[Federal Register Volume 86, Number 243 (Wednesday, December 22, 2021)]
[Proposed Rules]
[Pages 72540-72546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27681]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 251

RIN 0596-AD44


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

AGENCY: Forest Service, Agriculture (USDA).

ACTION: Proposed rule.

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SUMMARY: The Forest Service (Agency), U.S. Department of Agriculture, 
is proposing to amend its existing regulations to charge a statutorily 
required annual programmatic administrative fee for new and existing 
communications use authorizations to cover the costs of administering 
the Agency's communications use program. Existing communications use 
authorizations would be amended to provide for payment of the required 
annual programmatic administrative fee.

DATES: Comments must be received in writing by February 22, 2022.

ADDRESSES: Comments, identified by RIN 0596-AD44, may be submitted via 
one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for sending comments.
    2. Mail: Director, Lands & Realty Management Staff, 201 14th Street 
SW, Washington, DC 20250-1124.
    3. Hand Delivery: Director, Lands & Realty Management Staff, 1st 
Floor South East, 201 14th Street SW, Washington, DC 20250-1124.
    All timely comments, including names and addresses when provided, 
will be placed in the record and will be available for public 
inspection and copying. The public may review comments at Office of the 
Director, Lands & Realty Management, 1st Floor Southeast, Sidney R. 
Yates Federal Building, 201 14th Street SW, Washington, DC, during 
normal business hours. Visitors are encouraged to call ahead at 202-
205-3563 to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT: Joey Perry, Lands & Realty Management 
Staff, 530-251-3286, [email protected]. Individuals who use 
telecommunication devices for the deaf/hard-of-hearing (TDD) may call 
the Federal Relay Service (FRS) at 1-800-877-8339 between 8:00 a.m. and 
5:00 p.m., 24 hours per day, every day of the week, including holidays.

SUPPLEMENTARY INFORMATION:

Background

    The Agency is responsible for managing Federal lands that are 
adjacent to rural and urban areas. These rural and urban communities 
depend on Federal lands for critical communications services, including 
emergency services, internet service, cellular communications, and 
television and radio broadcasting services. The Agency authorizes the 
use and occupancy of National Forest System (NFS) lands for 
communications facilities (buildings, towers, and ancillary 
improvements and fiber optic cable) that provide these critical 
communications services. The Agency administers over 3,700 special use 
authorizations for infrastructure that supports over 10,000 wireless 
communications uses at 1,367 communications sites and administers over 
400 special use authorizations for fiber optic cable communications 
uses on NFS lands.
    The U.S. Department of Agriculture's Rural Prosperity Task Force 
Report of 2017 identified connecting rural communities across the 
United States as a strategic priority for USDA because ``[i]n today's 
information-driven global economy, e-connectivity is not simply an 
amenity--it has become essential.''
    Executive Order 13821, Streamlining and Expediting Requests to 
Locate Broadband Facilities in Rural America, issued January 8, 2018, 
states that ``Americans need access to reliable, affordable broadband 
internet service to succeed in today's information-driven, global 
economy'' (83 FR 1507). Executive Order 13821 directs Federal agencies 
``to use all viable tools to accelerate the deployment and adoption of 
affordable, reliable, modern high-speed broadband connectivity to rural 
America. . . .'' Id. Agencies are encouraged to reduce barriers to 
capital investments, remove obstacles to broadband services, and more 
efficiently employ Government resources. Id.
    On June 12, 2020, a Secretarial Memorandum was issued to the Chief 
of the Forest Service, which directs the Agency to focus resources on 
activities that support the productive use of NFS lands to deliver 
goods and services efficiently and effectively to meet the needs of the 
public. The Agency was specifically directed to expedite broadband 
development on NFS lands to increase connectivity in rural America.

