Land Uses; Special Uses; Streamlining Processing of Communications Use Applications, 19660-19666 [2020-07280]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 85, Number 68 (Wednesday, April 8, 2020)]
[Rules and Regulations]
[Pages 19660-19666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07280]


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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: Final rule.

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SUMMARY: The U.S. Department of Agriculture is issuing this final rule 
to implement the Agriculture Improvement Act of 2018, providing for 
streamlining the Agency's procedures for evaluating applications to 
locate or modify communications facilities on National Forest System 
(NFS) lands.

DATES: This rule is effective April 8, 2020.

ADDRESSES: Information on this final rule may be obtained via written 
request addressed to the Director, Lands and Realty Management, USDA 
Forest Service, 201 14th Street, Washington, DC 20250-1124 or by email 
to [email protected].

FOR FURTHER INFORMATION CONTACT: Joey Perry, Lands Staff, 707-441-3569 
or [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

    On December 20, 2018, the President signed the Agriculture 
Improvement Act of 2018 (the Farm Bill). Title VIII, Subtitle G, 
section 8705, of the Farm Bill requires the Forest Service to issue 
regulations that streamline the Agency's procedures for evaluating 
applications to locate or modify communications facilities on NFS 
lands.
    The Forest Service is responsible for managing NFS 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 services, 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

[[Page 19661]]

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), codified at 47 U.S.C. 1455(b)(3), 
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.

Summary of Public Comments and Responses

Overview

    On September 25, 2019, the Forest Service published a proposed rule 
implementing part of section 8705 in the Federal Register (84 FR 50703) 
with a 60-day comment period ending November 25, 2019. The Agency 
sought public comment on amending its regulations to implement the part 
of section 8705 providing for streamlining the Agency's procedures for 
evaluating applications to locate or modify communications facilities 
on NFS lands.
    As discussed in the Federal Register notice for the proposed rule, 
existing Forest Service regulations at 36 CFR 251.54(g) and existing 
Forest Service directives in Forest Service Handbook (FSH) 2709.11, 
Chapter 10, already implement the provisions in sections 8705(b)(1) 
through (b)(3) and (c)(4) regarding procedures for evaluating and 
granting applications for communications uses in a uniform, 
standardized manner that is competitively and technologically neutral 
and non-discriminatory and regarding streamlining evaluation of 
applications for communications uses on previously disturbed 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. In addition, the Forest Service will 
be publishing proposed revisions to its directives at FSH 2709.11, 
Chapter 90, to further implement the streamlining provisions in section 
8705. The Forest Service will publish a subsequent notice in the 
Federal Register for a proposed rule to implement section 
8705(c)(3)(B), 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 Forest Service received 8 written comments on the proposed rule 
providing for streamlining the Agency's procedures for evaluating 
applications to locate or modify communications facilities on NFS 
lands. With one exception, all respondents supported the proposed rule. 
One respondent provided comments that were outside the scope of the 
proposed rule. Comments within the scope of the proposed rule addressed 
a range of topics primarily in the following areas: the communications 
site mapping tool, communications use application tracking system, 
compliance with the National Environmental Policy Act and MOBILE NOW 
Act, communications use application and authorization process and co-
location requirements, 30-year term for communications use 
authorizations, processing fees, and technical requirements for 
communications uses.

