[Federal Register Volume 71, Number 34 (Tuesday, February 21, 2006)]
[Rules and Regulations]
[Pages 8892-8920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1444]



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Part II





Department of Agriculture





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Forest Service



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36 CFR Part 251



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

  Federal Register / Vol. 71 , No. 34 / Tuesday, February 21, 2006 / 
Rules and Regulations  

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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: Final rule.

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SUMMARY: The Department is adopting final 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. This final 
rule provides the agency with the regulatory authority to implement 
provisions in several statutes that authorize the Forest Service to 
collect fees to recover administrative costs associated with managing 
special uses on National Forest System lands. The provisions of this 
rule 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, 
as set forth in Public Law 98-300, and applications and authorizations 
involving Federal, State, and local governmental entities. The 
provisions of this rule do not apply to applications and authorizations 
for noncommercial group uses; applications and authorizations for 
recreation special uses, identified in Forest Service Handbook 2709.11, 
Chapter 50, by use codes 111 through 165, requiring 50 hours or less to 
process or monitor; and other uses specifically exempted by law or 
regulation. The rates established in this rule are the same as those 
adopted by BLM in its final right-of-way rule published in the Federal 
Register (70 FR 20969, Apr. 22, 2005).

EFFECTIVE DATE: This rule is effective March 23, 2006.

FOR FURTHER INFORMATION CONTACT: Maryann Kurtinaitis, Lands Staff, 
(202) 205-1264, or Carolyn Holbrook, Recreation and Heritage Resources 
Staff, (202) 205-1399, USDA, Forest Service.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Background
    Special Uses Program
    Need for Cost Recovery
    Use of Cost Recovery Fees
2. Public Comments on the Proposed Rule
    Overview
    Response to General Comments
    Response to Comments on the Supplementary Information Section in 
the Preamble to the Proposed Rule
    Response to Comments on Specific Sections of the Proposed Rule
3. Final Processing and Monitoring Fee Schedules
4. Authority
5. Regulatory Certifications
    Environmental Impact
    Regulatory Impact
    Cost-Benefit Analysis
    Regulatory Flexibility Analysis
    Federalism
    No Takings Implications
    Civil Justice Reform
    Unfunded Mandates
    Energy Effects
    Consultation With Tribal Governments
    Controlling Paperwork Burdens on the Public
6. Revisions to 36 CFR Part 251, Subpart B
7. Summary and Comparison of Provisions in the Proposed and Final 
Rules

1. Background

Special Uses Program

    Approximately 74,000 special use authorizations are in effect on 
National Forest System (NFS) lands, authorizing a variety of activities 
that range from individual private uses to large-scale commercial 
facilities and public services. Examples of authorized special uses 
include public and private road rights-of-way, apiaries, domestic water 
supply conveyance systems, telephone and electric service rights-of-
way, oil and gas pipeline rights-of-way, communications facilities, 
hydroelectric power-generating facilities, ski areas, resorts, marinas, 
municipal sewage treatment plants, and public parks and playgrounds. 
The agency estimates that it receives approximately 6,000 applications 
for special use authorizations each year. Each application is subject 
to some level of environmental analysis. For many cases, the collection 
of data, consultations, and scoping associated with the analysis and 
decisionmaking process can be costly in terms of both time and 
resources.

Need for Cost Recovery

    Requirements of the National Environmental Policy Act, the 
Wilderness Act of 1964, the Endangered Species Act, the National 
Historic Preservation Act of 1966, additional requirements of the 
Federal Land Policy and Management Act of 1976, Executive Order 11990 
(Floodplains), and Executive Order 11998 (Wetlands) directly affect the 
manner in which special use proposals must be evaluated and how 
authorizations are conditioned and administered. Compliance with these 
statutory authorities and Executive orders often can require extensive 
analysis and documentation of the impacts of use and occupancy on a 
wide array of environmental, cultural, and historical resources. As a 
result, processing applications for authorizations for new uses and 
reauthorizing existing uses often can become time-consuming and 
expensive for the Forest Service, applicants, and holders of 
authorizations. These impacts were a major factor in the development of 
amendments to the agency's regulations at 36 CFR part 251, subpart B, 
promulgated November 30, 1998 (63 FR 65949), to streamline the manner 
in which proposals and applications for special uses are processed and 
authorizations are administered.
    Despite these streamlining procedures, the agency is finding it 
increasingly difficult to provide timely reviews and evaluations of 
special use applications due to limited appropriations and staffing. 
The result is a growing backlog of applications for new uses and a 
growing number of expired authorizations for existing uses. The agency 
is increasingly unable to respond in a manner that meets the needs and 
expectations of special use applicants and authorization holders.
    In the past 10 years, the Government Accountability 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 businesslike 
manner and (2) promulgate regulations to exercise 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 cost recovery authorities. Recovery of 
processing and monitoring costs will provide additional funding for the 
agency to respond more promptly to special use applications, to take 
action on expired authorizations, to monitor compliance with 
authorizations more effectively, and to satisfy the needs and 
expectations of applicants and holders.

