[Federal Register Volume 84, Number 186 (Wednesday, September 25, 2019)]
[Proposed Rules]
[Pages 50703-50706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20742]



[[Page 50703]]

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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 251

RIN 0596-AD38


Land Uses; Special Uses; Streamlining Processing of 
Communications Use Applications

AGENCY: Forest Service, USDA.

ACTION: Proposed rule.

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SUMMARY: The U.S. Department of Agriculture, Forest Service (Agency), 
is proposing to amend its existing regulations to implement part of 
Title VIII, Subtitle G, Section 8705, of the Agriculture Improvement 
Act of 2018, which requires regulations that streamline the Agency's 
procedures for evaluating applications to locate or modify 
communications facilities on National Forest System (NFS) lands.

DATES: Comments must be received in writing by November 25, 2019.

ADDRESSES: You may send comments, identified by RIN 0596-AD38, via one 
of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for sending comments.
    2. Email: [email protected].
    3. Mail: Director, Lands Staff, 201 14th Street SW, Washington, DC 
20250-1124.
    4. Hand Delivery/Courier: Director, Lands Staff, 1st Floor 
Southeast, 201 14th Street SW, Washington, DC 20250-1124.
    All comments, including names and addresses when provided, will be 
placed in the record and will be available for public inspection and 
copying. The public may inspect comments received at the Office of the 
Director, Lands, 1st Floor Southeast, Sidney R. Yates Federal Building, 
201 14th Street SW, Washington, DC, during normal business hours. 
Visitors are encouraged to call ahead at 202-205-3563 to facilitate 
entry into the building.

FOR FURTHER INFORMATION CONTACT: Joey Perry, Lands Staff, 530-252-6699, 
[email protected]. Individuals who use telecommunication devices for 
the deaf may call the Federal Relay Service at 800-877-8339 between 
8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

SUPPLEMENTARY INFORMATION: 

Background

    The Forest Service is responsible for managing Federal lands that 
are adjacent to rural and urban areas. The Forest Service authorizes 
the occupancy and use of NFS lands for communications facilities 
(buildings, towers and ancillary improvements) and fiber optic lines, 
which provide critical communications services, including television, 
radio, cellular, emergency services and broadband, to these areas. The 
Forest Service administers over 3,700 special use authorizations for 
communications uses at 1,530 communications sites and more than 400 
communications use authorizations for fiber optic lines on NFS lands.
    The Secretary of Agriculture's Rural Prosperity Task Force Report 
of 2017 identified connecting rural communities across the United 
States as a strategic priority for USDA because ``[i]n today's 
information-driven global economy, e-connectivity is not simply an 
amenity--it has become essential.''
    On January 8, 2018, the President signed Executive Order 13821, 
Streamlining and Expediting Requests to Locate Broadband Facilities in 
Rural America, which states that ``Americans need access to reliable, 
affordable broadband internet service to succeed in today's 
information-driven, global economy'' (83 FR 1507). The Executive Order 
directs Federal agencies ``to use all viable tools to accelerate the 
deployment and adoption of affordable, reliable, modern high-speed 
broadband connectivity to rural America. . . .'' Id. Agencies are 
encouraged to reduce barriers to capital investments, remove obstacles 
to broadband services, and more efficiently employ Government 
resources. Id.
    Section 6409 of the Middle Class Tax Relief and Job Creation Act of 
2012, as amended by section 606(a), division P, Consolidated 
Appropriations Act, 2018, also known as the Making Opportunities for 
Broadband Investment and Limiting Excessive and Needless Obstacles to 
Wireless Act (MOBILE NOW Act), requires the Forest Service within 270 
days of receipt of an application for a communications facility or a 
communications use to grant or deny the application and to notify the 
applicant of the grant or denial.