General Comments

    Respondents generally supported the Forest Service's efforts to 
amend its regulations to streamline the application and authorization 
process for locating communications facilities on NFS lands.
    Comment: One respondent expressed appreciation of ongoing efforts 
by the Forest Service to develop an online mapping tool for 
communications sites on NFS lands.
    Response: The Department believes the online mapping tool is an 
important component of the Forest Service's communications site program 
and will provide existing authorization holders and future applicants 
with important information about areas of NFS lands that are developed 
and available for wireless communications uses. The map viewer was 
launched in October 2019 and is available at https://www.fs.usda.gov/managing-land/special-uses/commsitemapviewer.
    Comment: Several respondents recommended that the Forest Service 
implement a transparent, web-based filing, tracking, monitoring, and 
reporting platform for applications to locate or modify communications 
facilities on NFS lands. One respondent suggested that this type of 
system would further partnerships and collaboration with the Forest 
Service and would establish clear expectations regarding meeting the 
timeframe for granting or denying a communications use application 
under the MOBILE NOW Act.
    Response: The Department agrees that a web-based filing, tracking, 
monitoring, and reporting tool would help the Forest Service deliver 
the level of customer service that the Agency strives to provide. The 
Forest Service has undertaken modernization efforts of its entire 
special uses program, which includes communications uses. The Forest 
Service has implemented an e-permitting pilot for two of the less 
complex types of special uses. Implementation of e-permitting for 
communications uses is under consideration. The e-permitting portal 
would allow for a proponent to file a proposal and track its progress 
through acceptance as an application. The Forest Service is committed 
to developing a more robust web-based system. However, with its current 
program funding levels and staffing shortage, the Agency is constrained 
by the limited ability of its existing internal database. The Forest 
Service has developed an internal report for tracking the status of 
communications use applications and will utilize the report at all 
levels of the Agency to ensure the requirements of section 8705 of the 
Farm Bill are met.
    Comment: One respondent commented on the difference between the 
phrase, ``receipt of a duly filed application,'' in the MOBILE NOW Act 
versus the phrase, ``acceptance of a proposal as an application for a 
new communications facility,'' in the proposed rule. The respondent 
expressed concern that adding the phrase, ``acceptance of a proposal,'' 
to the regulation could delay the start of processing and frustrate the 
congressional purpose for the processing timeline. Additionally, the 
respondent raised concerns about some national forests having an ``open

[[Page 19662]]