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Use of Cost Recovery Fees

    The Forest Service will use the processing and monitoring fees paid 
by applicants to fund the time and resources that the agency spends on 
the decisionmaking process in response to applications for the use and 
occupancy of NFS lands; to prepare and issue special use authorizations 
when the agency decides to authorize the proposed use and occupancy; 
and to monitor compliance with the terms and conditions of special use 
authorizations.
    The final rule will require an applicant or holder to pay a 
processing fee and, where applicable, a monitoring fee. The final rule 
will 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 are based on the 
estimated number of hours that agency personnel will spend in 
conducting activities directly related to processing an application and 
monitoring compliance with an authorization.
    This final Forest Service cost recovery rule is consistent with 
statutes that authorize the use and occupancy of NFS lands and the 
Independent Offices Appropriations Act of 1952 (IOAA), as amended (31 
U.S.C. 9701). The IOAA provides that Federal agencies should recover 
the costs they incur in providing specific benefits and services to an 
identifiable recipient beyond those provided to the general public, 
with an exception for official government business. Subsequent 
statutes, such as section 504(g) of the Federal Land Policy and 
Management Act of 1976 (FLPMA) (43 U.S.C. 1764(g)) and section 28(l) of 
the Mineral Leasing Act of 1920 (MLA), as amended (30 U.S.C. 184(1)), 
provide more specific authority to the Forest Service to recover costs 
associated with processing an application and monitoring an 
authorization. The Forest Service's processing of a special use 
application provides a specific 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 NFS 
lands. Likewise, monitoring activities for which cost recovery fees are 
charged, as enumerated in Sec.  251.58(d)(1) of the final rule, provide 
a specific benefit to holders in the form of actions necessary to 
ensure, in the case of minor category authorizations, compliance with 
the terms and conditions of the authorization during construction or 
reconstruction of temporary or permanent facilities and rehabilitation 
of the construction or reconstruction site and, in the case of major 
category authorizations, compliance with the terms and conditions of 
the authorization during all phases of its term. The final processing 
and monitoring fee schedules are set out in tables in section 3 of this 
final rule. A comparison of the provisions in the proposed and final 
rules appears in section 7 at the end of this final rule.