Need for Proposed Rule

    The President signed the Agriculture Improvement Act of 2018 (the 
Farm Bill) into law on December 20, 2018. Title VIII, Subtitle G, 
Section 8705, of the Farm Bill requires the Forest Service to issue 
regulations that streamline the process for evaluating applications for 
communications facilities on NFS lands and that require charging a 
programmatic administrative fee for communications use authorizations 
to cover the cost of the Forest Service's communications site program. 
Specifically, Section 8705(b) and (c) requires the Forest Service to 
issue regulations that:
    (1) Streamline the process for evaluating applications to locate or 
modify communications facilities on NFS lands;
    (2) Ensure, to the maximum extent practicable, that the process is 
uniform and standardized across the Forest Service;
    (3) Require that the applications for communications uses on NFS 
lands be evaluated and granted on a competitively neutral, 
technologically neutral, and non-discriminatory basis;
    (4) Include procedures for tracking applications for communications 
uses;
    (5) Include a minimum term of 15 years for communications use 
authorizations;
    (6) Require that a processing fee be charged for an application for 
a communications use;
    (7) Provide for prioritizing or streamlining evaluation of 
applications for communications uses on previously disturbed NFS lands; 
and
    (8) Require that a programmatic administrative fee be charged for 
communications use authorizations to cover the costs of administering 
the Forest Service's communications site program. The Forest Service 
will publish a subsequent document in the Federal Register for a 
proposed rule to implement the programmatic administrative fee. The 
programmatic administrative fee is not going to be collected pursuant 
to the currently enacted authority at this time.
    In addition, Section 8705(d) of the Farm Bill requires that in 
promulgating the regulations, the Forest Service consider how multiple 
communications facility applications can be considered simultaneously 
and how to eliminate overlapping requirements among organizational 
units in authorizing communications facilities on NFS lands.
    Current Forest Service regulations at 36 CFR part 251, subpart B, 
govern the processing of special use applications and issuance of 
special use authorizations for uses of NFS lands, including 
communications uses. Forest Service Handbook (FSH) 2709.11, Chapter 10, 
provides direction for processing special use applications and issuing 
special use authorizations. FSH 2709.11, Chapter 90, provides direction 
for communications site management, including processing of 
communications use applications and administration of communications 
use authorizations.

[[Page 50704]]

    A description of proposed regulatory revisions and compliance with 
the statutory requirements follows.

Proposed Revisions to Existing Regulations

    Section 251.54 of the current regulations sets forth the procedures 
by which the Agency reviews proposals and processes applications for 
special use authorizations. As required by Section 8705(b)(1) through 
(b)(3) of the Farm Bill, existing Sec.  251.54(g) contains numerous 
requirements for evaluating and granting special use applications, 
including applications for communications uses, in a uniform, 
standardized manner that is competitively and technologically neutral 
and non-discriminatory. Specifically, existing Sec.  251.54(g)(2)(i) 
through (g)(2)(iii) requires all special use applications to be 
evaluated in accordance with applicable law, including the National 
Environmental Policy Act (NEPA), and requires the Forest Service to 
defer to relevant findings of another Federal agency. Existing Sec.  
251.54(g)(4) requires the Forest Service to evaluate all special use 
applications based on the information provided by the applicant and 
other relevant information such as environmental findings. These 
requirements are reinforced by Forest Service directives in FSH 
2709.11, Chapter 10, section 11.14, paragraph 1, which prohibits 
discrimination against a proponent because of race, color, religion, 
sex, age, disability, marital status, or national origin; sections 
11.25, 12.51, and 12.52, which address compliance with applicable 
environmental law; and section 11.3, paragraph 1a, which encourages use 
of the standard special use application form, Standard Form 299.
    In addition, as required by Section 8705(c)(4) of the Farm Bill, 
existing regulations at 36 CFR 251.54(g)(4) provide for streamlining 
evaluation of applications for communications uses on previously 
disturbed NFS lands. In particular, Sec.  251.54(g)(4) provides that a 
group of applications for similar uses having minor environmental 
impacts may be evaluated with one analysis and approved in one 
decision. This provision allows for evaluation of applications for 
similar communications uses with minor environmental impacts, which may 
often be the case for proposed uses on previously disturbed NFS lands, 
to be streamlined in one analysis and one decision. Existing Sec.  
251.54(g)(4) is also consistent with the requirement in Section 8705(d) 
of the Farm Bill that in promulgating the regulations, the Forest 
Service consider how multiple communications facility applications can 
be considered simultaneously and how to eliminate overlapping 
requirements among organizational units in authorizing communications 
facilities on NFS lands.
    Proposed revisions to the Forest Service's NEPA regulations at 36 
CFR part 220 (84 FR 27544) would further streamline evaluation of 
communications use applications by facilitating reliance on a 
categorical exclusion from documentation in an environmental assessment 
or environmental impact statement (CE). The proposed revisions to the 
Agency's NEPA regulations would expand the current CE for special use 
authorizations at Sec.  220.5(e)(3) from 5 to 20 acres and would remove 
the qualifier ``minor'' to cover placement of additional communications 
facilities like towers and generators. The proposed NEPA rule would 
also establish a new CE at Sec.  220.5(d)(11) that does not require a 
project or case file and decision memo for reissuance of special use 
authorizations, which would reduce the backlog of expired and expiring 
authorizations.
    Consistent with the MOBILE NOW Act, existing directives at FSH 
2709.11, Chapter 90, section 90.3, paragraph 5, provide that within 270 
days of acceptance of a proposal as an application for a new 
communications facility or co-location of a new communications use in 
or on a facility managed by the Forest Service, or within 270 days of 
receipt of an application for modification of an existing 
communications facility or co-located communications use on a facility 
managed by the Forest Service, the authorized officer must grant or 
deny the application and notify the applicant in writing of the grant 
or denial.
    The Forest Service proposes to reinforce existing regulatory 
requirements implementing Section 8705 of the Farm Bill and the MOBILE 
NOW Act by adding two subparagraphs to Sec.  251.54(g)(4), which 
governs evaluation of special use applications. The first new 
subparagraph would implement the streamlining provisions for 
communications use applications by incorporating the requirement for 
the Agency to grant or deny an application for a communications use 
within 270 days of receipt and to notify the applicant in writing of 
the grant or denial. The second new subparagraph would provide for 
establishment of a process in the Forest Service's directive system for 
tracking applications for communications uses that provides for (a) 
identifying the number of applications received, approved, and denied; 
(b) for applications that are denied, describing the reasons for 
denial; and (c) describing the amount of time between receipt of an 
application and grant or denial of the application.
    The Forest Service proposes to further implement Section 8705 of 
the Farm Bill by adding two subparagraphs to Sec.  251.54(g)(5), which 
governs issuance of special use authorizations. Existing regulations do 
not address the term for communications use authorizations. Consistent 
with Section 8705(c)(2) of the Farm Bill, new paragraph (g)(5)(ii) 
would establish a term for communications use authorizations of 30 
years, unless case-specific circumstances warrant a shorter term.
    As noted, the Forest Service will publish a subsequent document in 
the Federal Register for a proposed rule to implement Section 
8705(c)(3)(B) of the Farm Bill, which requires regulations to implement 
a new programmatic administrative fee for communications use 
authorizations to cover the costs of administering the Forest Service's 
communications site program. The programmatic administrative fee is not 
going to be collected pursuant to the currently enacted authority at 
this time.

