of Forest Service Handbook (FSH) 1909.15 (57 FR 
43180, September 18, 1992) excludes from documentation in an 
environmental assessment or impact statement ``rules, regulations, or 
policies to establish Service-wide administrative procedures, 

[[Page 55102]]
program processes or instructions.'' Based on consideration of the 
comments received and the nature and scope of this policy, the Forest 
Service has determined that this policy falls within this category of 
actions and that no extraordinary circumstances exist which would 
require preparation of an environmental assessment or environmental 
impact statement.

    Dated: July 17, 1995.
David G. Unger,
Associate Chief.

Final Handbook Revision

    Note: The Forest Service organizes its directive system by 
alphanumeric codes and subject headings. Only those sections of the 
Forest Service Handbook (FSH) 2709.11, Special Uses Handbook, 
affected by this policy are included in this notice. The intended 
audience for this direction is Forest Service employees charged with 
issuing and administering communications use authorizations. The 
text of the revised policy and fee schedule follows:
FSH 2709.11--Special Uses Handbook
Chapter 30--Fee Determination
    36.2--Communications Site Fee Schedule. This section provides 
direction for use of the fee schedule for communications uses on 
National Forest System lands.
    36.21--Determination of Fees. The authorized officer shall request 
that the holder provide a certified statement by October 15 of each 
year containing a list of tenants, by category of use, in the facility 
on September 30 of that year.
    Calculate the annual fee using the fee schedule (ex. 01) and the 
population strata based on the Ranally Metro Area (RMA) population and 
city listing (ex. 02). The fee schedule provides rental fees by 
category of use and population. See section 36.21a for exceptions to 
using the fee schedule.
    1. Consider the following when determining fees:
    a. If the communications site serves an RMA community (ex. 02), 
determine the fee by the category of use and the corresponding 
population range on the fee schedule (ex. 01).
    b. If the communications site does not serve a listed RMA community 
(ex. 02), determine the fee based on the population of the largest 
community (according to the most current ``Rand McNally Road Atlas'') 
served by the site.
    c. If the communications site does not serve a community, determine 
the fee based on the lowest scheduled fee (ex. 01) for the category of 
use, except in situations described in section 36.21a.
    d. Consider co-owned AM and FM stations located in the same 
facility as two radio stations in determining fees.
    e. Do not apply the 25 percent schedule rate for customers (sec. 
48.1, para. 5), including internal and private users, renting space in 
a communications facility.
    2. Apply the fee schedule to communications uses providing the 
following services:
    a. Television Broadcast. (Sec. 48.11a of this Handbook).
    b. AM and FM Radio Broadcast. (Sec. 48.11b).
    c. Cable Television. (Sec. 48.11c).
    d. Broadcast Translator, Low Power Television, and Low Power FM 
Radio. (Sec. 48.11d).
    e. Commercial Mobile Radio Service (CMRS) and Facility Manager. 
(Sec. 48.12a).
    f. Cellular Telephone. (Sec. 48.12b).
    g. Private Mobile Radio Service. Stand alone operations only. (Sec. 
48.12c).
    h. Microwave. Common carriers microwave relay and industrial 
microwave. (Sec. 48.12d).
    i. Other Communications Uses. Stand alone operations only. This 
category includes the following uses: amateur radio; personal/private 
receive only; and natural resource and environmental monitoring. (Sec. 
48.13).
    3. Except for fees that apply to a facility manager (para. 4), 
assess fees for all the preceding uses in paragraphs 2a to 2i providing 
rental space to tenants as follows:

    a. Determine a base fee from the schedule rate fee for the 
building owner or the use generating the highest schedule fee in the 
facility. If the highest schedule fee is a ``tenant'' fee, the 
``tenant'' fee becomes the base fee and the building owner's 
schedule rate fee is used as a tenant fee for calculating additional 
fees (following para. b).
    b. Add 25 percent of the schedule fee for each ``tenant'' (ex. 
01). Include 25 percent of the building owner's scheduled fee if it 
is not the highest fee and, therefore, not used as the base fee.

    Sample fee calculations are provided as follows:
    Example 1: A communications facility serving an RMA population area 
of 200,000, with a CMRS provider (building owner), one TV broadcaster, 
two FM broadcasters, one cellular telephone, and two private mobile 
radio users.

    Base fee=$6,000 (TV broadcast is the highest value use in the 
facility)+$750 (25% CMRS provider (building owner)+$2,000 (25% of 
two FM broadcasters)+$1,000 (25% cellular telephone)+$0.00 (no 
charge for PMRS)=Total fee for the facility: $9,750.

