[Federal Register Volume 64, Number 226 (Wednesday, November 24, 1999)]
[Proposed Rules]
[Pages 66342-66353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30587]



[[Page 66341]]

_______________________________________________________________________

Part IV





Department of Agriculture





_______________________________________________________________________



Forest Service



_______________________________________________________________________



36 CFR Part 251



Land Uses; Special Uses; Recovery of Costs for Processing Special Use 
Applications and Monitoring Compliance With Special Use Authorizations; 
Proposed Rule

  Federal Register / Vol. 64, No. 226 / Wednesday, November 24, 1999 / 
Proposed Rules  

[[Page 66342]]



DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 251

RIN 0596-AB36


Land Uses; Special Uses; Recovery of Costs for Processing Special 
Use Applications and Monitoring Compliance with Special Use 
Authorizations

AGENCY: Forest Service, USDA.

ACTION: Proposed rule; request for public comment.

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

SUMMARY: The Forest Service proposes to promulgate regulations for 
recovering costs associated with processing applications for special 
use authorizations to use and occupy National Forest System lands and 
monitoring compliance with these special use authorizations. The 
provisions of this proposed rule would apply to applications and 
authorizations for use of National Forest System lands, including 
situations in which the land use fee may be waived or exempted, such as 
facilities financed or eligible to be financed with a loan pursuant to 
the Rural Electrification Act of 1936 and applications and 
authorizations involving Federal, State, and local government entities. 
The provisions of this proposed rule would not apply to applications 
and authorizations for noncommercial group uses and other uses 
specifically exempted. In addition, the provisions of this proposed 
rule would not apply to those applications or authorizations for which 
processing and/or monitoring fees already are being collected by 
another Federal agency on behalf of the Forest Service. Public comment 
is invited and will be considered in development of the final rule.


DATES: Comments must be received in writing by January 24, 2000.

ADDRESSES: Send written comments to Director, Lands Staff, 2720, 4th 
Floor-South, Sidney R. Yates Federal Building, Forest Service, USDA, 
P.O. Box 96090, Washington, D.C. 20090-6090. Submit electronic comments 
(as an ASCII file if possible) to: gtlands4/[email protected]. Refer to the 
SUPPLEMENTARY INFORMATION: Section for further information on written 
comments and electronic filing. All comments, including names and 
addresses when provided, are placed in the record and are available for 
public inspection and copying.
    The public may inspect comments received on this proposed rule in 
the Office of the Director, Lands Staff, 4th Floor-South, Sidney R. 
Yates Federal Building, 14th Street and Independence Avenue, SW, 
Washington, D.C., between the hours of 8:30 a.m. and 4:30 p.m. on 
business days. Those wishing to inspect comments are encouraged to call 
ahead at (202) 205-1256 to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT: Randy Karstaedt, Lands Staff, (202) 
205-1256 or Alice Carlton, Recreation, Heritage, and Wilderness 
Resources Staff, (202) 205-1145.

SUPPLEMENTARY INFORMATION:
1. Electronic Access and Filing
2. Written Comments
3. Interagency Coordination
4. Background
5. Analysis of Proposed Rule
6. Regulatory Requirements

1. Electronic Access and Filing

    You may view an electronic version of this proposed rule at the 
Forest Service Internet home page at: http://www.fs.fed.us/recreation/
permits/. You may also comment via the Internet to: gtlands4/
[email protected]. If you submit comments electronically, please submit 
them, if possible, as an ASCII text file to minimize computer problems 
and include your name and return mailing address in your Internet 
message.

2. Written Comments

    Please confine written comments to issues pertinent to the proposed 
rule and explain the reasons for any recommended changes. Where 
possible, reference the specific section or paragraph you are 
addressing. The Forest Service may not include in the administrative 
record for the proposed rule those comments it receives after the 
comment period closes (see DATES) or comments delivered to an address 
other than those listed in ADDRESSES. All comments, including the 
names, street addresses, and other contact information about 
respondents will be available for public review at the above address 
during regular business hours (8:30 a.m. to 4:30 p.m.), Monday through 
Friday, except holidays. Those wishing to inspect comments are 
encouraged to call ahead, (202) 205-1256, to facilitate access to the 
building.

3. Interagency Coordination

    The United States Department of the Interior, Bureau of Land 
Management (BLM), recently proposed revisions to its cost recovery 
procedures, policies, and fees for processing and administering rights-
of-way at 43 CFR parts 2800 and 2808 (64 FR 32105, June 15, 1999). To 
the extent possible, the Forest Service is proposing to adopt 
procedures, policies, and fee schedules for cost recovery related to 
special use applications and authorizations consistent with BLM's rule. 
In addition to considering comments in response to its proposed rule, 
the Forest Service will consider comments received in response to BLM's 
proposed rule in developing the final Forest Service rule. Promulgation 
of consistent cost recovery regulations and adoption of the same fees 
by the Forest Service and BLM will benefit both agencies and the 
public, particularly those who need or already hold an authorization to 
use and occupy Federal lands administered by both agencies.

4. Background

    The Forest Service proposes to issue regulations concerning the 
recovery of costs for processing applications for special use 
authorizations issued pursuant to 36 CFR part 251, subpart B, and 
monitoring compliance with these authorizations. Approximately 74,000 
special use authorizations are in effect on National Forest System 
lands. These uses cover a variety of activities, ranging from 
individual private uses to large-scale commercial facilities, and 
public services. Examples of authorized land uses include road rights-
of-way serving private residences, apiaries, domestic water supply 
conveyance systems, telephone and electric service rights-of-way, oil 
and gas pipeline rights-of-way, hydroelectric power generating 
facilities, ski areas, resorts, marinas, municipal sewage treatment 
plants, and public parks and playgrounds. The agency receives about 
6,000 applications for special use authorizations each year. These 
applications are subjected to a rigorous decisionmaking process in 
determining whether to approve or reject them. In 1998, the Forest 
Service adopted a final rule at 36 CFR part 251, subpart B, 
streamlining and extensively revising the agency's application process 
and administration of special use authorizations (63 FR 65949, November 
30, 1998).
    There are 14 statutes authorizing special uses on National Forest 
System lands. These authorities, which are listed at 36 CFR 251.53, 
include statutes of broad application, such as the Mineral Leasing Act 
of 1920, the Federal Land Policy and Management Act of 1976, and the 
Bankhead-Jones Farm Tenant Act of 1937, as well as statutes focusing on 
a specific use of Federal lands, such as the National Forest Ski Area 
Permit Act. The basic authority of the Secretary of Agriculture to 
regulate the occupancy and use of National

[[Page 66343]]