Need for the Proposed Rule

    Regardless of where they live, consumers require reliable 
communications services. The need for wireless connectivity for 
teleworking, tele-education, telehealth, and telemedicine is even more 
vital considering events like the COVID-19 pandemic. To meet the demand 
for these critical services, the Agency must be prepared to do its part 
by ensuring it has the necessary staff and expertise to administer its 
communications use program.
    In addition to being statutorily mandated as outlined below, the 
annual programmatic administrative fee would provide the funds 
necessary to support a more modernized, efficient, and enhanced 
communications use program. Programmatic administrative fee revenues 
would be used to reduce the backlog of expired communications use 
authorizations; streamline implementation by fully staffing the 
program; enhance automated applications; improve internal and external 
outreach, including training for employees; fund the national billing 
team; conduct national oversight; and obtain or improve access to 
communications sites.
    The Agriculture Improvement Act of 2018 (the 2018 Farm Bill) was 
signed into law on December 20, 2018. Title VIII, Subtitle G, section 
8705, of the 2018 Farm Bill, as amended by Division D, Title IV, 
section 416, of the Further Consolidated Appropriations Act, 2020 (Pub. 
L. 116-94), codified as 43 U.S.C. 1761a, requires the Agency to charge 
an annual programmatic administrative fee for communications use 
authorizations to cover the costs of the Agency's communications use 
program. Specifically, section 8705(c)(3)(B) directs the Agency to 
issue regulations that require a structure of fees for issuing 
communications use authorizations based on the cost to the Agency for 
any maintenance or other activities required to be performed by the 
Agency as a result of the location or modification of a communications

[[Page 72541]]

facility. Section 8705 of the 2018 Farm Bill, as amended, also 
authorizes the Agency to retain and spend annual programmatic 
administrative fee revenues to cover the costs of the Agency's 
communications use program. The proposed rule would implement the 
statutory requirement to charge an annual programmatic administrative 
fee for communications use authorizations to cover the costs of 
administering the Agency's communications use program.
    Current Forest Service regulations at 36 CFR part 251, subpart B, 
govern the processing of special use applications and issuance of 
special use authorizations for uses of NFS lands, including 
communications uses. Forest Service Handbook (FSH) 2709.11, Chapter 90, 
provides direction for communications use management, including 
processing of communications use applications and administration of 
communications use authorizations. The following is a description of 
the proposed regulatory and directive revisions needed to comply with 
section 8705 of the 2018 Farm Bill.

Proposed Revisions to Existing Regulations

    Section 251.54(g)(5) of the Agency's current regulations sets forth 
the Agency's procedures for authorization of a special use. The Agency 
proposes to implement section 8705(c)(3)(B) of the 2018 Farm Bill by 
adding a new subparagraph to Sec.  251.54(g)(5), which governs the 
issuance of special use authorizations. Consistent with section 
8705(c)(3)(B), new paragraph (g)(5)(iii) would require that an annual 
programmatic administrative fee be charged for communications use 
authorizations to cover the costs of administering the Agency's 
communications use program.
    Section 8705(f)(4) of the 2018 Farm Bill provides that programmatic 
administrative fee revenues are to be used to cover any costs incurred 
by the Agency in administering its communications use program, 
including but not limited to the costs of on-site reviews of 
communications sites, developing communications site management plans, 
hiring and training personnel for the communications use program, 
conducting internal and external outreach for and national oversight of 
the communications use program, and obtaining or improving access to 
communications sites on NFS lands. This annual programmatic 
administrative fee would be in addition to land use fees assessed based 
on the fair market value of the rights and privileges granted by each 
communications use authorization, as provided for in existing 
regulations at 36 CFR 251.57. The Agency does not have authority to 
retain and spend the land use fees it collects for communications uses, 
which must be deposited into the United States Treasury. In addition, 
the Agency charges fees to recover the Agency's costs for processing 
communications use applications and monitoring compliance with 
communications use authorizations, as provided for in existing 
regulations at 36 CFR 251.58. Cost recovery fees are charged to 
specific applicants for and holders of a communications use 
authorization to cover costs associated with processing their 
application and monitoring compliance with their communications use 
authorization. Neither of these existing fees covers the programmatic 
costs of administering the communications use program.
    To meet the requirements of section 8705 of the 2018 Farm Bill, the 
Agency proposes to charge an annual programmatic administrative fee of 
$1,400 per communications use authorization for wireless uses such as 
television and radio broadcasting, cellular telephone, and microwave 
and $400 per communications use authorization for fiber optic cable. 
The annual programmatic administrative fee for authorizations for fiber 
optic cable would be lower because authorizations for this type of use 
have lower programmatic administrative costs, as explained below. These 
two programmatic administrative fees reflect the Agency's total 
estimated annual costs of administering its communications use program, 
allocated as deemed applicable by the Agency between communications use 
authorizations for wireless uses and communications use authorizations 
for fiber optic cable, and prorated to split the cost evenly among the 
authorizations of each type. This allocation and proration would 
provide for programmatic administrative fees for communications use 
authorizations that are equitable to the extent possible within the 
constraints of the 2018 Farm Bill, which requires the Forest Service to 
recover the programmatic administrative costs for its communications 
use program. The Agency will include in the rulemaking record 
documentation of the estimated costs upon which the $1,400 and $400 
annual programmatic administrative fees are based. The two annual 
programmatic administrative fees would be updated annually based on the 
difference in the U.S. Department of Labor Consumer Price Index for All 
Urban Consumers, U.S. City Average (CPI-U), from July of one year to 
July of the following year, rounded up or down to the nearest dollar. 
The Agency would review the two annual programmatic administrative fees 
no later than 5 years after the effective date of the final rule and at 
least every 5 years thereafter and would revise the fees as needed to 
ensure they continue to reflect the Agency's total estimated annual 
costs of administering its communications use program.
    In the last decade there has been a significant increase in the 
volume, complexity, and types of communications uses in the United 
States, including on NFS lands. Additional Agency personnel, improved 
efficiencies, and current technology are critical for meeting this 
increased demand for communications uses on NFS lands, as well as the 
Administration's goal of enhancing access to high-speed broadband on 
Federal lands. Per direction in the 2018 Farm Bill, the Agency would 
use the annual programmatic administrative fee revenues to cover the 
costs of administering its communications use program, including but 
not limited to the costs of on-site reviews of communications sites, 
preparation of communications site management plans, and program 
oversight and management. This includes reducing the backlog of expired 
communications use authorizations, streamlining program implementation, 
enhancing automated applications, hiring and training personnel for the 
communications use program, conducting internal and external outreach 
and enhanced training for employees, and obtaining or improving access 
to communications sites on NFS lands.
    Estimated costs for administering the Agency's communications use 
program are $5.4 million per year, equivalent to the total programmatic 
administrative fee revenues that would be collected using the proposed 
fee structure from existing communications use authorization holders as 
of 2019. The revenues would cover the personnel and other resource 
costs needed to administer a more modernized, efficient, and enhanced 
communications use program, thereby enhancing deployment of wireless 
and wired communications services.