    Example 2: A communications facility serving an RMA population area 
of 800,000, with a TV station (building owner), one FM broadcaster, and 
three private mobile radio users.

    Base fee=$14,000 (TV broadcast is the highest value use in the 
facility)+$2,500 (25% FM broadcaster)+$0.00 (no charge for 
PMRS)=Total fee for the facility: $16,500.

    4. Fees for facility managers are calculated differently from other 
uses. Facility managers provide rental space for other communications 
uses; they do not directly provide communications services to others. 
Determine the base fee as described in the proceeding paragraph. 
However, if the highest valued scheduled fee for the facility is not 
the facility manager's, do not ``substitute'' the 25 percent facility 
manager rental fee for the tenant fee used for the base fee.
    Sample fee calculations for facility manager uses are provided as 
follows:
    Example 1: A facility manager serving an RMA population area of 
200,000, with three microwave providers and two amateur radio 
operators.

    Base fee=$3,000 (the facility manager schedule rate is the 
highest valued use in the facility)+$1,500 (25% three microwave 
users)+$0.00 (no charge for amateur radio)=Total fee for the 
facility: $4,500.

    Example 2: A facility manager serving an RMA population area of 
800,000, with a TV station, three FM broadcasters, and three private 
mobile radio users.

    Base fee=$14,000 (TV broadcast is the highest value use in the 
facility)+$7,500 (25% FM broadcaster)+$0.00 (no charge for 
PMRS)=Total fee for the facility: $21,500.

    36.21a--Exceptions to Fee Schedule. Fees not established by use of 
the fee schedule shall be based on comparative market surveys, 
appraisals, or other reasonable methods. All such fee determinations 
shall be documented, supported, and approved by the authorized officer. 
The following are exceptions to the fee schedule:
    1. The fee or use is not covered by the fee schedule.
    2. The fee has been or will be established through competitive bid 
or appraisal and will be updated in accordance with the terms and 
conditions of the authorization.
    3. The Regional Forester concurs with the authorized officer's 
determination that the communications site serves a population of 1 
million or more and the expected fee for the communications use is more 
than $10,000 above the established fee schedule.
    4. The expected fee exceeds the schedule rate fee by 5 times or 
more.
    36.22--Phase-in of Fees. Fees for new uses (new construction) do 
not qualify for a phase-in. For existing uses, phase in first year 
increases in fees of more than $1,000 over a 5-year period. For 
example, if the current total fee is $700, 

[[Page 55103]]
and the new total fee is $2,700, calculate the 5-year phase-in as 
follows:
    1. Year 1996. $700 (current total fee in 1995) + $1,000 (limit of 
first year increase) = $1,700 (first year's fee in 1996);
    2.  Year 1997. $1,700 (first year fee in 1996) + $250 (\1/4\ of 
remaining increase ($1,000) greater than $1,000)  x  1.02* = 
$1,989 (second year's fee in 1997);
    3.  Year 1998. $1,989 (second year's fee in 1997) + $250 (\1/4\ of 
remaining increase ($1,000) greater than $1,000)  x  1.02* = 
$2,284 (third year's fee in 1998);
    4. Year 1999. $2,284 (third year's fee in 1998) + $250 (\1/4\ of 
remaining increase ($1,000) greater than $1,000)  x  1.02* = 
$2,584 (fourth year's fee in 1999);
    5. Year 2000. $2,584 (fourth year's fee in 1999) + $250 (\1/4\ of 
remaining increase ($1,000) greater than $1,000)  x  1.02* = 
$2,891 (fifth year's fee in 2000);
    6. Year 2001. Phase-in of the fee schedule has been completed. In 
succeeding years, apply only the CPI-U to the previous year's fee. 
$2,891 (fifth year's fee in 2000)  x  1.02* = $2,949 (fee in 2001).

    *Assumed 2 percent increase each year in the United States 
Department of Labor Consumer Price Index for All Urban Consumers--
U.S. City Average (CPI-U).