Forest System lands is the Act of June 4, 1897 (16 U.S.C. 551).
    Additionally, the Independent Offices Appropriations Act of 1952, 
as amended (IOAA; 31 U.S.C. 9701), and the Office of Management and 
Budget (OMB) Circular No. A-25 require holders of authorizations to pay 
for the use of the Federal land. The Federal Land Policy and Management 
Act requires holders of rights-of-way authorizations to pay annually, 
in advance, the fair market value of the use of the Federal land and 
its resources. The Federal Land Policy and Management Act also provides 
that fees may be waived, in whole or in part, under specified 
conditions when equitable and in the public interest.
    Requirements of the National Environmental Policy Act, the 
Wilderness Act of 1964, the Endangered Species Act, the Archaeological 
Resources Protection Act of 1979, additional requirements of the 
Federal Land Policy and Management Act of 1976, and Executive Order 
Nos. 11998 (Floodplains) and 11990 (Wetlands) also bear directly on the 
issuance of special use authorizations. These directives and statutory 
authorities require extensive analysis and documentation of the impacts 
of use and occupancy on a wide array of environmental, cultural, and 
historical resources. The practical effect of these requirements has 
been to lengthen the time required and increase the cost associated in 
processing applications for authorizations for new uses and for 
existing uses. The time and cost impacts weigh on both the Forest 
Service and the applicants and holders of authorizations. The 
significance of these impacts has been a principal factor in the 
development of this proposed cost recovery rule. These impacts also 
were a major factor in the previous development of the agency's final 
rule at 36 CFR part 251, subpart B, streamlining its special uses 
application process and administration of special use authorizations 
(63 FR 65949, November 30, 1998).
    With limited funds, staffing, and other resources to manage its 
special uses program, the agency has found it increasingly difficult to 
provide timely reviews and evaluations of special use applications 
using appropriated funds. It is also difficult for the agency to ensure 
authorized facilities are constructed and operated in compliance with 
existing special use authorizations. The agency has a significant 
backlog of special use applications to which it has been unable to 
respond in a manner that satisfies the needs and expectations of 
special use applicants.
    The agency has been able to provide timely responses to those 
applicants who have voluntarily offered to fund agency costs to review 
and process their applications for a particular proposed use and 
occupancy. However, without the appropriate regulatory authority, there 
is no means of requiring an applicant to pay for the agency's costs of 
processing applications and monitoring compliance with authorizations.
    The IOAA authorizes all agencies of the Federal Government to 
recover costs associated with providing goods and services that benefit 
an identifiable recipient. This provision applies to costs incurred by 
the Forest Service in processing special use applications and 
monitoring compliance with special use authorizations. Charges imposed 
under the authority of the IOAA must, among other requirements, be fair 
and must be based on the costs to the Federal Government and the value 
of the goods or services to the recipient.
    Government-wide direction for implementing the cost recovery 
provisions of the IOAA is in OMB Circular No. A-25. Section 7 of this 
circular directs that user charges be instituted through the 
promulgation of agency regulations. Adoption of this proposed rule 
would comply with the requirements of OMB Circular No. A-25.
    In the past 10 years, the U.S. General Accounting Office (GAO) and 
the U.S. Department of Agriculture's Office of Inspector General have 
conducted more than 15 reviews or audits of various aspects of the 
Forest Service's special uses program. Two of the more recent audits, 
GAO Report #RCED-96-84 (April 1996) and GAO Report #RCED-97-16 
(December 1996), recommended that the Forest Service (1) Operate its 
special uses program in a more cost-efficient and businesslike manner 
and (2) Promulgate regulations to allow the agency to exercise existing 
statutory authorities to recover from applicants and holders the 
agency's costs to process special use applications and monitor 
compliance with special use authorizations.
    In April 1997, the Forest Service completed a reengineering study 
of its special uses program. The study identified changes needed to 
manage the program in a more businesslike and customer-service-oriented 
manner. The study also cited the need for regulations enabling the 
agency to exercise its existing cost recovery authorities. Recovery of 
processing and monitoring costs would provide additional funding for 
the agency to respond more promptly to special use applications, to 
monitor compliance with authorizations more effectively, and to satisfy 
the needs and expectations of applicants and holders.
    The Forest Service would use the processing and monitoring fees 
paid by applicants to fund the time that the agency spends on the 
decisionmaking process in response to applications for the use and 
occupancy of National Forest System lands; to prepare and issue special 
use authorizations in those cases where the agency decides to authorize 
the proposed use and occupancy; and to monitor compliance with the 
terms and conditions of special use authorizations.
    An applicant would also be assessed a processing fee for agency 
costs to conduct an environmental analysis and prepare associated 
documentation as required by the National Environmental Policy Act. 
These tasks are the applicant's responsibility as provided in 36 CFR 
251.54. The processing fee would be commensurate with the agency's time 
and expense in processing each application, and would include the 
collection of all data and information needed for the agency to (1) 
Fully describe the proposed use; (2) Identify and evaluate the 
environmental effects of the proposed use; and (3) Make a decision in 
response to the application. Applicants would be encouraged to fulfill 
these responsibilities from sources other than limited agency personnel 
and resources to maintain the agency's ability to process applications 
in as efficient and timely a manner as possible. Application processing 
tasks completed by the applicant or a third party would reduce the 
amount of time the Forest Service spends on each case, thereby reducing 
the processing fee assessed to the applicant.
    The proposed rule would require an applicant or holder to pay a 
processing fee and, where applicable, a monitoring fee. The proposed 
rule would establish categories to be assigned on a case-by-case basis 
to the processing of each special use application and to the monitoring 
of compliance with each authorization. These categories would be based 
on the estimated number of hours that agency personnel would spend in 
conducting activities directly related to processing an application and 
monitoring compliance with an authorization.
    Except as specifically exempted, the processing fee provisions of 
this proposed rule would apply to (1) All special use proposals 
accepted as applications on or after the effective date of this rule; 
(2) All special use proposals accepted as applications before the 
effective date of this rule, but for which the agency has not yet 
issued an authorization; (3) Existing

[[Page 66344]]

authorizations when the holder requests and receives authorization to 
construct new facilities or reconstruct existing facilities (either 
through an amendment to an existing authorization or through agency 
approval, pursuant to a master development plan or operating plan); (4) 
New authorizations to be processed and issued due to termination of 
existing authorizations; and (5) New authorizations needed due to a 
change in ownership or control of facilities under an existing 
authorization.
    Except as specifically exempted, the monitoring fee provisions of 
this proposed rule would apply to the agency's time needed for 
monitoring compliance of all authorizations issued on or after the 
effective date of the final rule. Monitoring is defined in the proposed 
rule at 36 CFR 251.51 as the actions needed to ensure compliance with 
special use authorizations during construction or reconstruction of 
facilities, as well as inspections of facilities and authorized 
activities to ensure compliance with a special use authorization. As 
defined in the proposed rule, monitoring would not include routine 
administrative actions, such as billings or maintenance of case files, 
and fees would not be assessed in any categories for such actions. For 
categories B-1 through B-III only, monitoring fees would not be 
assessed for the time associated with cumulative multi-year annual or 
periodic on-site inspections.
    The cost recovery provisions of this rule would not apply to 
applications or authorizations issued for noncommercial group uses (36 
CFR 251.54). The cost recovery provisions of this rule also would not 
apply to activities otherwise prohibited by a closure order, except for 
access to non-Federal land within the National Forest System granted 
pursuant to section 1323(a) of the Alaska National Interest Lands 
Conservation Act (ANILCA) (16 U.S.C. 3210(a)). These exemptions are 
necessary to address legal concerns associated with the exercise of 
First Amendment rights.
    Fees would be assessed for several categories of activities. 
Category A for ``minimal impact'' processing or ``no monitoring'' and 
the processing and monitoring categories B-I through B-III would apply 
to those cases requiring no more than 50 hours of agency time to 
process or monitor. A one-time flat fee would be assessed for the 
agency's processing and monitoring fees in each of these categories. 
Category B-IV would apply to more complex applications and 
authorizations requiring more than 50 hours of agency time to process 
or monitor. Category C applies when master agreements are established 
for processing.
    Fees for processing applications in categories A and B-I through B-
IV would be based on the full actual costs of applications for 
authorizations issued under the Mineral Leasing Act and on the full 
reasonable costs of applications for authorizations issued under other 
authorities; these processing fees would be determined on a case-by-
case basis.
    A one-time monitoring fee would be assessed for categories B-I 
through B-II, based on the time needed for inspections during the 
construction or reconstruction period, plus the time needed for 
inspections of authorized facilities and operations during one calendar 
year. Fees for monitoring category B-IV would be based on the full 
actual costs for authorizations issued under the Mineral Leasing Act 
and on the full reasonable costs for authorizations issued under other 
authorities; these monitoring fees would be determined on a case-by-
case basis.
    The fees collected to recover costs for processing applications and 
monitoring compliance with authorizations under the proposed rule would 
be in addition to land use rental fees assessed and collected based on 
the fair market value of the rights and privileges granted by each 
authorization. These fee schedules are set out in the Forest Service 
directive system in chapter 30 of Forest Service Handbook (FSH) 
2709.11, Special Uses Handbook.
    Upon acceptance of each special use application, the authorized 
officer would determine the category for the processing fee or, in the 
case of a category B-IV proposal, would estimate a case-specific 
processing fee for that application. This fee would be due before the 
Forest Service processes an accepted application. If the proposed use 
is approved by the authorized officer, a monitoring fee for the 
authorization would be determined using the established monitoring fee 
rate by category (or estimated on a case-specific basis for category B-
IV authorizations). The monitoring fee would be due before or at the 
same time the authorization is issued.
    The agency's experience with its management of more than 74,000 
current special use authorizations indicates that the cost to process a 
special use application for a proposed use or occupancy frequently has 
no relationship to the cost to monitor the construction and/or 
implementation of that use or occupancy following issuance of the 
authorization. Applications that can be time consuming to process may 
require little to no time (or cost) for the agency to monitor, or vice 
versa. Therefore, the agency proposes that the processing fee category 
and amount for each case would be determined independently of the 
monitoring fee category and amount; that is, the processing fee charged 
for any given application would not dictate the corresponding 
monitoring fee category or amount.
    The recovery of costs from applicants and holders would give the 
agency the resources to provide more efficient and timely responses to 
applications for new uses and to applications for changes or additions 
to existing authorized uses and occupancies. Similarly, cost recovery 
also would increase the Forest Service's ability to monitor on-site 
activities to adequately protect National Forest System lands and 
resources, in accordance with the terms and conditions of special use 
authorizations.
    This proposed Forest Service cost recovery rule is consistent with 
the IOAA and a variety of subsequent statutes that authorize the use 
and occupancy of National Forest System lands. The IOAA provides that 
Federal agencies should recover the costs they incur in providing a 
specific benefit or service to identifiable recipients beyond those 
provided to the general public. The Forest Service's processing of a 
special use application provides a special benefit and service to 
applicants for new authorizations and to those proposing modifications 
to existing authorizations. The service and benefit provided consist of 
the agency's review and consideration of requests to use and occupy 
National Forest System lands. Likewise, monitoring, as defined at 36 
CFR 251.51 of the proposed rule, provides a special benefit to holders 
of special use authorizations that is not available to the general 
public in the form of actions necessary to ensure that the construction 
or reconstruction of facilities and the authorized activities comply 
with the terms and conditions of the authorization. This proposed rule 
would provide the process by which recipients may pay for such 
Governmental benefits and services.
    Upon final adoption, this rule as proposed would not provide the 
agency with the authority to retain and spend any of the funds 
collected. The agency's retention and expenditure of the fees that 
would be assessed and collected pursuant to this proposed rule would 
need to be authorized by Congress. The Forest Service proposes to seek 
such authority in conjunction with final adoption of this proposed 
rule. Doing so would maximize agency responsiveness to applicants and 
holders by making the funds deposited by them available for the agency 
to use in processing their