[[Page 72542]]



                                        Table 1--Estimated Cost Breakdown
----------------------------------------------------------------------------------------------------------------
                                     Wireless
              Task                    (3,715)      Fiber  (444)       Totals        Rates          Remarks
----------------------------------------------------------------------------------------------------------------
On-site Reviews.................   $2,799,215.35           $0.00   $2,799,215.35    $753.49  3,715 (wireless).
Communications Site Management        435,984.69            0.00      435,984.69     117.36  3,715 (wireless).
 Plans.
Program Oversight and Management
     Salary, benefits,      1,542,616.60      184,366.56    1,726,983.16     415.24  4,159 (wireless &
     and overhead costs.                                                                      fiber optic
                                                                                              cable).
     Staff training.....      108,960.95       13,022.52      121,983.47      29.33  4,159 (wireless &
                                                                                              fiber optic
                                                                                              cable).
     Access.............      300,000000            0.00      300,000.00      80.75  3,715 (wireless).
                                 ------------------------------------------------
        Total...................    5,186,777.59      197,389.08    5,384,166.67
                                 --------------------------------
Total Share for Wireless                1,396.17   1,400 rounded
 Authorizations ($5,186,777.59/
 3715).
                                 --------------------------------
Total Share for Fiber Optic               444.57     400 rounded
 Cable Authorizations
 ($197,389.08/444).
----------------------------------------------------------------------------------------------------------------

    To determine the two annual programmatic administrative fees, the 
Agency first estimated the total annual programmatic administrative 
costs for its communications use program, including the costs of on-
site reviews of authorized communications sites, preparation of 
communications site management plans, hiring and training personnel for 
the communications use program, land use fee billing and collection, 
and obtaining or improving access to communications sites. Those costs 
were then allocated between communications use authorizations for 
wireless uses and communications use authorizations for fiber optic 
cable. The total costs for each authorization type was then prorated to 
divide the total equally among all communications use authorizations of 
each type: 3,715 wireless authorizations and 444 fiber optic 
authorizations. As shown in Table 1 above and explained in further 
detail below, fiber optic cable authorizations are not allocated the 
costs of on-site reviews of communications sites, preparation of 
communications site management plans, or obtaining or improving access 
to communications sites because those costs are not incurred in 
connection with those authorizations. All other annual programmatic 
administrative costs were allocated to communications use 
authorizations for wireless uses and fiber optic cable.