    36.23--Updating Fee Schedule. The Director of Lands, Washington 
Office, shall update the fee schedule (sec. 36.21, ex. 01) annually, 
based on the CPI-U published in July of each year. Annual adjustments 
based on the CPI-U shall be limited to 5 percent. The Director of Lands 
shall review the fee schedule no later than 10 years after the date of 
implementation of this schedule, and at least every 10 years 
thereafter, to ensure that fees reflect fair market value.
    The Director of Lands shall review and update the RMA city and 
population table (sec. 36.21, ex. 02) annually.
    36.24--Fee Waivers and Exemptions. For direction on fee waivers and 
exemptions, see sections 31.2 through 31.4
    36.25--Fee Adjustment for Required Free Use. In no circumstance 
require a private holder to provide free rental space to Federal 
agencies or any other entity. In order to rectify past situations in 
which the Forest Service required the holder to provide free rental 
space, discount the annual fee by the same percentage that the entity 
receiving free use occupies (in square feet) in that building. For 
example, if the Forest Service previously required a building owner to 
provide free use for 20 percent of the building, discount the annual 
fee by 20 percent. Such a discount is valid for the period of time 
specified in an existing agreement between the parties.

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Chapter 40--Special Uses Administration
    48--Communications.
    48.1--Communications Uses. This special-uses group includes a 
variety of communications use categories which utilize National Forest 
System land. Typically the use occurs on a designated site and includes 
buildings, towers, and other support improvements.
    1. Authority. Authorizations for all communications uses are issued 
under the authority of the Act of October 21, 1976 (43 U.S.C. 1761). 
This authority must be cited on all authorizations issued for 
communications uses.
    2. Objectives. The objectives of communications use management are 
to authorize only those uses which meet forest land and resource 
management plan objectives; to facilitate the orderly development of 
sites to provide a safe and high quality communications environment; to 
maximize efficient use of the communications site; and to collect fair 
market value fees for communications uses on National Forest System 
lands.
    3. Policy. Except for single uses which involve minor development 
(such as personal receive only use, resource monitoring use, or 
temporary use), communications sites must be designated before a new 
authorization for communications use can be issued. Communications site 
designation is a land use allocation and shall be made through the land 
resource management planning process (FSM 1920).
    Fees for communication uses shall be assessed in accordance with 
direction in chapter 30 of this Handbook.
    Authorized officers shall not consider or issue authorizations that 
involve bartering or augmentation of goods or services, such as 
requiring the holder to provide free government use of facilities or 
construction of other improvements not associated with the use.
    4. Responsibility. The Regional Forester is responsible for 
approval of communication site plans; this responsibility may be 
delegated to the Forest Supervisor. Following communications site plan 
approval, Forest Supervisors have the authority to issue special-use 
permits, within the guidelines of the site plan. This responsibility 
may be delegated to the District Ranger.
    5. Definitions. Definitions for other technical terms not listed in 
this section may be found in Federal Standard 1037 (FS 1037A), a 
standard glossary of telecommunication terms available from the General 
Services Administration.
    Attenuation. Decrease in magnitude of current, voltage, or power of 
a signal in transmission between points. May be expressed in decibels 
(dB).
    Band Width. A portion of the frequency spectrum authorized for use 
by a specific license; measured in kilohertz (KHz) or megahertz (MHz). 
Of concern is the amount of spectrum authorized: that is, a small 
amount (15 KHz) for two-way radio, a larger amount (6 MHz) for 
television broadcast, and a very large amount (many MHz) for radar.