season'' during which they allow special use proposals to be submitted 
and then determine which proposals to accept as applications. This 
respondent stated that in order to prevent this practice from being 
applied to communications use applications, the phrase ``acceptance of 
a proposal'' should be replaced with the phrase ``receipt of an 
application.'' The respondent further stated that it was unclear what 
is required for a proposal to be accepted as an application. The 
respondent stated that if the ``acceptance of a proposal'' language is 
included in the final rule, the rule should provide guidance regarding 
the requirements for acceptance of a proposal and the requirements for 
the content of an application. Another respondent suggested that the 
Forest Service adopt an initial timeframe for reviewing an application 
and advise the applicant if additional information is necessary. The 
respondent recommended a 30-day timeframe for that purpose.
    Response: The MOBILE NOW Act requires Federal agencies within 270 
days of receipt of an application for a communications facility or a 
communications use to grant or deny the application and notify the 
applicant of the grant or denial. The Department is integrating the 
270-day timeframe for responding to applications for communications 
facilities and communications uses with the requirements in the Forest 
Service's regulations and directives governing special use proposals 
and applications. In accordance with Forest Service regulations and 
directives at 36 CFR 251.54(g) and Forest Service Handbook (FSH) 
2709.11, Chapter 10, section 11.22, paragraph 1, and section 11.24, a 
special use proposal is not accepted as an application until it passes 
initial and second-level screening. The initial and second-level 
screening criteria are found at 36 CFR 251.54(e)(1) and (5) and FSH 
2709.11, Chapter 10, sections 12.21 and 12.32. The 270-day timeframe 
will begin upon acceptance of an application for a proposed 
communications facility or proposed communications use in accordance 
with 36 CFR 251.54(g)(1). The 270-day timeframe is also triggered upon 
receipt of proposals for modifications to existing communications 
facilities under 36 CFR 251.61 and applications for a new authorization 
for existing communications facilities under 36 CFR 251.64(b). These 
proposals are not subject to initial and second-level screening and are 
immediately accepted as applications upon submission. However, these 
proposals must meet the requirements in FSH 2709.11, Chapter 10, 
section 11.2, paragraph 2.
    Existing Forest Service directives at FSH 2709.11, Chapter 10, 
section 12.12, state that the authorized officer must, within 60 
calendar days of receipt of a proposal, review the proposal and advise 
the proponent as to whether the Forest Service will accept the proposal 
as a formal application or deny the proposal based on initial or 
second-level screening criteria. The 60-day review period does not 
include periods in which the authorized officer is waiting for 
additional information from the proponent or a governmental entity that 
is needed to complete review of a proposal. The 60-day period may be 
extended in rare situations involving complex proposals. The Forest 
Service's existing regulations and directives comply with congressional 
intent by providing a uniform and standard process for reviewing 
proposals, accepting applications, and authorizing the use and 
occupancy of NFS lands. With certain exceptions, such as when an 
opportunity is competitively offered through issuance of a prospectus, 
the Forest Service does not condone restricting acceptance of proposals 
for use and occupancy of NFS lands to specified time periods. Unless 
subject to these exceptions, a proposal for use and occupancy of NFS 
lands may be submitted at any time.
    Existing Forest Service regulations at 36 CFR 251.54(a) require 
those proposing a use or occupancy of NFS lands, including proposed 
communications uses, to contact the Forest Service office responsible 
for management of the affected lands as early as possible. This pre-
proposal meeting gives the Forest Service an opportunity to discuss the 
proposed use or occupancy with the proponent and any initial concerns 
the Agency may have or requirements the proponent should be aware of. 
Existing Forest Service regulations at 36 CFR 251.54(d) specify 
requirements and procedures for special use proposals, such as the 
proponent's technical and financial capability and a project 
description. In addition, existing Forest Service regulations at 36 CFR 
251.54(e)(3) specify that for proposed uses that meet the minimum 
requirements, the authorized officer is required, to the extent 
practicable, to provide further guidance and information, such as 
possible land use conflicts, application procedures, applicable 
processing and monitoring fees, other permit or clearance requirements, 
environmental and management considerations, and other special 
conditions. Furthermore, existing Forest Service regulations at 36 CFR 
251.54(g) provide direction for acceptance and processing of special 
use applications, including applications for communications uses.
    Forest Service regulations at 36 CFR 251.58(c)(7) and Forest 
Service directives at FSH 2709.11, Chapter 20, section 21.11d, 
establish customer service standards for processing special use 
applications, including applications for communications facilities and 
uses, that are subject to processing fees. Specifically, for 
applications that take 50 hours or less to process and that are subject 
to a categorical exclusion from documentation in an environmental 
assessment (EA) or environmental impact statement (EIS), the Forest 
Service endeavors to process the application within 60 calendar days of 
the date of receipt of the processing fee. If the application cannot be 
processed within that 60-day period, the authorized officer must notify 
the applicant in writing prior to the 30th calendar day of that period 
of the reasons for the delay and a projected date for completion of 
processing. For all other applications, including those that require an 
EA or an EIS, the authorized officer must, within 60 calendar days of 
acceptance of the application, notify the applicant in writing of the 
anticipated steps that will be needed to process the application.
    Comment: Several respondents supported the standard 30-year term 
for communications use authorizations. Multiple respondents stressed 
the importance of the standard 30-year term for providing greater long-
term certainty and greater incentive to invest at communications sites. 
One respondent requested more information on when a shorter term would 
be warranted. Additionally, one respondent recommended that the Forest 
Service also provide for automatic renewal of communications use 
authorizations every 10 years.
    Response: The Department agrees that the standard 30-year term for 
communications use authorizations will provide greater long-term 
certainty for those constructing, operating, and maintaining 
communications facilities on NFS lands; may provide greater incentive 
to invest at communications sites on NFS lands; and may facilitate 
lending for improvements at communications sites on NFS lands. The 
standard 30-year term for communications use authorizations will also 
reduce the backlog of expired authorizations and workload on Forest 
Service personnel, since communications use authorizations will be 
issued less frequently.

[[Page 19663]]