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applications and monitoring their authorizations.

Authority

    Laws or administrative directives which authorize cost recovery by 
the Forest Service include:
    1. Independent Offices Appropriations Act of 1952 (IOAA), as 
amended (31 U.S.C. 9701). This act provides that each Federal agency 
may charge for goods and services the agency provides to identifiable 
recipients. Such charges must be fair and must be based on the costs to 
the Federal Government and the value of the specific goods or services 
provided to the recipient.
    2. Office of Management and Budget (OMB; formerly Bureau of the 
Budget) Circular No. A-25, as revised July 15, 1993. This circular 
provides Federal agencies with specific direction for implementing the 
cost recovery provisions in Title V of the IOAA. Section 4a specifies 
that the circular covers all Federal activities that convey special 
benefits to recipients beyond those accruing to the general public.
    3. Mineral Leasing Act of 1920, as amended (30 U.S.C. 185(l)). The 
1973 amendment to section 28 of this act authorizes oil and gas 
pipeline uses; requires that an applicant for a right-of-way or permit 
reimburse the Federal Government for administrative and other costs 
incurred in processing the application; and requires that a holder of a 
right-of-way or permit reimburse those administrative and other costs 
incurred by the Federal Government in monitoring the construction, 
operation, maintenance, and termination of any pipeline and related 
facilities on the right-of-way.
    The legislative history of the 1973 amendment to the Mineral 
Leasing Act states that the reimbursement is in addition to rent 
charged for the land use. Under the Mineral Leasing Act, Federal 
agencies are entitled to recover actual costs; for example, the costs 
of preparing environmental impact statements, including environmental 
analyses and biological evaluations for Endangered Species Act 
compliance.
    4. Federal Land Policy and Management Act of 1976 (FLPMA; 43 U.S.C. 
1764(g)). Section 504 of FLPMA provides for reimbursement of costs in 
addition to the collection of a land use fee. The act authorizes 
agencies to promulgate regulations or, prior to promulgation of such 
regulations, to require as a condition of a right-of-way that an 
applicant or a holder reimburse the Federal Government for all 
``reasonable'' administrative and other costs incurred in processing an 
application for a right-of-way in monitoring authorizations. Factors 
that must be considered in establishing such reasonable costs under 
FLPMA include actual costs, the monetary value of the rights and 
privileges sought, that portion of the cost incurred for the benefit of 
the general public interest, the public service provided, the 
efficiency of the government processing involved, and other relevant 
factors. The act also provides a concise statement of Congressional 
intent concerning cost recovery generally.
    Public Law 98-300 (1984) amended section 504 of FLPMA (43 U.S.C. 
1764(g)) to exempt certain Rural Electrification Act-financed 
facilities from Federal land use fees, but notably retains the 
authority of agencies to require reimbursement of reasonable 
administrative and other costs related to processing applications and 
monitoring authorizations for such facilities.
    5. National Historic Preservation Act of 1966 (NHPA; (16 U.S.C. 
470(h-2)). Section 110(g) of this act provides that Federal agencies 
may require prospective licensees and permittees to pay for the Federal 
Government's costs of preservation activities as a condition of 
issuance of a license or permit.

Comparison of Forest Service and BLM Proposed Cost Recovery Rules 
and Fees

    The cost recovery provisions and fees in this proposed Forest 
Service rule are consistent with those proposed by BLM, but there are 
differences:
    1. The Forest Service addresses only cost recovery in its proposed 
rule at the previously reserved 36 CFR 251.58, whereas the proposed BLM 
rule (64 FR 321055, June 15, 1999) not only addresses revisions to its 
existing cost recovery regulations, but also proposes extensive 
revisions unrelated to processing and monitoring fees and includes 
reorganization and recoding of BLM's rules on rights-of-way at 43 CFR 
parts 2800 and 2880.
    2. The Forest Service is proposing a processing fee category A for 
``minimal impact'' and a monitoring fee category A for ``no 
monitoring'' to include low impact activities and uses in areas already 
approved or designated for that use in forest plans. Many of these 
activities and uses are recreational (such as fishing tournaments and 
bicycling races). The BLM rule does not include these categories; the 
BLM rule addresses only rights-of-way and does not apply to recreation 
activities. The Forest Service proposes a fee of $75 for processing an 
application in the minimal impact processing fee category A and no 
monitoring fee.
    3. The Forest Service and BLM both propose to assign applications 
and authorizations to fee categories for processing and monitoring 
based on the time and other costs the agencies incur. Whereas the 
Forest Service would assign the monitoring fee category to an 
authorization separately from the processing fee category for the 
application, BLM would automatically assign the fee category for 
monitoring based on the processing fee category.
    4. The Forest Service would issue the cost recovery fee schedules 
in the agency's directive system in Forest Service Handbook (FSH) 
2709.11, Special Uses Handbook, chapter 30 (which can be accessed 
electronically via the Internet at the agency's directives home page: 
http://www.fs.fed.us/im/directives/). BLM is setting out its fee 
schedule in the preamble to its proposed and final rules and proposes 
to make the fee schedule available at BLM offices and on its home page 
at http://www.blm.gov.
    The BLM sets out separate proposed fee schedules for applications 
and authorizations under the Mineral Leasing Act and those under the 
Federal Land Policy and Management Act because of the differences in 
the legal standard for calculating cost recovery fees under these two 
authorities. The Forest Service has adopted the same approach as BLM in 
setting out its proposed cost recovery fee schedules. For further 
information on these cost differences, see the description in the 
preceding Authority section.
    The Forest Service has added letters in naming its proposed fee 
categories to accommodate the addition of category A for the minimal 
impact processing fee (up to and including 8 hours) and no monitoring 
fee, and to incorporate the existing BLM processing and monitoring fee 
categories I through IV as Forest Service categories B-I through B-IV. 
Category B-I would require more than 8 and up to and including 24 hours 
of agency time for processing or up to and including 24 hours of agency 
time for monitoring; category B-II would require more than 24 hours and 
up to and including 36 hours; category B-III would require more than 36 
hours and up to and including 50 hours; and category B-IV would require 
more than 50 hours. The Forest Service proposed category C involves the 
use of master agreements which would apply only to fees for processing 
applications, not to monitoring the authorization. The Forest Service 
proposed categories A and C would not apply to applications and 
authorizations under the Mineral Leasing Act. The following tables 
summarize the fee schedules and categories proposed by the Forest 
Service and BLM:

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                                               Proposed Fee Schedules for Applications and Authorizations
                                                 [Except those authorized under the Mineral Leasing Act]
--------------------------------------------------------------------------------------------------------------------------------------------------------
            Category                  Processing                  Processing Fee                  Monitoring                  Monitoring Fee
--------------------------------------------------------------------------------------------------------------------------------------------------------
     FS               BLM                Hours                FS                  BLM                Hours                FS                  BLM
--------------------------------------------------------------------------------------------------------------------------------------------------------
A...........  ..................  8......  75 (minimal         ..................  0.................  0 (no monitoring).  ..................
                                                       impact).
B-I.........  I.................  >8 & 24  $230..............  $230..............  24.....  $80...............  $80.
B-II........  II................  >24 & 24 & 36.                                                      eq>36.
B-III.......  III...............  >36 & 36 & 50.                                                      eq>50.
B-IV........  IV................  >50...............  Full reasonable     Full reasonable     >50...............  Full reasonable     Full reasonable
                                                       cost as required    costs as required.                      costs as required   costs as
                                                       determined on a                                             costs as required   required.
                                                       case-by-case                                                determined on a
                                                       basis.                                                      case-by-case
                                                                                                                   basis.
C*..........  Master Agreement..  Full reasonable     As negotiated.....  ..................  As negotiated. ...
                                   costs as required
                                   determined on a
                                   case-by-case
                                   basis.
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Master agreement for processing fees only.


                                      Proposed Fee Schedule for Mineral Leasing Act Applications and Authorizations
--------------------------------------------------------------------------------------------------------------------------------------------------------
           Category *                                             Processing Fee                                              Monitoring Fee
---------------------------------  Processing Hours  ----------------------------------------  Monitoring Hours  ---------------------------------------
     FS               BLM                                     FS                  BLM                                     FS                  BLM
--------------------------------------------------------------------------------------------------------------------------------------------------------
B-I.........  I.................  >8 & 24  $200..............  $200..............  24.....  $70...............  $70
B-II........  II................  >24 & 24 & 36.                                                      eq>36.
B-III.......  III...............  >36 & 36 & 50.                                                      eq>50.
B-IV........  IV................  >50...............  Full actual costs   Full actual costs.  >50...............  Full actual costs   Full actual costs.
                                                       determined on a                                             determined a case-
                                                       case-by-case                                                by-on costs.
                                                       basis.
              Master Agreement..  ..................  ..................  As negotiated.....  ..................  As negotiated. ...
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Note that the Forest Service does not have a category A (minimal impact/no monitoring) or a category C (master agreement) for Mineral Leasing Act
  applications and authorizations.

5. Analysis of Proposed Rule

    A section-by-section explanation of the proposed cost recovery rule 
follows.
    Proposed Sec. 251.51 Definitions. This section would be revised to 
add a definition of monitoring that ensures consistency in the 
identification of activities subject to a monitoring fee and in the 
determination of monitoring fee categories and amounts.
    Proposed Sec. 251.58 Cost Recovery. This section is currently 
reserved under the heading ``Cost Reimbursement.'' Regulations would be 
promulgated to implement requirements in the various applicable laws 
and OMB Circular No. A-25 directing Federal agencies to recover costs 
for services provided to identifiable recipients beyond those accruing 
to the general public. This section would deal specifically with the 
recovery of costs involved in processing applications for special uses 
and in monitoring compliance with special use authorizations.
    The proposed rule generally would not apply to agency costs 
associated with administration of outstanding rights in Federal lands 
that may be exercised without a special use authorization. An example 
would be use of public highways that predate the establishment of a 
National Forest. The proposed rule may apply to an outstanding right 
when the holder of that right is otherwise required by law or 
regulation to secure an authorization or approval from the Forest 
Service.
    Paragraph (a) of the proposed rule would direct the agency to 
recover its processing costs for special use applications and 
monitoring costs for authorized special uses by assessing fees separate 
from any fees charged for use and occupancy of National Forest System 
lands.
    Paragraph (b) would apply the cost recovery requirements to the 
processing of applications and monitoring of special use authorizations 
pursuant to 36 CFR part 251, subpart B.
    Paragraphs (b)(1) through (b)(3) would specify situations that 
would prompt assessment of processing fees pursuant to this rule. 
Examples include, but are not limited to, cases where a new or amended 
authorization is needed to approve substantial changes to an existing 
use.
    Paragraph (b)(4) specifies that monitoring fees would be applicable 
only to special use authorizations issued on or after the date of the 
adoption of this rule.
    Paragraphs (c) through (c)(6)(iii) would address proposed 
processing fees to recover agency costs. Some of the agency's 
processing costs, as indicated in paragraph (c)(1), would include the 
agency's formal acknowledgment of receipt and initial review of an 
application, case file set-up, computer data entry coding, 
environmental reviews and analyses, meetings with the

[[Page 66347]]