    Base Rent. The fee amount determined by the highest value use in a 
communications site facility. Base rent is applicable only to a 
facility owner's fee.
    Beam Path. Direction or corridor of energy radiated from a 
directional antenna. Usually refers to microwave, which requires an 
unobstructed point-to-point corridor.
    Continuous Broadcast or Constant Carrier. A continuously operating 
transmitter, not a microwave.
    Communications Site. An area of National Forest System land 
designated through the land and resource management planning process. A 
communications site may be limited to a single communications facility, 
but most often encompasses more than one. Each site is identified by 
name; usually a local prominent landmark, such as Bald Mountain 
Communications Site.
    Customer. An individual, business, organization, or agency that is 
paying a facility owner or tenant for communications services and is 
not re-selling communication services to others. Private (other use 
category) and internal (private mobile radio services category) 
communication uses leasing space in a building and not re-selling 
communication services to others are considered customers for fee 
calculation purposes.
    Effective Radiated Power. The power supplied to the antenna 
multiplied by the relative gain of the antenna in a given direction.
    Effective Receiver Sensitivity. The signal level required to detect 
and reproduce usable information from the local electromagnetic 
environment.
    Electromagnetic Compatibility. The ability of telecommunications 
equipment, subsystems, or system to operate in their intended 
operational environments without suffering or causing unacceptable 
degradation because of electromagnetic radiation or response. Refers to 
coexistence of different types of equipment in the same area.
    Facility. A building, tower, and/or other physical improvement that 
is built, installed, or established to house and support authorized 
communications uses.
    Facility Manager. The holder of a Forest Service communications use 
authorization who leases space for other communication users. A 
facility manager does not directly provide communications services to 
third parties.
    Frequency Assignment. The process of authorizing a specific 
frequency, group of frequencies, or frequency band to be used at a 
certain location under specific conditions such as band width, power, 
azimuth, duty cycle, or modulation.
    Gain. The increase in effective signal power in transmission under 
stated conditions. (Note: Power gain is expressed in decibels.)
    Harmful Interference. Any transmission, radiation, or induction 
which specifically degrades, obstructs, or interrupts the services 
provided by such stations.
    High Gain Antenna. An antenna whose effective radiated power in a 
given direction is greater than the input power.
    Microwave. High frequencies commonly between 900 and 30,000 
megahertz.
    Mobile Station. A two-way radio station designed for operation when 
in motion or at unspecified points.
    Noise. An undesired disturbance within the useful frequency band.
    Noise Floor. Existing volume (magnitude) of electronic noise power 
measured in decibels and referred to as an electronic value (such as 
milliwatt).
    Omnidirectional Antenna. An antenna whose radiation pattern is 
nondirectional in azimuth (meaning it radiates or receives in 360 
degrees).
    Point-to-point Radio Communications. Radio communications between 
two fixed stations.
    Polarization (Polarity). Term referring to antenna radiation 
polarity, which can be horizontal, vertical, or circular.
    Radiation Pattern. A graphical representation of power radiation of 
an antenna, usually shown for the two principal planes, vertical and 
horizontal.
    Receiver Desensitivity. A consequence of undesired reradiated 
frequency energy entering a receiver. Reduces the ability to receive 
weaker signals.
    Repeater. A device that simultaneously transmits all properly coded 
input signals received, or in the case of pulses, amplifies, reshapes, 
retimes, or performs a combination of any of these functions on an 
input signal for retransmission.
    Reradiation. Energy radiated by a galvanic junction in a nonlinear 