    Forest Service authorized officers will retain the authority to 
issue a communications use authorization for less than 30 years. These 
situations should be infrequent and should be based on documented case-
specific circumstances that warrant a shorter term, such as when a 
decision has been made to convert the area where a communications 
facility is located to a higher public purpose or when a communications 
facility or use is needed only for a limited period.
    Forest Service communications use authorizations expire at the end 
of their term and are not renewable. To replace an expiring 
authorization, an application for a new authorization must be submitted 
in accordance with the terms and conditions of the existing 
authorization. Requiring submission of an application for a new 
authorization upon expiration provides an opportunity for the 
authorized officer to make a determination as to whether the use and 
occupancy to be authorized by the new authorization are still 
consistent with the standards and guidelines in the applicable land 
management plan, are still being utilized as originally authorized, and 
are being operated and maintained in accordance with all the provisions 
of the authorization, per existing Forest Service regulations at 36 CFR 
251.64. Additionally, the authorized officer may prescribe new terms 
and conditions when the new authorization is issued, per 36 CFR 251.64. 
Having the ability to make these assessments and include new terms and 
conditions as needed are critical management tools for the Forest 
Service that strengthen the Agency's ability to effectively manage NFS 
lands.
    Comment: One respondent requested clarification on the amount of 
processing fees a governmental agency must pay when applying for a 
special use authorization for a communications facility or a 
communications use.
    Response: Section 8705(c)(3) of the Farm Bill requires the 
Department to issue regulations that include a structure of fees for 
submitting a communications use application based on the cost to the 
Forest Service of considering that type of application and issuing 
communications use authorizations based on the cost to the Forest 
Service of any maintenance or other activities required to be performed 
by the Forest Service as a result of the location or modification of 
the communications facility.
    The statutory requirements in section 8705(c)(3) are reflected in 
Sec.  251.58(c) of the Forest Service's existing regulations and FSH 
2709.11, Chapter 20, of the Agency's existing directives, which 
establish procedures for assessing processing fees to recover the 
Agency's costs incurred in evaluating special use applications and 
issuing special use authorizations, including communications use 
applications and authorizations. State, local, and tribal governmental 
entities are not exempt from paying processing and monitoring fees. As 
noted in 36 CFR 251.58(g), Federal agencies are exempt from cost 
recovery fees only if they are applying for or conducting a use or 
activity that is not authorized by the Federal Land Policy and 
Management Act (FLPMA) or the Mineral Leasing Act (MLA). Federal agency 
applications and authorizations for uses and activities authorized by 
FLMPA or the MLA are subject to processing and monitoring fees. 
Communications uses are authorized under FLPMA. Therefore, Federal 
agencies are not exempt from processing fees for communications uses.
    The Forest Service will publish a subsequent notice of a proposed 
rule in the Federal Register to implement the programmatic 
administrative fee as required by section 8705(c)(3)(A) of the Farm 
Bill.
    Comment: One respondent suggested that the Forest Service consider 
implementing a reasonable timeframe for completing documentation of a 
categorical exclusion for special use authorizations. Another 
respondent believed there were citation errors in the proposed rule for 
communications facilities and uses, specifically, in the citations to 
the expanded and new categorical exclusions for special use 
authorizations.
    Response: The Forest Service is committed to the goals of making 
project decisions in a timely manner and improving or eliminating 
inefficient processes. The proposed new categorical exclusion for 
special use authorizations, to be codified at 36 CFR 220.5(d)(11), 
would not require a project or case file and decision memo, so the 
Forest Service anticipates that its review for this categorical 
exclusion would be conducted expeditiously to the extent permitted by 
the circumstances of the proposed use. Although a project or case file 
and decision memo are required for the proposed expanded categorical 
exclusion for special use authorizations, to be codified at 36 CFR 
220.5(e)(3), the Agency anticipates that reviews for this categorical 
exclusion also typically could be conducted expeditiously to the extent 
permitted by the circumstances of the proposed use.
    The proposed NEPA regulations would re-codify the existing 
categorical exclusion sections at 36 CFR 220.6(d) and (e) as 36 CFR 
220.5(d) and (e). Therefore, under the proposed NEPA regulations, the 
new categorical exclusion under paragraph (d) would be codified at 36 
CFR 220.5(d)(11), and the existing categorical exclusion at 36 CFR 
220.6(e)(3) would be re-codified at 36 CFR 220.5(e)(3). The proposed 
rule on streamlining processing of communications use applications 
incorrectly cited the existing categorical exclusion for special use 
authorizations as 36 CFR 220.5(e)(3). The correct citation to the 
existing categorical exclusion is 36 CFR 220.6(e)(3).
    Comment: Several respondents commented on the timeframe in the 
MOBILE NOW Act for the Forest Service to grant or deny an application 
for a communications facility or a communications use and to notify the 
applicant of the grant or denial. One respondent stated that the Forest 
Service should ensure the MOBILE NOW Act requirements are applied to 
applications that are pending as of the effective date of the final 
rule, as well as to applications that are submitted after the effective 
date of the final rule. The same respondent recommended that the final 
rule provide that failure to meet the 270-day timeframe would result in 
the application being deemed granted. Additionally, the respondent 
suggested that the Department evaluate internal procedures to determine 
if a timeframe shorter than 270 days could be implemented.
    Response: The Forest Service implemented the requirements of the 
MOBILE NOW Act on August 13, 2018, shortly after enactment of the act 
on March 22, 2018. Therefore, the requirements of the act have been 
implemented during this entire rulemaking. The Forest Service is 
reinforcing its directives by incorporating the MOBILE NOW Act 
requirements into the Agency's regulations. In implementing the MOBILE 
NOW Act, the Forest Service evaluated its internal procedures and 
determined that the full 270-day timeframe provided for in the act is 
reasonable and necessary to complete the requisite environmental 
analysis. The Forest Service anticipates meeting the 270-day timeframe. 
Therefore, there is no need for the final rule to specify a consequence 
for not meeting the timeframe.
    Comment: One respondent recommended an expedited process for 
evaluating requests to co-locate new communications uses on or in 
existing communications facilities. The respondent specifically 
identified the Federal Communications Commission (FCC)'s 60-day 
requirement for processing co-location applications. One