applicant, and preparation of a special use authorization. These costs 
would be specific to a project and would not include the cost of agency 
services or benefits that are for the benefit of the general public. 
Paragraphs (c)(1)(i) to (c)(1)(ii)(B) would set out the requirements 
for determining processing fees based on actual costs for applications 
under the Mineral Leasing Act or reasonable costs for applications 
under other authorities.
    Paragraphs (c)(2) through (c)(6)(iii) would provide for a schedule 
of six processing fee categories, based on the complexity of the 
proposed use and the agency time needed for processing applications.
    A one-time, nonrefundable fee would be assessed for processing 
applications in categories A through B-III. For applications other than 
those submitted for authorizations issued under the Mineral Leasing 
Act, a minimal impact category A, requiring up to 8 hours to process 
(paragraph (c)(2)(i)), would be established at a rate of $75. The 
Forest Service has determined that it costs at least $75 to process any 
special use application. The agency does not anticipate a need for a 
minimal impact category for Mineral Leasing Act applications.
    Categories B-I through B-IV would be defined using criteria 
comparable to those proposed by BLM (64 FR 32105, June 15, 1999). The 
proposed schedule fee rates for categories B-I through B-III 
(paragraphs (c)(2)(ii)-(iv)) would be identical to those proposed by 
BLM and are based on cost data that BLM has collected to support those 
rates in each category. The Forest Service proposes to adopt those 
rates and categories because (1) its costs of processing special use 
applications on National Forest System lands are comparable to BLM's 
costs of processing applications for rights-of-way on BLM-administered 
public lands, and (2) the public is better served by maintaining 
consistency in special uses and rights-of-way administration between 
the Forest Service and BLM.
    Under category B-IV (paragraph (c)(2)(v)), a processing fee 
specific to each project is proposed to recover the full reasonable 
costs (for non-Mineral Leasing Act applications) or the full actual 
costs (for Mineral Leasing Act applications) that are associated with 
conducting agency studies, lengthy environmental analyses, and other 
actions that cumulatively require more than 50 hours of agency time to 
complete.
    For applications under authorities other than the Mineral Leasing 
Act, the Forest Service and the applicant could enter into master 
agreements (category C) to recover processing costs associated with a 
particular application, a group of applications, or similar 
applications filed by the same applicant within a specified geographic 
area (paragraphs (c)(2)(vi)(A)-(E)). Each application covered by a 
master agreement would be assigned its own processing fee category and 
rate. Master agreements may be considered an efficient alternative to 
case-specific estimates of processing time, particularly when an 
applicant or holder routinely submits proposals or has several 
authorizations within a defined area or administrative unit. The agency 
does not anticipate a need for master agreements for processing Mineral 
Leasing Act applications because they seldom, if ever, are submitted as 
a group or relate to other applications.
    Processing fees in category B-IV or processing fees submitted 
pursuant to a master agreement could be assessed and collected in 
periodic installments. The authorized officer would estimate the 
processing fees for category B-IV applications on a case-specific basis 
and would reconcile the fees based on the full reasonable costs for 
non-Mineral Leasing Act applications or on the full actual costs for 
Mineral Leasing Act applications. Upon the agency's completion of all 
processing tasks for a category B-IV application, any remaining balance 
of the processing fees would be either refunded to the applicant or 
credited towards monitoring fee assessments. When the estimated 
processing fee in category B-IV is lower than the agency's costs for 
processing an application, the applicant would be obligated to pay the 
difference between the estimated costs and the agency's full actual or 
reasonable costs. For all categories, an applicant's payment of a 
processing fee would neither ensure nor imply agency approval of the 
proposed use or occupancy. The applicant would be liable for the 
agency's processing costs regardless of whether the application is 
subsequently denied by the agency or withdrawn by the applicant.
    Establishment of a processing fee is expected to encourage 
prospective applicants to discuss their proposed use and occupancy with 
the Forest Service prior to submitting an application. The agency 
anticipates that this fee may also provide an incentive for proponents 
to better design their applications to meet the agency's resource 
management concerns and objectives. The agency would not duplicate 
processing activities to be conducted by the applicant. Applicants 
would be strongly encouraged to conduct as many of the necessary 
processing steps as possible (such as collecting data; performing 
studies; completing resource surveys, evaluations, and assessments; and 
conducting and documenting environmental analyses). Having the 
applicant conduct these steps would minimize the time the Forest 
Service needs to process an application and would reduce the 
application's impact on limited Forest Service resources. The applicant 
also would minimize the application processing fee charged by the 
Forest Service and, in many cases, would expedite the Forest Service's 
processing of the application.
    Paragraphs (c)(3) through (c)(3)(ii) would address how processing 
costs would be assessed when two or more applicants apply and compete 
for one use. Included are separate provisions for assessing processing 
fees when the competitive interest in a particular use or occupancy is 
(1) unsolicited by the Forest Service or (2) solicited by the Forest 
Service.
    Paragraphs (c)(4) through (c)(4)(ii) would describe how and when 
the authorized officer would determine an appropriate processing fee 
for each accepted application, notify and bill applicants, and revise 
fees.
    Paragraphs (c)(5) through (c)(5)(ii) would provide direction for 
the payment of processing fees and would provide that the agency would 
not initiate processing an application until receipt of full payment of 
the prescribed processing fee.
    Paragraphs (c)(6) through (c)(6)(iii) would specify that processing 
fees in categories A and B-I through B-III are nonrefundable and would 
describe under what conditions the processing fee for category B-IV 
would be refunded to an applicant.
    Paragraphs (d) through (d)(4)(ii) would provide for recovering 
those costs the Forest Service incurs in monitoring compliance with 
special use authorizations during construction or reconstruction of 
facilities, plus those costs incurred during on-site inspections of 
authorized facilities and operations to ensure compliance with a 
special use authorization.
    Paragraphs (d)(1) through (d)(1)(ii) would describe the basis for 
monitoring fees. A one-time, nonrefundable fee would be assessed for 
monitoring compliance with authorizations in categories B-I through B-
III. The authorized officer would estimate the monitoring fee under 
category B-IV on a case-by-case basis and would reconcile the fee based 
on full reasonable costs for monitoring non-Mineral Leasing Act 
authorizations or full actual costs for monitoring Mineral Leasing Act 
authorizations.

[[Page 66348]]

    Paragraphs (d)(2) through (d)(2)(v) would provide for a schedule of 
five monitoring fee categories, based on the complexity of the activity 
to be monitored. Except for authorizations issued under the Mineral 
Leasing Act, a category A would be established for authorizations that 
require no monitoring and for which no monitoring fee would be charged. 
The agency does not anticipate a need for a no monitoring category for 
Mineral Leasing Act authorizations. Categories B-I through B-IV would 
be defined using criteria comparable to those proposed by BLM (64 FR 
32105, June 15, 1999) and are based on cost data that BLM has collected 
to support its monitoring fee rates.
    Paragraph (d)(3)(i) would allow the holder to pay the monitoring 
fee in installments based on estimates of the total fee and with the 
approval of the authorized officer. When the estimated monitoring fee 
in category B-IV is lower than the agency's costs incurred in 
monitoring an authorization, the holder of the special use 
authorization would pay the difference.
    Paragraphs (d)(4) through (d)(4)(ii) would specify that monitoring 
fees in categories B-I through B-III are nonrefundable and would 
describe under what conditions the monitoring fee for category B-IV 
would be refunded to an authorization holder.
    Paragraphs (e) through (e)(3) would provide applicants and holders 
with a process for disputing or requesting a reduction in the 
established processing or monitoring fees.
    Paragraphs (f) through (f)(2) would identify the circumstances 
under which the authorized officer may waive all or part of a 
processing or monitoring fee. Waiving all or any part of a fee pursuant 
to these criteria would be discretionary on the part of the authorized 
officer and would not be an entitlement of the applicant or holder.
    Paragraph (f)(1)(i) would provide for waiving fees for a local, 
State, or Federal governmental entity that waives similar fees for the 
Forest Service.
    Paragraph (f)(1)(ii) would allow the authorized officer to waive 
part of the processing fee when a major portion of the costs results 
from issues not related to the actual project being proposed. For 
example, an application is submitted for an outfitter-guide use in a 
geographic area where numerous similar outfitter-guide uses have 
already been authorized. The new application prompts the need for the 
Forest Service to conduct an analysis of the capability of the land and 
its resources to accommodate particular types of uses related to the 
proposed use, and to examine allocations of commercial versus 
noncommercial uses within the subject area. Although the analysis is 
triggered by the new application, the purpose of the analysis is only 
minimally attributable to the applicant's proposed use and occupancy. 
Thus, it is inappropriate to assess that applicant the total cost of 
such an analysis.
    Paragraph (f)(1)(iii) would provide for a waiver or partial waiver 
of processing or monitoring fees when a proposed project is intended to 
prevent or mitigate damage to real property or to mitigate hazards to 
public health and safety resulting from an act of God, an act of war, 
or negligence of the United States. For example, a storm destroys a 
culvert crossing of a forest development road that provides access to a 
parcel of private land. The landowner has an easement for the operation 
and maintenance of the landowner's proportionate use of the road. The 
landowner offers to replace the culvert and mitigate the associated 
damages that have resulted from the storm, and the work requires the 
landowner to obtain a special use authorization for occupancy and use 
of National Forest System lands outside the right-of-way limits of the 
roadway. The fee for processing an application for this work may be 
waived by the authorized officer because of the public and/or agency 
benefits to be realized by the proposed use (that is, mitigating 
damages to National Forest System lands and resources by repairing the 
culvert crossing and adjacent lands to standards established by the 
Forest Service).
    Paragraph (f)(1)(iv) would provide for a waiver or partial waiver 
of processing or monitoring fees when a proposed activity is necessary 
to move a facility or improvement to a new location to comply with 
public health and safety or environmental requirements that were not in 
effect at the time the authorization was issued. For example, the 
discovery of habitat critical to threatened or endangered species 
requires an authorized officer to relocate a recreation residence to 
another lot. The authorized officer may waive the fee to process the 
holder's application for relocation of the residence to another lot.
    Paragraph (f)(1)(v) would provide for a waiver or partial waiver 
where an improvement or facility must be relocated because the land is 
needed by a Federal agency or federally funded project for an 
alternative public purpose. For example, the Forest Service decides to 
construct a recreational facility in a location occupied by an 
authorized use, such as a private access road. The new recreational 
facility requires relocation of a segment of the access road to 
preclude user conflicts between the landowner and the recreating 
public. The road relocation requires a new or amended special use 
authorization. Processing fees associated with the landowner's 
application for the authorization may be waived by the authorized 
officer.
    Paragraphs (f)(1)(vi) through (f)(1)(vi)(B) would provide for 
waiving fees for processing an application or monitoring an 
authorization on behalf of a nonprofit organization, corporation, or 
association that is not controlled by or a subsidiary of a profit-
making enterprise when studies undertaken in processing the application 
have a public benefit or the proposed facility or project would provide 
a free service to the public or to a USDA program.
    Paragraph (f)(2) would require that requests for waivers be in 
writing and include an analysis of the applicability of the waiver 
criteria.
    Paragraph (g) would exempt from processing and monitoring fees 
those applications and authorizations for noncommercial group uses and 
for activities otherwise prohibited by a closure order, except for 
access to non-Federal lands within the boundaries of the National 
Forest System granted pursuant to section 1323(a) of the Alaska 
National Interest Lands Conservation Act (16 U.S.C. 3210(a)).
    Paragraph (h) would provide that decisions to assess a processing 
or monitoring fee or to determine the fee category or amount are not 
appealable. Paragraph (h) also would provide that a decision in 
response to a request for a reduction in a processing or monitoring fee 
is not subject to administrative appeal.
    Paragraph (i)(1) would provide that the proposed schedules for 
processing and monitoring fees applicable to most special use 
applications and authorizations would be set out in the Forest Service 
directive system. This paragraph would specify further that the agency 
will keep fee schedules current with annual adjustments of fee rates in 
each cost category using the Implicit Price Deflator-Gross Domestic 
Product (IPD-GDP) index and will round up changes in the rates to the 
nearest dollar. Paragraphs (i)(2)(i) and (i)(2)(ii) would require the 
agency to review the fee rates on the 5-year anniversary of the 
adoption of the final rule.