On-Site Reviews

    Annual costs of on-site reviews of communications sites were 
allocated only to communications use authorizations for wireless uses. 
This is because wireless use authorizations involve installation, 
operation, and maintenance of above-ground communications facilities 
such as towers, which require annual on-site reviews. However, fiber 
optic cable authorizations typically do not require on-site reviews 
because fiber optic cable is buried or co-located on other 
infrastructure, such as a utility line.
    The total annual estimated cost of on-site reviews of 
communications sites on NFS lands is approximately $2,800,000. The 
estimate of $2,800,000 is based on the cost to conduct an annual on-
site review of each of the 1,367 communications sites on NFS lands, 
including:
     Reviewing any pertinent information related to 
communications sites and authorized uses;
     Notifying and coordinating with communications use 
authorization holders regarding on-site reviews;
     Traveling to and from communications sites;
     Conducting on-site reviews, including gathering data for 
development and implementation of the communications site management 
plans governing all communications uses at each site and ensuring that 
technical and administrative requirements for management of each site 
are being met to provide for compatibility of communications uses;
     Documenting and approving maintenance activities;
     Preparing a report and any follow-up correspondence; and
     Entering data into the Special Uses Data System and 
conducting any needed follow-up.
    On average, this work is conducted by a General Schedule (GS)-11, 
step 1, employee at a daily rate of $326. The daily rate was based on 
the yearly salary in 2019 for a GS-11, step 1, employee of $62,236, 
plus estimated employee benefits (e.g., health insurance and retirement 
benefits) of $22,764, or $85,000 per year. The daily rate was 
calculated by dividing the yearly salary and benefits of $85,000 by 
2,087 hours per year (the divisor used by the Office of Personnel 
Management to compute federal employees' cost-to-government hourly 
rate) and multiplying the quotient of $40.73 per hour by 8 hours, a 
typical workday, which equals $325.84, or $326 rounded to the nearest 
dollar. On-site reviews of authorized communications uses take 
approximately 2.125 days to complete, or $692.75 for employee salary, 
plus $60.74 for vehicle expenses (2 days of vehicle use at $11.87 per 
day and an estimated 100 miles driven at $0.37 per mile), for a total 
estimated cost of $753.49 annually per authorization. The total annual 
estimated cost of $2,800,000 for on-site reviews of communications 
sites was determined by multiplying the annual estimated cost of 
$753.49 per authorization by 3,715, the total number of communications 
use authorizations for wireless uses, rounded.

Communications Site Management Plans

    Similar to the cost of on-site reviews, annual costs of 
development, approval, and maintenance of communications site 
management plans were also allocated only to communications use 
authorizations for wireless uses. Wireless use authorizations are 
subject to a communications site management plan to facilitate orderly 
development of communications sites, ensure authorized uses are 
compatible, and provide for a safe and high-quality communications 
environment. Fiber optic cable authorizations do not need a 
communications site management plan because fiber optic cable is buried 
or co-located on other infrastructure and cannot cause interference 
concerns.
    For development, approval, and maintenance of communications site 
management plans, the Agency estimated a total annual programmatic 
administrative cost of $436,000. This estimate was based on the cost of 
completing or updating 137 communications site management plans per 
year, given that there are 1,367 communications sites on NFS lands and 
standard Agency practice requires communications site management plans 
to be updated every 10 years to keep

[[Page 72543]]

pace with changes in technology and industry protocols. The preparation 
work, coordination of the site visit, and approval of the 
communications site management plan takes approximately 2 days for a 
local employee to complete, at an estimated cost of $652 for employee 
salary and benefits (a GS-11, step 1, employee at a daily rate of $326, 
see calculations above), travel costs of $2,500 (using standard per 
diem rates and typical travel costs) for a national or regional 
communications site specialist to visit the site and complete the work, 
and $30.37 for vehicle expenses (1 day of vehicle use at $11.87 per day 
and an estimated 50 miles driven at $0.37 per mile). The salary costs 
for the national or regional communications site specialist that visits 
the site were included under the program oversight and management costs 
described below, so they are not included in the estimate of total 
costs for communications site management plans. The total annual 
estimated cost of $436,000 for development, approval, and maintenance 
of communications site management plans was determined by multiplying 
the annual estimated cost of $3,182.37 per site by 137, the total 
number of communications site management plans that would be completed 
or updated each year, rounded.