[[Page 19664]]

respondent opposed requiring co-location of new communications uses on 
or in existing communications facilities.
    Response: The Forest Service defines co-location as the 
installation of telecommunications equipment in or on an existing 
communications facility or other structure. FSH 2709.11, Ch. 90, sec. 
90.5. Co-location in or on an existing communications facility does not 
require a separate communications use authorization from the Forest 
Service, provided the proposed use is consistent with the 
communications site management plan and compatible with all existing 
uses at the communications site. FSH 2709.11, Ch. 90, sec. 94.1, para. 
1. Existing Forest Service directives at FSH 2709.11, Chapter 90, 
section 94.1, paragraph 4, give authorization holders at a 
communications site 30 days to provide the authorized officer with 
documentation that the proposed use would cause harmful interference 
with their communications uses. Upon completion of coordination with 
the Forest Service and existing authorization holders and mitigation of 
any concerns, the proponent may proceed with installation of equipment. 
The Forest Service will be publishing proposed directives for public 
comment that would expedite requests to co-locate communications uses 
in or on existing communications facilities.
    The Forest Service has no plans to modify its existing directives 
governing when co-location is appropriate. The Forest Service's 
existing directives encourage, rather than require, co-location of new 
communications uses on or in existing communications facilities. 
Regardless, the Department notes that proponents should be prepared to 
justify the need for new communications facilities. With the advent of 
recent technological advancements, especially digital transition 
switchover, many communications facilities on NFS lands are 
underutilized. Existing authorization holders should make excess space 
on or in their communications facilities available at a competitive 
rate for new communications uses if they can reasonably be 
accommodated.
    Comment: One respondent stated that the Forest Service should avoid 
imposing new requirements regarding intermodulation analysis and other 
technical issues on communications use authorization holders; should 
continue to rely on the FCC's and National Telecommunications and 
Information Administration (NTIA)'s technical rules related to 
interference and other issues, as appropriate, as these agencies are 
best positioned to take the lead in the development and enforcement of 
technical rules for communications facilities; and should not create 
duplicative requirements that could create uncertainty for 
communications providers deploying services on NFS lands.
    Response: The Department agrees that the FCC and NTIA have 
statutory and regulatory authority for spectrum management and 
enforcement of spectrum license or authorization requirements. However, 
the Forest Service has statutory and regulatory authority for managing 
use and occupancy of NFS lands and is responsible for ensuring 
compliance with laws, regulations, and directives applicable to 
management of those lands. For wireless communications uses, it is the 
Forest Service's responsibility to facilitate orderly development of 
communications sites in a high-quality communications environment while 
addressing safety and environmental concerns. These goals are 
accomplished by establishing management requirements in the 
communications use authorization and applicable communications site 
management plan and ensuring that all authorization holders comply with 
the requirements. The Forest Service will continue to exercise its 
authority to manage use and occupancy of NFS lands for communications 
uses.
    Comment: A respondent recommended that the proposed rule address 
beam paths, specifically, how owners of communications facilities 
obtain authorization to keep beam paths on NFS lands clear of 
vegetation or structures, including when the communications use is not 
on NFS lands, but the beam path crosses NFS lands.
    Response: The Department recognizes the importance of maintaining 
beam paths. Routine trimming or minimal vegetation removal for beam 
path maintenance associated with communications uses on NFS lands is 
considered routine maintenance, which may be authorized under the 
corresponding communications use authorization. Routine vegetation 
management to maintain beam paths that cross NFS lands for 
communications uses off NFS lands would require a separate special use 
authorization.
    Comment: One respondent suggested that the Forest Service engage 
with all stakeholders at a communications site before implementing a 
new or modified communications site management plan for the site. The 
respondent also recommended that the Agency implement a 30-day period 
for stakeholders to review a new or modified communications site 
management plan for the site.
    Response: The Department does not believe that the Forest Service 
should engage with all users at a communications site before 
implementing a new or modified communications site management plan for 
the site. It is the responsibility of authorization holders at a 
communications site to ensure their occupants' comments or concerns are 
brought to the attention of the Forest Service. The Forest Service has 
no legal relationship with the occupants co-located in or on 
communications facilities that are owned by private or other 
governmental entities. The Department believes that the Forest Service 
should engage with existing authorization holders at a communications 
site when developing a new communications site management plan or 
modifying an existing communications site management plan that would 
change how the site is managed. The Forest Service will consider 
comments and concerns from users co-located in or on communications 
facilities that are owned by private or other governmental entities 
that are submitted through an authorization holder at the site 
regarding development of a new communications site management plan or 
modification of an existing communications site management plan that 
would change how the site is managed. The Department agrees that the 
Forest Service should provide for a 30-day period for authorization 
holders at a communications site to review a new communications site 
management plan or modified communications site management plan that 
would change how the site is managed. Communications site management 
plans are an important component of a communications use authorization. 
They promote effective administration of the communications site by 
delineating the types of uses that are appropriate for the site and the 
technical and administrative requirements for management of the site. 
In addition, communications site management plans provide direction for 
day-to-day operations, including requirements for new construction, 
modification of existing facilities, equipment standards, special 
environmental considerations, and access. Although it has been standard 
Forest Service practice to coordinate the development of new 
communications site management plans with existing