6. Regulatory Requirements

Environmental Impact

    This proposed rule would establish administrative fee categories 
and

[[Page 66349]]

procedures for processing special use applications and monitoring 
special use authorizations on National Forest System lands. Section 
31.1b of Forest Service Handbook (FSH) 1909.15 (57 FR 43180, September 
18, 1992) excludes from documentation in an environmental assessment or 
impact statement ``rules, regulations, or policies to establish 
Service-wide administrative procedures, program processes, or 
instructions.'' The agency's preliminary assessment is that this 
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. A final 
determination will be made upon adoption of the final rule.

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. It has been 
determined that this is not a significant rule. This proposed rule 
would not have an annual effect of $100 million or more on the economy, 
nor would it adversely affect productivity, competition, jobs, the 
environment, public health or safety, or State or local governments. 
This proposed rule would not interfere with any action taken or planned 
by another agency, nor would it raise new legal or policy issues. 
Finally, this proposed action would not alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients of such programs. Accordingly, this proposed 
rule is not subject to Office of Management and Budget (OMB) review 
under Executive Order 12866.
    Moreover, this proposed rule has been considered in light of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been 
determined that this proposed action would not have a significant 
economic impact on a substantial number of small entities as defined by 
the act because it would not impose record-keeping requirements on 
them; it would not affect their competitive position in relation to 
large entities; and it would not affect their cash flow, liquidity, or 
ability to remain in the market. In addition, the Forest Service is 
proposing a flat fee of $75 for processing an application in the 
minimal impact processing fee category A and no monitoring fee. Most 
small entity application requests would fall within this flat fee 
category.

Federalism

    The agency has considered this proposed rule under the requirements 
of Executive Order 13132, Federalism, and has made a preliminary 
assessment that the 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 national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Moreover, the cost recovery processing 
and monitoring fees set out in this proposed rule may be waived for 
local and State government entities that waive similar fees they might 
otherwise assess the Forest Service. Based on comments received on this 
proposed rule, the agency will consider if any additional consultation 
will be needed with State and local governments prior to adopting a 
final rule.

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630, and it has 
been determined that the proposed rule does not pose the risk of a 
taking of constitutionally protected private property.

Civil Justice Reform Act

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule were adopted, (1) all State 
and local laws and regulations that are in conflict with this proposed 
rule or that would impede its full implementation would be preempted; 
(2) no retroactive effect would be given to this 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), which the President signed into law on March 22, 
1995, the agency has assessed the effects of this proposed rule on 
State, local, and tribal governments and the private sector. This 
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

    This proposed rule does not contain any record-keeping 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. The information collection being requested as a 
result of this action has been approved by the Office of Management and 
Budget (OMB) (Number 0596-0082). 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 36 CFR part 251 as follows:

PART 251--LAND USES

Subpart B--Special Uses

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

    Authority: 16 U.S.C. 472, 497b, 551, 1134, 3210; 30 U.S.C. 185; 
43 U.S.C. 1740, 1761-1771.

    2. Amend Sec. 251.51 by adding a definition for ``monitoring'' in 
alphabetical sequence to read as follows:


Sec. 251.51  Definitions.

* * * * *
    Monitoring--Actions needed to ensure compliance with special use 
authorizations during construction or reconstruction. Monitoring also 
includes on-site inspections of facilities and authorized activities to 
ensure compliance with a special use authorization. Monitoring does not 
include routine administrative actions, such as billings or maintenance 
of case files.
* * * * *
    3. Revise the heading for Sec. 251.58 and add new text to the 
formerly reserved Sec. 251.58 to read as follows:


Sec. 251.58  Cost recovery.

    (a) Assessment of fees to recover agency processing and monitoring 
costs. The Forest Service shall assess fees to recover the agency's 
processing costs for special use applications and monitoring costs for 
authorized special uses. These fees are separate from any fees charged 
for the use and occupancy of National Forest System lands. Fee rates 
for recovery of processing costs are determined according to categories 
established for the hours of work required to process applications as 
set out in paragraph (c)(2) of this section.

[[Page 66350]]