Program Oversight and Management

    The Agency estimated a total annual programmatic administrative 
cost of approximately $2,149,000 for program oversight and management 
of the Agency's communications use program, including a trained and 
dedicated staff of 14 employees; overhead for travel, staff training, 
office space, supplies, and information technology development and 
support; biannual employee training; and the cost of obtaining or 
improving access to communications sites on NFS lands. Specifically, 
the total estimated annual cost of program oversight and management was 
based on the following:
     Salary, benefits, and overhead costs: Costs for general 
program administration, salary, and overhead costs of approximately 
$1,727,000 for the 14 employees needed to manage the program, ranging 
from a GS-9 to a GS-14 employee.
     Staff training: Costs of approximately $122,000 for 2 
yearly employee trainings for communications use management. Each 1-
week training session includes the cost of training materials, the 
venue, and incidental costs for 23 employees (20 students, who are 
employees who administer the communications use program at the field 
level, and 3 instructors).
     Access: Costs of approximately $300,000 for obtaining or 
improving access to communications sites (fiber optic cable 
authorizations are exempt from this cost because they do not require 
additional access).
    Of the above listed costs, the total estimated allocations for the 
3,715 communications use authorizations for wireless uses are as 
follows: $2,799,215 for annual on-site reviews of communications sites, 
$435,985 for development, approval, and maintenance of communications 
site management plans, $1,542,617 for general program administration 
(prorated to 3,715 of the total 4,159 authorizations this cost applies 
to), $108,961 for training (prorated to 3,715 of the total 4,159 
authorizations this cost applies to), and $300,000 for obtaining or 
improving access to communications sites. This results in a wireless 
use authorization cost total of approximately $5,186,777. Divided by 
3,715 authorizations for wireless uses, the annual programmatic 
administrative fee for wireless use authorization is set at $1,400 
($1,396.17 rounded to the nearest hundred dollars).
    For the 444 communications use authorizations for fiber optic 
cable, the total estimated annual programmatic administrative costs 
include $184,367 for general program administration (prorated to 444 of 
the total 4,159 authorizations), and $13,023 for training (prorated to 
444 of the total 4,159 authorizations), resulting in a total of 
$197,390. The annual programmatic administrative fee for those 
authorizations is calculated by dividing $197,390 by 444 authorizations 
for fiber optic cable, which equals $444.57, or $400 rounded to the 
nearest hundred dollars.
    Section 8705(f) of the 2018 Farm Bill authorizes the Agency to 
retain and spend the annual programmatic administrative fee revenues 
that would be collected under the proposed rule to cover the costs of 
administering the Agency's communications use program. The total fees 
proposed here would collect $5,186,777 for wireless use authorizations 
and $197,390 for fiber optic cable use authorizations, a total of 
$5,384,167 to be collected and retained by the Forest Service for 
administering the communications use program.

Proposed Revisions to Agency Directives

FSH 2709.11, Chapter 90

    The Agency is proposing to revise its directives in FSH 2709.11, 
Chapter 90, concurrently with this rulemaking. Consistent with section 
8705(c)(3) of the 2018 Farm Bill and the proposed revisions to the 
Agency's regulations, the proposed directive would amend Chapter 90 to 
implement an annual $1,400 programmatic administrative fee for 
communications use authorizations for wireless uses and an annual $400 
programmatic administrative for communications use authorizations for 
fiber optic cable and provide for updating the two annual programmatic 
administrative fees every 5 years. The proposed directive would also 
amend Chapter 90 to establish direction on expenditure of annual 
programmatic administrative fee revenues.
    Upon adoption of a final rule, a separate notice will be published 
in the Federal Register announcing the availability of the proposed 
directive, including information on how to comment on the directive and 
a link to the proposed directive, which will be posted on the Agency's 
website.

Regulatory Certifications

Executive Order 12866

    For rules designated as significant by the Office of Information 
and Regulatory Affairs (OIRA) in the Office of Management and Budget, 
Executive Order (E.O.) 12866, as supplemented by E.O. 13563, directs 
agencies to conduct a regulatory impact analysis, including an 
assessment of costs and benefits of available regulatory alternatives 
and regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety, and 
distributive impacts). E.O. 13563 emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility. The regulatory impact analysis must assess 
both the costs and benefits of the regulation, recognizing quantifiable 
analysis is not always possible, but that a reasoned determination be 
made that the benefits justify the regulatory costs.
    The Agency conducted a regulatory impact analysis for the proposed 
amendments to 36 CFR part 251, subpart B, and FSH 2709.11, Chapter 90, 
to charge an annual programmatic administrative fee for new and 
existing communications use authorizations to cover the costs of 
administering a more modernized, efficient, and enhanced Agency 
communications use program. The regulatory impact analysis compares the 
costs to administer the communications use program under the existing 
regulations with the costs to administer the more modernized, 
efficient, and enhanced