[[Page 19665]]

authorization holders at the site, Forest Service directives do not 
address this practice. The Forest Service will be publishing proposed 
directives for public comment that would require the authorized officer 
to give existing authorization holders at a communications site 30 days 
to review new communications site management plans and modifications to 
existing communications site management plans that would change how the 
site is managed. Communications use authorization holders remain 
responsible for coordinating the requirements of the applicable 
communications site management plan with occupants in or on their 
communications facilities.

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 final rule is not significant.

Executive Order 13771

    This final 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 final rule as not a major rule as defined by 5 
U.S.C. 804(2).

National Environmental Policy Act

    The final rule will 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 Department has 
concluded that this final 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

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

Federalism

    The Department has considered the final rule under the requirements 
of E.O. 13132, Federalism. The Department has determined that the final 
rule conforms with the federalism principles set out in this executive 
order; will not impose any compliance costs on the states; and will 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 Department has concluded that the final rule does not 
have Federalism implications.

Consultation With Tribal Governments

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

No Takings Implications

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

Energy Effects

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

Civil Justice Reform

    The Department has analyzed the final rule in accordance with the 
principles and criteria in E.O. 12988, Civil Justice Reform. Upon 
publication of the final rule, (1) all state and local laws and 
regulations that conflict with the final rule or that impede its full 
implementation will be preempted; (2) no retroactive effect will be 
given to this final rule; and (3) it will 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 Department 
has assessed the effects of the final rule on state, local, and tribal 
governments and the private sector. The final rule will 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 final 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 is amending 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, subpart B, 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, 1761-1771.

0
2. In Sec.  251.54, revise paragraphs (g)(4) and (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

[[Page 19666]]

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 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.

James E. Hubbard,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2020-07280 Filed 4-7-20; 8:45 am]
 BILLING CODE 3411-15-P