Separate categories for recovery of monitoring costs are set out in 
paragraph (d)(2) of this section. As provided in paragraph (i) of this 
section, processing and monitoring fee rates are revised annually, set 
out in the Forest Service directive system, and reviewed every 5 years.
    (b) Special use applications and authorizations subject to cost 
recovery requirements. Except as exempted in paragraph (g) of this 
section, the cost recovery requirements of this section apply in the 
following situations to the processing of applications and monitoring 
of special use authorizations issued pursuant to this subpart B.
    (1) Applications for use and occupancy that require a new special 
use authorization. Fees for processing an application for a new special 
use authorization shall be assessed for any application that has been 
formally accepted by the agency on or after [the effective date of the 
final rule] and any application that was accepted by the agency before 
[the effective date of the final rule], but for which an authorization 
has not yet been issued, regardless of whether the application was 
unsolicited or solicited by the Forest Service.
    (2) Changes to existing authorizations. Processing fees apply to 
proposals by holders that would require an application to amend an 
authorization, operating plan, or master development plan.
    (3) Applications for new authorizations prompted by termination of 
an existing authorization or by a change in ownership or control of the 
authorized improvements. Applicants or holders proposing a new 
authorization prompted by termination of an existing authorization or 
by a change in ownership or control of the holder of the authorized 
improvements shall submit the information needed for the authorized 
officer to determine the appropriate processing and monitoring fee.
    (4) Monitoring of authorizations issued on or after [the effective 
date of the final rule].
    (c) Processing fee requirements. A processing fee is required for 
each application for a special use authorization as identified in 
paragraphs (b)(1) through (b)(3) of this section. Processing fees do 
not include costs incurred by the applicant in providing information, 
data, and documentation necessary for the authorized officer to make a 
decision on the proposed use or occupancy, pursuant to the provisions 
at Sec. 251.54.
    (1) Basis of processing fees. The processing fee categories A and 
B-I through B-IV set out in paragraphs (c)(2)(i) through (c)(2)(v) of 
this section are based upon the amount of time that the Forest Service 
spends reviewing the application, conducting environmental analyses of 
the effects of the proposed use, reviewing any applicant-generated 
environmental documents and studies, conducting site visits, evaluating 
an applicant's technical and financial qualifications, making a 
decision on whether to issue the authorization, and preparing 
documentation of analyses, decisions, and authorizations for each 
application. Different processing fee schedules are set out in the 
agency's directive system (paragraph (i) of this section) for 
applications submitted under the Mineral Leasing Act (based on recovery 
of actual costs) and applications submitted under other authorities 
(based on recovery of reasonable costs). The amount of time required 
for processing an application and thus the processing fee depend on the 
complexity of the project; the amount of information that the 
authorized officer needs to make a decision in response to the proposed 
use or occupancy; and the degree to which the applicant is willing to 
provide this information to the agency. Processing work conducted by 
the applicant or a third party minimizes the time the Forest Service 
needs to process the application and thus reduces the processing fee. 
The total processing time is the total time estimated for all Forest 
Service personnel involved in processing an application and is 
estimated on a case-by-case basis to determine the fee category. A one-
time, nonrefundable fee shall be assessed for processing applications 
in categories A and B-I through B-III. The processing fee under 
category B-IV set out in paragraph (c)(2)(vi) shall be established on a 
case-specific basis, based on the authorized officer's estimate of the 
agency's processing costs. Differences between the estimated processing 
costs and the agency's final processing costs are reconciled when the 
processing of the applications is complete.
    (i) Use of actual costs in determining fees for processing 
applications under the Mineral Leasing Act. For applications submitted 
under authority of the Mineral Leasing Act (30 U.S.C. 185(l)), the 
authorized officer reconciles the difference between the processing fee 
estimated for the category B-IV application and the agency's full 
actual costs incurred in processing the application.
    (ii) Use of reasonable costs in determining fees for processing 
applications under other authorities. For applications submitted under 
other authorities, the authorized officer reconciles the differences 
between the processing fee estimated for the category B-IV application 
and the agency's full reasonable costs incurred in processing the 
application. The applicant:
    (A) May submit a written analysis of actual costs, the monetary 
value of the rights and privileges sought, that portion of the cost 
incurred for the benefit of the general public interest, the public 
service provided, the efficiency of the government processing involved, 
and other relevant factors as applied to the full reasonable costs 
associated with processing the application, or
    (B) May agree in writing to waive consideration of reasonable costs 
and pay all actual costs incurred in processing the application.
    (2) Processing fee categories.--(i) Category A: Minimal impact. The 
Forest Service has available, or the applicant provides, the 
information necessary to process the application in compliance with the 
National Environmental Policy Act and other applicable statutes. Total 
estimated processing time for an application in this fee category does 
not exceed 8 hours for agency personnel to review the application, to 
decide on whether to issue an authorization for the proposed use or 
occupancy, and to prepare and issue the authorization.
    (ii) Category B-I: More than 8 and up to and including 24 hours. 
The total estimated time in this category is more than 8 and up to and 
including 24 hours for Forest Service personnel to process an 
application.
    (iii) Category B-II: More than 24 and up to and including 36 hours. 
The total estimated time in this category is more than 24 and up to and 
including 36 hours for Forest Service personnel to process an 
application.
    (iv) Category B-III: More than 36 and up to and including 50 hours. 
The total estimated time in this category is more than 36 and up to and 
including 50 hours for Forest Service personnel to process an 
application.
    (v) Category B-IV: More than 50 hours. In this category more than 
50 hours are needed for Forest Service personnel to process an 
application. The authorized officer shall determine the issues to be 
addressed and shall develop preliminary work and financial plans for 
estimating recoverable costs.
    (vi) Category C: Master agreements. The Forest Service and the 
applicant may enter into master agreements for the agency to recover 
processing costs associated with a particular application, a group of 
applications, or similar applications filed by the same applicant 
within a specified geographic area. A master agreement shall include:

[[Page 66351]]

    (A) An initial cost estimate;
    (B) A description of the method for periodic billing, payment, and 
auditing;
    (C) A description of the geographical area covered by the 
agreement;
    (D) A work plan and provisions for updating; and
    (E) Specific conditions for terminating the agreement.
    (3) Competitive interest. The authorized officer shall determine if 
a competitive interest exists when a proposal is submitted to use or 
occupy National Forest System lands.
    (i) In situations where there are two or more unsolicited 
competitive proposals, each applicant must pay processing fees as 
required under this section. Processing costs that are associated with 
more than one application (such as the costs of printing an 
environmental impact statement that generally relates to all of the 
applications) must be paid in equal shares or on a prorated basis, as 
deemed appropriate by the authorized officer, but may not exceed the 
full actual costs of processing applications submitted under the 
Mineral Leasing Act or the full reasonable costs of processing 
applications submitted under other authorities.
    (ii) When the Forest Service solicits applications for the use and 
occupancy of National Forest System lands through a request for 
proposal, a prospectus, or similar solicitation, the agency is 
responsible for the costs of environmental analyses and reviews 
conducted before the solicitation is issued. The Forest Service shall 
collect a fee from each party requesting a copy of the solicitation 
package to cover the agency's costs for printing and mailing. The 
selected applicant is required to pay a processing fee that covers the 
Forest Service's costs to review and evaluate the selected applicant's 
proposal, including establishing a case file; recording data; and 
conducting financial reviews, additional environmental analysis, and 
preauthorization meetings with the applicant.
    (4) Billing and revision of processing fees.--(i) Billing. When the 
Forest Service accepts a special use application, the authorized 
officer shall provide written notice to the applicant that the 
application has been formally accepted and shall include a bill for the 
estimated amount of the processing fee, based on one of the processing 
fee categories A, B-I through B-IV, or C (paragraphs (c)(2)(i) through 
(vi)).
    (ii) Revision of processing fees. In processing an application, if 
the authorized officer discovers previously undisclosed information 
that necessitates a change in the processing fee, the authorized 
officer shall revise the processing fee based on that information 
before continuing with consideration of the application. Written notice 
of the authorized officer's processing fee determination shall be 
provided to the applicant, along with a bill for that fee amount.
    (5) Payment of processing fees.--(i) Payment of the processing fee 
shall be due within 30 days of the bill issued pursuant to paragraph 
(c)(4) of this section. The processing fee must be paid before the 
Forest Service can initiate or, in the case of a revised fee, continue 
with processing an application. Payment of the processing fee by the 
applicant does not obligate the Forest Service to authorize the 
applicant's proposed use or occupancy.
    (ii) When the estimated processing fee in category B-IV is lower 
than the full actual costs of processing an application submitted under 
the Mineral Leasing Act or lower than the full reasonable costs of 
processing an application submitted under other authorities, the 
applicant shall pay the difference between the estimated and the full 
actual or reasonable processing costs.
    (6) Refunds of processing fees. (i) Processing fees in categories A 
and B-I through B-III are nonrefundable.
    (ii) For category B-IV applications, an applicant whose application 
is denied or withdrawn in writing is responsible for costs incurred by 
the Forest Service in processing the application up to and including 
the date the agency denies the application or receives written notice 
of the applicant's withdrawal. When an applicant withdraws a category 
B-IV application, the applicant also is responsible for any costs 
subsequently incurred by the Forest Service in terminating 
consideration of the application.
    (iii) If the payment of any category B-IV processing fee exceeds 
the full actual costs of processing an application submitted under the 
Mineral Leasing Act or the full reasonable costs of processing an 
application submitted under other authorities, the authorized officer 
shall either refund the excess payment to the applicant or, at the 
applicant's request, shall credit it towards monitoring fees due.
    (d) Monitoring fee requirements. The monitoring fee for an 
authorization shall be assessed independently of any fee assessed for 
processing the application for that authorization, pursuant to 
paragraph (c) of this section. Payment of the monitoring fee is due 
upon issuance of the authorization.
    (1) Basis for monitoring fees. Monitoring is defined at 
Sec. 251.51. For monitoring fee categories B-I through B-III, 
authorization holders are assessed monitoring fees based on the 
estimated time needed for agency monitoring to ensure compliance with 
special use authorizations during the construction or reconstruction of 
facilities, plus the estimated time needed to perform on-site 
inspections of authorized facilities and/or operations during one 
calendar year. The basis for determining the appropriate monitoring fee 
category B-I through B-IV does not include the time spent preparing 
billings, maintaining case files, or performing other routine 
administrative actions; for categories B-1 through B-III, estimates 
also do not include the time expended in cumulative multi-year annual 
or periodic on-site inspections. Monitoring fee categories are set out 
in paragraphs (d)(2)(i) through (d)(2)(v) of this section. A one-time, 
nonrefundable fee shall be assessed for monitoring compliance with 
authorizations in categories B-I through B-III. The monitoring fee 
under category B-IV set out in paragraph (d)(2)(v) shall be established 
on a case-specific basis, based on the authorized officer's estimate of 
the agency's monitoring costs. Differences between the estimated 
monitoring costs and the agency's final costs shall be reconciled when 
monitoring of the authorization has been completed.
    (i) Use of actual costs in determining fees for monitoring 
authorizations issued under the Mineral Leasing Act. For authorizations 
issued under the Mineral Leasing Act (30 U.S.C. 185 (l)), the 
authorized officer reconciles the difference between the monitoring fee 
estimated for the category B-IV and the agency's full actual costs 
incurred in monitoring the authorization.
    (ii) Use of reasonable costs in determining fees for monitoring 
authorizations issued under other authorities. For authorizations 
issued under authorities other than the Mineral Leasing Act, the 
authorized officer reconciles the difference between the monitoring fee 
estimated for the category B-IV authorization and the agency's full 
reasonable costs incurred in monitoring the authorization. The 
applicant:
    (A) May submit a written analysis of actual costs, the monetary 
value of the rights or privileges sought, that portion of the cost 
incurred for the benefit of the general public interest, the public 
service provided, the efficiency of the government processing involved, 
and other relevant factors as applied to the full reasonable costs 
associated with monitoring the authorization, or
    (B) May agree in writing to waive consideration of reasonable costs 
and