[[Page 72544]]

communications use program under the proposed rule. Administrative 
costs of the program under the existing regulations are covered by 
federal budget allocations; under the proposed rule, administrative 
costs of the program would be covered by revenues from the annual 
programmatic administrative fee for communications use authorizations 
(i.e., payment for the annual cost of administering the program would 
be transferred from the Federal government to communications use 
authorization holders). Benefits, including programmatic modernization, 
efficiencies, and enhancements, are addressed qualitatively.
    As of 2019, a total of 4,159 (wireless and fiber optic cable) 
communications use authorizations were held by 1,448 unique entities, 
including 765 businesses, 384 governments or agencies, 266 
organizations, and 33 individuals or households. Of the 4,159 
communications use authorizations, 3,715 were for wireless 
communication uses, and 444 were for fiber optic cable. Based on an 
annual programmatic administrative fee of $1,400 per communications use 
authorization for wireless uses and $400 per communications use 
authorization for fiber optic cable, the Agency would collect a total 
of approximately $5.4 million annually from communications use 
authorization holders. The revenue generated from the annual 
programmatic administrative fee would cover the annual costs of 
administering the Agency's communications use program. Based on the 
costs of a more modernized, efficient, and enhanced program, annual 
programmatic administrative costs under the proposed rule are estimated 
to be $1.8 million greater than annual programmatic administrative 
costs under the current regulations. Assuming annual incremental costs 
of $1.8 million are constant over a period of 15 years, the present 
value of these costs is estimated at $18 million using a 7% discount 
rate and $22 million using a 3% discount rate. Providing present value 
costs using these assumptions is consistent with Office of Management 
and Budget Circular A-4 implementing E.O. 12866 when there is 
uncertainty about discount periods.
    The annual programmatic administrative fee would provide the funds 
necessary to support a more modernized, efficient, and enhanced 
communications use program. Programmatic administrative fee revenues 
would be used to reduce the backlog of expired communications use 
authorizations; streamline implementation by fully staffing the 
program; enhance automated applications; improve internal and external 
outreach, including training for employees; fund the national billing 
team; conduct national oversight; and obtain or improve access to 
communications sites. The benefits from a more modernized, efficient, 
and enhanced communications use program funded by the annual 
programmatic administrative fee for communications use authorizations 
are expected to exceed the incremental annual programmatic 
administrative costs of $1.8 million per year.
    The benefits that would be achieved under the proposed rule are 
consistent with the objectives E.O. 13821, Streamlining and Expediting 
Requests to Locate Broadband Facilities in Rural America (2018), which 
encourages Federal agencies to reduce barriers to capital investments, 
remove obstacles to broadband services, and more efficiently employ 
Federal resources. The benefits from implementation of the proposed 
rule would also be consistent with the goals of the 2020 Secretarial 
Memorandum to the Chief of the Forest Service, which directs the Agency 
to expedite broadband development on NFS lands to increase connectivity 
in rural America. The proposed rule is also required by section 8705 of 
the 2018 Farm Bill, which directs the Agency to charge an annual 
programmatic administrative fee for communications use authorizations 
to cover the Agency's costs to administer its communications use 
program. Section 8705 of the 2018 Farm Bill, as amended, authorizes the 
Agency to retain and spend programmatic administrative fee revenues.
    Costs associated with potential loss of other resources or 
environmental goods and services foregone by the presence of 
communications uses on NFS lands (opportunity costs) are assumed to be 
no different and could be lower under the proposed rule compared to 
baseline administrative conditions. Requirements to identify and 
mitigate environmental impacts from communications uses through 
National Environmental Policy Act compliance and Agency land management 
planning would remain unchanged under the proposed rule. More 
modernized, efficient, and enhanced program administration supported by 
the annual programmatic administrative fee charged under the proposed 
rule would provide greater opportunities to ensure environmental and 
resource protection.
    Average annual programmatic administrative fees incurred by 
communications use authorization holders are projected to range from 
$3,400 to $4,800 per entity, given that a single entity often has more 
than one authorization. There is potential for existing or future 
customers to alter their decisions about obtaining a communications use 
authorization in response to the cost of the annual programmatic 
administrative fee or anticipated benefits (e.g., time-valued revenue 
gains). However, the effect of these disincentives and incentives on 
decision making is likely to be small or hard to measure in comparison 
to the magnitude of other operating costs or expenditures, annual 
revenues, or other market factors affecting management and investment 
decisions. In many cases, a decision to pursue a communications use 
authorization is also driven by the comparative operating advantages of 
locating communications uses or facilities on NFS lands versus locating 
them on non-NFS lands. The proposed rule is therefore not expected to 
trigger significant changes in the number of communications use 
authorizations or the output of communications services under those 
authorizations. Economic or distributional impacts (i.e., changes in 
jobs and labor income) of communications use authorizations are 
likewise not expected to be significant.