[[Page 55109]]
    manner. Sources may include radio equipment, antennas, metallic debris, 
defective structural components, unterminated antenna cables, or 
passive repeater.
    Tenant. A communications user who rents space in a communications 
facility and operates communications equipment for the purpose of re-
selling communications services to others for profit. Tenants may hold 
separate authorizations, without subtenancy rights, at the full 
schedule fee based on the category of use.
    Trunking. A system which allows a number of radio channels to be 
operated as a single system allowing service to multiple users.
    Wave Guide. A hollow metallic conduit within which electromagnetic 
waves may be propagated.
    7. Authorization and Administration.
    (4) Issuance of Authorizations. Use the appropriate authorization 
form to authorize use of National Forest System lands for 
communications uses by facility owners. Tenants in a facility owner's 
building are not required to have a separate authorization. If, 
however, a tenant requests an authorization, authorize tenant use using 
Form FS-2700-4a, Special-Use Permit for Communications Uses (ch. 50), 
without tenant occupancy rights, and charge the tenant the full 
schedule fee for that use (ch 30).
    (5) Fee Calculation. Calculate fees for communications uses in 
accordance with the direction in chapter 30. Fees for new sites may be 
established using a prospectus.
    48.11--Broadcast Uses.
    48.11a--Television Broadcast. This category includes facilities 
licensed by the Federal Communications Commission (FCC) that broadcast 
UHF and VHF audio and video signals for general public reception and 
the communications equipment directly related to the operation, 
maintenance, and monitoring of the use.
    Users include television stations (major and independent networks) 
that generate income through commercial advertisement and public 
television stations whose operations are supported by subscriptions, 
grants, and donations. Broadcast areas may overlap State boundaries. 
This category of use relates only to primary transmitters and not to 
any rebroadcast systems such as translators, transmitting devices such 
as microwave relays serving broadcast translators, or holders licensed 
by the FCC as low power television (LPTV).
    48.11b--AM and FM Radio Broadcast. This category includes 
facilities licensed by the Federal Communications Commission (FCC) that 
broadcast AM and FM audio signals for general public reception and the 
communications equipment directly related to the operation, 
maintenance, and monitoring of the use.
    Users include radio stations which generate revenues from 
commercial advertising and public radio stations whose revenues are 
supported by subscriptions, grants, and donations. Broadcast areas 
often overlap State boundaries. This category of use relates only to 
primary transmitters and not to any rebroadcast systems such as 
translators, microwave relays serving broadcast translators, or holders 
licensed by the FCC as low power FM radio.
    48.11c--Cable Television. This category includes FCC-licensed 
facilities that transmit video programming to multiple subscribers in a 
community over a wired or wireless network, and the communications 
equipment directly related to the operation, maintenance, or monitoring 
of the use. These systems normally operate as a commercial entity 
within an authorized franchise area. The category does not include 
rebroadcast devices, or personal or internal antenna systems such as 
private systems serving hotels or residences.
    48.11d--Broadcast Translator, Low Power Television, and Low Power 
FM Radio. This category of use consists of FCC-licensed translators, 
low power television (LPTV), low power FM radio (LPFM), and 
communications equipment directly related to the operation, 
maintenance, or monitoring of the use. Microwave facilities used in 
conjunction with the systems are included in the category. Translators 
receive a television or FM radio broadcast signal and rebroadcast it on 
a different channel or frequency for local reception. In some cases the 
translator relays the signal to another amplifier or translator. Low 
power television and FM radio stations are broadcast translators that 
originate programming. This category of use includes translators 
associated with public telecommunications service.
    48.12--Non-Broadcast Uses.
    48.12a--Commercial Mobile Radio Service (CMRS) and Facility 
Manager. This category of use includes FCC-licensed facilities 
providing mobile radio communications service to individual customers, 
and the communications equipment directly related to the operation, 
maintenance, or monitoring of the use. Examples of mobile radio systems 
in this category are two-way voice and paging services such as 
community repeaters, trunked radio (specialized mobile radio), two-way 
radio dispatch, public switched network (telephone/data) interconnect 
service, microwave communications link equipment, and internal and 
private communications uses not sold for a profit (that is, private 
mobile radio, internal microwave, and so forth). Some holders may not 
hold FCC licenses or operate communications equipment, but they may 
lease building, tower, and related facility space as part of their 
business enterprise and act as facility managers.
    48.12b--Cellular Telephone. Cellular telephone includes holders of 
FCC-licensed systems and related technologies for mobile communications 
that use a blend of radio and telephone switching technology to provide 
public switched network services for fixed and mobile users within a 
geographic area. The system consists of cell sites containing 
transmitting and receiving antennas, cellular base station radio, 
telephone equipment, and often microwave communications link equipment, 
and the communications equipment directly related to the maintenance 
and monitoring of the use.
    48.12c--Private Mobile Radio Service. This use category includes 
holders of FCC-licensed private mobile radio systems primarily used by 
a single entity for the purposes of mobile internal communications, and 
the communications equipment directly related to the operation, 
maintenance, or monitoring of the use. The communications service is 
not sold to others and is limited to the user. Services generally 
include private local radio dispatch, private paging services, and 
ancillary microwave communications equipment for the control of the 
mobile facilities.
    48.12d--Microwave. This use includes holders of FCC-licensed 
facilities used for long-line intrastate and interstate public 
telephone, television, information, and data transmissions, or used by 
pipeline and power companies, railroads, and land resource management 
companies in support of the holder's primary business. Also included is 
communications equipment directly related to the operation, 
maintenance, or monitoring of the use, such as mobile radio service.
    48.12e--Local Exchange Network. This use refers to a radio service 
which provides basic telephone service, primarily to rural communities.
    48.12f--Passive Reflector. Passive reflectors include various types 
of nonpowered reflector devices used to bend or ricochet electronic 
signals between active relay stations or between an active relay 
station and a terminal. A 

[[Page 55110]]
passive reflector commonly serves a microwave communications system. 
The reflector requires point-to-point line-of-sight with the connecting 
relay stations, but does not require electric power. Maintenance is 
minimal and reflectors seldom require site visits for maintenance or 
monitoring.
    48.13--Other Communications Uses. This category includes holders of 
FCC-licensed private communications uses such as amateur radio; 
personal/private receive-only antennas designed for the reception of 
electronic signals to serve private homes; natural resource and 
environmental monitoring equipment used by weather stations, seismic 
stations, and snow measurement courses; and other small, low power 
devices used to monitor or control remote activities. These facilities 
are personally owned and not operated for profit.

[FR Doc. 95-26490 Filed 10-26-95; 8:45 am]
BILLING CODE 3410-11-M