Proposed Revisions to Forest Service Directives

FSH 2709.11, Chapter 90

    The Forest Service is proposing revisions to its directives at FSH 
2709.11, Chapter 90, concurrently with this rulemaking. Consistent with 
Section 8705(b) and (c)(1) of the Farm Bill and the proposed revisions 
to the Agency's regulations, the proposed directives would amend 
Chapter 90, section 90.4, to establish responsibility for the tracking 
system for communications use applications; section 92 to provide for a 
30-day review period by communications use authorizations holders of 
new or modified communications site management plans; section 94.1 to 
implement procedures that would expedite requests to co-locate 
communications uses in or on existing communications facilities; and 
section 94.3 to establish procedures for inputting data needed to track 
communications use applications.
    A separate document will be published in the Federal Register 
announcing the availability of the proposed directives and list 
information on how to comment on the proposed directives. When the 
document is published, the proposed directives and a copy of the 
Federal Register document

[[Page 50705]]

will be posted at https://www.fs.fed.us/specialuses/special_comm.shtml.

Other Streamlining Efforts Implementing Section 8705 of the Farm Bill

    The Forest Service is developing an online mapping tool of 
communications sites on NFS lands. This mapping tool will provide basic 
information concerning the communications sites, such as their 
geographical location, site designation, and local contact information. 
This information will enable the public and stakeholders to locate 
communications sites on NFS lands and complete an initial feasibility 
assessment prior to submitting a proposal and application for use and 
occupancy of NFS lands. Once implemented, the online mapping tool will 
reinforce existing and proposed regulatory and directive requirements 
implementing the streamlining provisions in Section 8705(b)(1) of the 
Farm Bill. Implementation of the online mapping tool is not subject to 
public notice and comment under applicable law.

Regulatory Certifications

Executive Order 12866

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget will review all significant rules. OIRA has determined that 
this proposed rule is not significant.

Executive Order 13771

    This proposed rule has been reviewed in accordance with E.O. 13771 
on reducing regulation and controlling regulatory costs and has been 
designated as an ``other action'' for purposes of the E.O.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
OIRA has designated this proposed rule as not a major rule as defined 
by 5 U.S.C. 804(2).

National Environmental Policy Act

    The proposed rule would establish procedures for streamlining the 
Forest Service's evaluation of applications to locate or modify 
communications facilities on NFS lands. Agency regulations at 36 CFR 
220.6(d)(2) (73 FR 43093) exclude from documentation in an 
environmental assessment or environmental impact statement rules, 
regulations, or policies to establish Service-wide administrative 
procedures, program processes, or instructions. The Agency has 
concluded that the proposed rule falls within this category of actions 
and that no extraordinary circumstances exist which would require 
preparation of an environmental assessment or environmental impact 
statement.

Regulatory Flexibility Act Analysis

    The Agency has considered the proposed rule under the requirements 
of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). This proposed 
rule would not have any direct effect on small entities as defined by 
the Regulatory Flexibility Act. The proposed rule would not impose 
recordkeeping requirements on small entities; would not affect their 
competitive position in relation to large entities; and would not 
affect their cash flow, liquidity, or ability to remain in the market. 
Therefore, the Forest Service has determined that this proposed rule 
would not have a significant economic impact on a substantial number of 
small entities pursuant to the Regulatory Flexibility Act.