Congressional Review Act

    Pursuant to Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 
801 et seq.), OIRA has designated this proposed rule as not a major 
rule as defined by 5 U.S.C. 804(2).

National Environmental Policy Act

    The proposed rule would establish procedures for charging an annual 
programmatic administrative fee for communications use authorizations 
to cover the costs of administering the Agency's communications use 
program. Agency regulations at 36 CFR 220.6(d)(2) (73 FR 43093) exclude 
from documentation in an environmental assessment (EA) or environmental 
impact statement (EIS) ``rules, regulations, or policies to establish 
Service-wide administrative procedures, program processes, or 
instructions.'' The Agency has concluded that the proposed rule falls 
within this category of actions and that no extraordinary circumstances 
exist which would require preparation of an EA or EIS.

Regulatory Flexibility Act Analysis

    Consistent with the Regulatory Flexibility Act (RFA), 5 U.S.C. 602 
et seq., as amended by the Small Business Regulatory Flexibility 
Enforcement

[[Page 72545]]

Fairness Act of 1996, and E.O. 13272, the Agency conducted a threshold 
regulatory flexibility analysis to determine whether the proposed rule 
would have a significant economic impact on a substantial number of 
small entities. If the threshold regulatory flexibility analysis 
supports a determination that the proposed rule would not have a 
significant economic impact on a substantial number of small entities, 
a regulatory flexibility analysis is not needed.
    Pursuant to the threshold regulatory flexibility analysis, the 
Agency has determined that the proposed rule would impact 1,448 unique 
entities that hold a communications use authorization. Of those 1,448 
unique entities, 1,080 qualify as small entities, including 645 small 
businesses, 187 small governmental entities, and 248 small 
organizations.
    The threshold RFA analysis results suggest that the economic impact 
from the proposed rule would be less than 1% of annual salaries and 
wages for most (180 of 187) small governments that currently hold a 
communications use authorization. Of the seven small governments with 
an estimated economic impact greater than 1%, only 3 small governments 
are projected to experience an economic impact of approximately 9% to 
14% of annual salaries and wages, but they account for less than 1% of 
the estimated population of small local governmental units (cities and 
towns) within the economic impact areas of National Forests.
    The threshold RFA analysis results show that the economic impact 
from the proposed rule would be less than 0.5% of annual expenses for 
74 or 30% of the 248 small organizations known to have communications 
use authorizations. The economic impact would range from approximately 
1% to 2% of annual expenses for 138 or 56% of small organizations and 
approximately 2% to 5% of annual expenses for 33 or 13% of small 
organizations. The remaining 3 or 1% of small organizations are 
projected to experience an economic impact of approximately 5% to 11% 
of annual expenses from the proposed rule. There may be unknown small 
organizations that would be subject to the proposed rule, but the 
relatively low number of known small organizations projected to 
experience an economic impact of approximately 2% to 5% of annual 
expenses and the few organizations (estimated at 3) projected to 
experience an economic impact of approximately 5% to 11% of annual 
expenses suggest that the proposed rule would not have a significant 
economic impact on a substantial number of small organizations.
    The threshold RFA analysis results suggest that the average annual 
programmatic administrative fees under the proposed rule (i.e., its 
economic impact) would be 1% or less of annual receipts for 536 (83%) 
of the 645 small businesses that have existing communications use 
authorizations. The 536 include all small businesses with annual 
receipts of $100,000 to $500,000 (except for 7 small businesses in the 
Wireless Telecommunications industry), as well as small businesses with 
annual receipts greater than $500,000.
    Economic impacts are estimated to be 4% to 5% of annual receipts 
for the remaining 109 small businesses distributed across 65 industries 
and earning annual receipts of less than $100,000 (representing the 
smallest receipt category). For most industries, only 1 to 5 small 
businesses per industry are projected to experience economic impacts of 
4% to 5% of annual receipts. The 1 to 5 small businesses account for 8% 
to 17% of small businesses with communications use authorizations 
within each industry and less than 0.1% to 8% of the U.S. population of 
small businesses with annual receipts of less than $100,000 within each 
industry. For two industries, Telecommunications Resellers (NAICS 
517911) and Other Telecommunications (NAICS 517919), 20 and 19 small 
businesses, respectively, are estimated to experience impacts of 5%, 
accounting for 13% and 24%, respectively, of small businesses with 
communications use authorizations in these two industries and 4% and 8% 
of the U.S. small business population with annual receipts of less than 
$100,000 in these two industries.
    The programmatic efficiencies from a more modernized, efficient, 
and enhanced communications use program funded by the annual 
programmatic administrative fee would benefit small entity 
communications use authorization holders.
    For the foregoing reasons, the proposed rule would not have a 
significant economic impact on a substantial number of small entities, 
and small entities are expected to benefit indirectly from programmatic 
changes made possible by the programmatic administrative fees under the 
proposed rule. Therefore, an RFA analysis is not required for the 
proposed rule.