[[Page 66352]]

pay all actual costs incurred in monitoring the authorization.
    (2) Monitoring fee categories. The monitoring fee categories are:
    (i) Category A: No monitoring. This category applies to 
authorizations for use and occupancy that have low or no impacts on 
National Forest System lands and resources and for which the agency has 
no identifiable need or intention to conduct a site visit for resource 
protection purposes. No monitoring fee shall be assessed in this 
category.
    (ii) Category B-I: Up to and including 24 hours. Up to and 
including 24 hours are estimated for Forest Service personnel to 
monitor compliance with a special use authorization.
    (iii) Category B-II: More than 24 and up to and including 36 hours. 
More than 24 and up to and including 36 hours are estimated for Forest 
Service personnel to monitor compliance with a special use 
authorization.
    (iv) Category B-III: More than 36 and up to and including 50 hours. 
More than 36 and up to and including 50 hours are estimated for Forest 
Service personnel to monitor compliance with a special use 
authorization.
    (v) Category B-IV: More than 50 hours. More than 50 hours are 
needed for Forest Service personnel to monitor compliance with a 
special use authorization.
    (3) Billing and payment of monitoring fees. (i) The authorized 
officer shall estimate the monitoring costs and shall notify the holder 
of the required fee. The monitoring fees in categories B-I through B-
III must be paid in full before or at the same time the authorization 
is issued. For authorizations in category B-IV, the estimated 
monitoring fees must be paid in full before or at the same time the 
authorization is issued, unless the authorized officer and the 
applicant or holder agree in writing to periodic payments.
    (ii) When the estimated monitoring fee for an authorization in 
category B-IV is lower than the full actual costs of monitoring 
compliance with an authorization issued under the Mineral Leasing Act 
or lower than the full reasonable costs of monitoring compliance with 
an authorization issued under other authorities, the holder shall pay 
the difference in the next periodic payment or the authorized officer 
shall bill the holder for the difference between the estimated and the 
full actual or reasonable monitoring. Payment shall be due within 30 
days of receipt of the bill.
    (4) Refunds of monitoring fees. (i) Monitoring fees in categories 
B-I through B-III are nonrefundable.
    (ii) If the holder's payment of any category B-IV estimated 
monitoring fee exceeds the full actual costs of monitoring an 
authorization issued under the Mineral Leasing Act or the full 
reasonable costs of monitoring an authorization under other 
authorities, the authorized officer either shall adjust the next 
periodic payment to reflect the overpayment or shall refund the excess 
payment to the holder.
    (e) Applicant and holder disputes concerning processing or 
monitoring fee assessments; requests for changes in fee categories or 
amounts. (1) If an applicant or holder disagrees with the processing or 
monitoring fee category assigned by the authorized officer or, in the 
case of category B-IV applications or authorizations, with the 
estimated dollar amount of the processing or monitoring fee, the 
applicant or holder may submit a written request to the authorized 
officer for either a change in the fee rate or, in category B-IV cases, 
the estimated fee amount.
    (2) In the case of a disputed processing fee, such a request 
suspends the Forest Service's processing of the application, pending 
the following:
    (i) Consideration of the request by the authorized officer,
    (ii) Determination by the authorized officer of an appropriate 
processing fee, and
    (iii) The applicant's advance payment of the fee.
    (3) In the case of a disputed monitoring fee, a request to change 
the fee suspends the authorization for which the disputed fee is 
charged.
    (f) Waivers of processing and monitoring fees. (1) All or part of a 
processing or monitoring fee may be waived, at the sole discretion of 
the authorized officer, when one or more of the following criteria are 
met:
    (i) The applicant is a local, State, or Federal governmental entity 
that waives similar fees that the Forest Service might otherwise be 
assessed for services provided by the applicant;
    (ii) A major portion of the processing costs results from issues 
not related to the project being proposed;
    (iii) The proposal consists of a project intended to prevent or 
mitigate damage to real property, or to mitigate hazards or dangers to 
public health and safety resulting from an act of God, an act of war, 
or negligence of the United States.
    (iv) The proposal involves moving a facility or improvement to a 
location outside the authorized area to comply with public health, 
public safety, and environmental protection laws and regulations that 
were not in effect at the time the authorization was issued.
    (v) The application is for a new authorization to relocate 
facilities or improvements that must be moved because the land is 
needed by a Federal agency or federally funded project for an 
alternative public purpose.
    (vi) The applicant is a nonprofit organization, corporation, or 
association that is not controlled by or a subsidiary of a profit-
making enterprise, and:
    (A) The studies undertaken in connection with processing the 
application have a public benefit or
    (B) The proposed facility or project will provide a free service to 
the public or a program of the Secretary of Agriculture.
    (2) An applicant's or holder's request for a full or partial waiver 
of a processing or monitoring fee must be in writing and must include 
an analysis that demonstrates how one or more of the criteria in 
paragraph (f)(1) of this section apply.
    (g) Exemptions from processing and monitoring fees. No processing 
or monitoring fees shall be charged when the application or 
authorization is for a noncommercial group use as defined in 
Sec. 251.51 or for activities otherwise prohibited by a closure order, 
except for access to non-Federal lands within the boundaries of the 
National Forest System granted pursuant to section 1323(a) of the 
Alaska National Interest Lands Conservation Act (16 U.S.C. 3210(a)).
    (h) Appeal of decisions. (1) A decision to assess a processing or 
monitoring fee to determine the fee category or amount is not subject 
to administrative appeal.
    (2) A decision by an authorized officer in response to a request 
for a reduction in a processing or monitoring fee likewise is not 
subject to administrative appeal.

[[Page 66353]]

    (i) Processing and monitoring fee schedules. (1) The Forest Service 
shall maintain schedules for processing and monitoring fees in the 
directive system (36 CFR 200.4). These schedules shall be updated 
annually by adjusting the rates using the annual rate of change, second 
quarter to second quarter, in the Implicit Price Deflator-Gross 
Domestic Product (IPD-GDP) index. The Forest Service shall round up 
changes in the rates to the nearest dollar.
    (2) Upon the 5-year anniversary of the effective date of this 
section [Effective Date of the Final Rule], the Forest Service shall 
review these rates:
    (i) To determine whether they are commensurate with the actual or 
reasonable costs incurred by the agency in conducting the processing 
and monitoring activities covered by this section; and
    (ii) To assess consistency with processing and monitoring fee 
schedules established by the United States Department of the Interior, 
Bureau of Land Management.

    Dated: November 15, 1999.
Hilda Diaz-Soltero,
Associate Chief, Forest Service.
[FR Doc. 99-30587 Filed 11-23-99; 8:45 am]
BILLING CODE 3410-11-P