Federalism

    The Agency has considered the proposed rule under the requirements 
of E.O. 13132, Federalism. The Agency has determined that the proposed 
rule conforms with the federalism principles set out in this executive 
order; would not impose any compliance costs on the states; and would 
not have substantial direct effects on the states, on the relationship 
between the Federal government and the states, or on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, the Agency has concluded that the proposed rule does not 
have Federalism implications.

Consultation With Tribal Governments

    The Agency has determined that national tribal consultation is not 
necessary for the proposed rule. The proposed rule, which would update 
the Forest Service's administrative procedures for reviewing 
applications and issuing authorizations for communications uses, is 
programmatic and would not have any direct effects on tribes. Tribal 
consultation will occur as appropriate in connection with specific 
applications for communications facilities on NFS lands.

No Takings Implications

    The Agency has analyzed the proposed rule in accordance with the 
principles and criteria in E.O. 12630, Governmental Actions and 
Interference with Constitutionally Protect Property Rights. The Agency 
has determined that the proposed rule would not pose the risk of a 
taking of private property.

Energy Effects

    The Agency has reviewed the proposed rule under E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agency has determined that the proposed rule 
would not constitute a significant energy action as defined in E.O. 
13211.

Civil Justice Reform

    The Forest Service has analyzed the proposed rule in accordance 
with the principles and criteria in E.O. 12988, Civil Justice Reform. 
After adoption of the proposed rule, (1) all state and local laws and 
regulations that conflict with the proposed rule or that impede its 
full implementation would be preempted; (2) no retroactive effect would 
be given to the proposed rule; and (3) it would not require 
administrative proceedings before parties may file suit in court 
challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), signed into law on March 22, 1995, the Agency has 
assessed the effects of the proposed rule on state, local, and tribal 
governments and the private sector. The proposed rule would not compel 
the expenditure of $100 million or more by any state, local, or tribal 
government or anyone in the private sector. Therefore, a statement 
under section 202 of the Act is not required.

Controlling Paperwork Burdens on the Public

    The proposed rule does not contain any recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR part 1320 that are not already required by law or not already 
approved for use. Accordingly, the review provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing 
regulations at 5 CFR part 1320 do not apply.

List of Subjects in 36 CFR Part 251

    Electric power, Mineral resources, National forests, Rights-of-way, 
and Water resources.

    Therefore, for the reasons set forth in the preamble, the Forest 
Service proposes to amend part 251, subpart B, of title 36 of the Code 
of Federal Regulations as follows:

[[Page 50706]]

PART 251--LAND USES

Subpart B--Special Uses

0
1. The authority citation for part 251, subpart B, continues to read as 
follows:

    Authority: 16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551, 
580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1771.

0
2. In Sec.  251.54, revise paragraphs (g)(4) and (g)(5) to read as 
follows:


Sec.  251.54  Proposal and application requirements and procedures.

* * * * *
    (g) * * *
    (4) Response to all other applications--(i) General. Based on 
evaluation of the information provided by the applicant and other 
relevant information such as environmental findings, the authorized 
officer shall decide whether to approve the proposed use, approve the 
proposed use with modifications, or deny the proposed use. A group of 
applications for similar uses having minor environmental impacts may be 
evaluated with one analysis and approved in one decision.
    (ii) Communications use applications. Within 270 days of acceptance 
of a proposal as an application for a new communications facility or 
co-location of a new communications use in or on a facility managed by 
the Forest Service, or within 270 days of receipt of an application for 
modification of an existing communications facility or co-located 
communications use on a facility managed by the Forest Service, the 
authorized officer shall grant or deny the application and notify the 
applicant in writing of the grant or denial.
    (iii) Tracking of communications use applications. The Forest 
Service shall establish a process in its directive system (36 CFR 
200.4) for tracking applications for communications uses that provides 
for:
    (A) Identifying the number of applications received, approved, and 
denied;
    (B) For applications that are denied, describing the reasons for 
denial; and
    (C) Describing the amount of time between receipt of an application 
and grant or denial of the application.
    (5) Authorization of a special use--(i) General. Upon a decision to 
approve a special use or a group of similar uses, the authorized 
officer may issue one or more special use authorizations as defined in 
Sec.  251.51 of this subpart.
    (ii) Minimum term for communications use authorizations. The term 
for a communications use authorization shall be 30 years, unless case-
specific circumstances warrant a shorter term.

     Dated: September 6, 2019.
Daniel James Jiron,
Acting Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 2019-20742 Filed 9-24-19; 8:45 am]
 BILLING CODE 3411-15-P