Federalism

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

Consultation and Coordination With Indian Tribal Governments

    The Agency has reviewed this proposed rule in accordance with the 
requirements of E.O. 13175, Consultation and Coordination with Indian 
Tribal Governments. The Agency has determined that national tribal 
consultation is not necessary for the proposed rule. The proposed rule, 
which would implement the statutory requirement to charge an annual 
programmatic administrative fee for communications use authorizations 
to cover the Agency's costs of administering its communications use 
program, is programmatic and would not have any direct effects on 
tribes. Tribal consultation will occur as appropriate in connection 
with specific applications for communications facilities on NFS lands.

Environmental Justice

    The Agency has considered the proposed rule under the requirements 
of E.O. 12898, Federal Actions to Address Environmental Justice in 
Minority Populations and Low-Income Populations. The Agency has 
determined that the proposed rule is consistent with E.O. 12898.

No Takings Implications

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

Energy Effects

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

[[Page 72546]]

energy action as defined in E.O. 13211, and OIRA has not otherwise 
designated the proposed rule as a significant energy action.

Civil Justice Reform

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

Unfunded Mandates

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

Controlling Paperwork Burdens on the Public

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

List of Subjects in 36 CFR Part 251

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

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

PART 251--LAND USES

Subpart B--Special Uses

0
1. The authority citation for part 251 continues to read:

    Authority: 16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551, 
580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1772.

0
2. Amend Sec.  251.54 by adding paragraph (g)(5)(iii) to read as 
follows:


Sec.  251.54  Proposal and application requirements and procedures.

* * * * *
    (g) * * *
    (5) * * *
    (iii) Annual programmatic administrative fee for communications use 
authorizations. An annual programmatic administrative fee shall be 
assessed for each new and existing communications use authorization as 
of [Effective date of final rule] based on the total annual estimated 
costs to the Forest Service of administering its communications use 
program, allocated as deemed applicable by the Forest Service between 
communications use authorizations for wireless uses and communications 
use authorizations for fiber optic cable and prorated as deemed 
applicable by the Forest Service among all holders of those 
authorizations. The Forest Service shall maintain a schedule in its 
directive system (36 CFR 200.4) of the annual programmatic 
administrative fee for communications use authorizations for wireless 
uses and the annual programmatic administrative fee for communications 
use authorizations for fiber optic cable. These two annual programmatic 
administrative fees shall be updated annually based on the difference 
in the U.S. Department of Labor Consumer Price Index for All Urban 
Consumers, U.S. City Average (CPI-U), from July of one year to July of 
the following year, rounded up or down to the nearest dollar. The 
Forest Service shall also enumerate in its directive system the annual 
programmatic administrative costs for which the two fees are charged. 
Within 5 years of [Effective date of final rule], and at least every 5 
years thereafter, the Forest Service shall review the amount of and 
bases for the two annual programmatic administrative fees and shall 
revise them as needed to ensure they continue to reflect the Forest 
Service's total annual estimated costs of administering its 
communications use program.

    Dated: December 16, 2021.
Meryl Harrell,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 2021-27681 Filed 12-21-21; 8:45 am]
BILLING CODE 3411-15-P