2. Public Comments on the Proposed Rule

Overview

    On November 24, 1999, the Forest Service published a proposed rule 
in the Federal Register (64 FR 66342) and sought public comment on 
adopting regulations for the recovery of costs for processing special 
use applications and monitoring compliance with special use 
authorizations. The notice explained that the proposed rule would apply 
to applications and authorizations for use of NFS lands, including 
situations where the land use fee may be exempted or waived, and to 
applications and authorizations involving Federal, State, and local 
governmental entities. The notice further explained that the proposed 
rule would not apply to applications or authorizations for 
noncommercial group uses and other uses specifically exempted, or where 
processing and monitoring fees were being collected by another Federal 
agency on behalf of the Forest Service. The notice provided for a 60-
day public comment period that ended on January 24, 2000.
    During the 60-day comment period, the agency received 11 requests 
for an extension of the comment period. Respondents indicated that 
additional time was needed due to the complexity of the proposed 
regulations and the occurrence of the holiday season. Although the 
Forest Service did not agree that the proposed regulation was complex, 
the agency twice extended the comment period by notice in the Federal 
Register (64 FR 72971, Dec. 29, 1999, and 65 FR 10042, Feb. 25, 2000), 
so that the comment period finally ended on March 9, 2000.
    To ensure the widest possible public review of the proposed 
regulations, the Forest Service conducted a series of eight public 
meetings between January 4 and March 6, 2000. Forest Service staff at 
the national and regional levels explained the proposed regulatory 
provisions and answered questions posed by the attendees. Approximately 
250 persons attended those meetings. The agency's regional offices also 
were encouraged to notify all authorization holders of record of the 
proposed cost recovery regulations and the dates and times of the 
regional public meetings. In addition, a list of associations and 
organizations provided by the Bureau of Land Management (BLM), whose 
membership includes special use authorization holders, were notified of 
the proposed regulation by either letter or electronic mail. These 
addressees were directed to the agency's World Wide Web site where the 
proposed regulation, press release, and questions and answers 
pertaining to cost recovery were posted.
    The Forest Service received 602 letters or electronic messages in 
response to the proposed rule. The 602 respondents represented 38 
States and the District of Columbia. Each respondent was grouped in one 
of the following categories:

------------------------------------------------------------------------
                Respondent category                   Number    Percent
------------------------------------------------------------------------
Authorization holder..............................        275         46
Commercial entity.................................         29          5
Environmental organization........................          1         <1
Trade/special interest organization...............         59         10
Private individual................................        173         29
Forest Service employee...........................         14          2
Federal agency....................................          9          1
State or local governmental agency................         34          6
Member of Congress................................          2         <1
Unknown...........................................          6         <1
                                                   ------------
    Total.........................................        602        100
------------------------------------------------------------------------

    Two special use authorization holder groups accounted for the 
majority of the comments on the proposed rule. The 194 responses from 
outfitters and guides (those holders providing commercial recreation 
services on the National Forests) or entities writing in behalf or in 
support of outfitters and guides represented 32 percent of the total 
number of responses. Almost all of those 194 responses were in the form 
of a standardized letter. The 77 responses from holders of 
authorizations for recreation residences (privately owned homes 
occupying NFS lands), or entities writing in behalf or in support of 
recreation residence holders, represented 13 percent of the total 
number of responses.
    Most respondents offered only general comments supporting or not 
supporting the proposed rule. Twenty-four respondents stated that they 
supported the proposed rule; 38 stated that they would support the 
proposed rule if certain modifications were made; 406 respondents 
stated, or their comments

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implied, that they did not support the proposed rule or the general 
concept of cost recovery; and the remaining 134 respondents were either 
noncommittal concerning cost recovery or not responsive to the issues 
presented in the proposed regulation. Responses categorized as 
nonresponsive to the Federal Register notice included comments on other 
Federal Register notices published by the Forest Service, such as the 
roads policy and the roadless area conservation initiative, or comments 
expressing a dislike for the Forest Service or the Federal Government 
in general. Most of those supporting the proposed rule do not hold a 
special use authorization, while the majority of those opposing the 
rule were special use authorization holders.

Response to General Comments

    In more than 300 comments, respondents offered recommendations in 
their support of the proposed rule or explained their opposition to the 
proposed rule. These comments did not address a specific section of the 
proposed rule, but rather dealt generally with the issue of cost 
recovery and the Forest Service's special uses program. These comments 
and the Department's responses have been grouped into 8 major 
categories.
    Comment. Adoption of cost recovery regulations should prompt the 
agency to conduct the special uses program in a more businesslike, 
consistent, and equitable manner. Some respondents were concerned that 
implementation of cost recovery without limits on the amount of fees to 
be charged would lead to an uncontrolled bureaucracy. Many respondents 
urged that the agency adopt strong customer service standards to ensure 
that officials implementing the regulations treat applicants and 
holders fairly, promptly, and consistently. A timely response to an 
application was important to respondents, which suggested that the 
final rule should clarify how the agency would improve its 
responsiveness and business practices. Several respondents recommended 
that the agency specify in the final rule how much time the agency 
would take to process applications.
    Response. The Department agrees that improvements in management of 
the special uses program are needed, and the Forest Service is 
aggressively working to achieve that goal. The reengineering study of 
the special uses program conducted by the agency from 1994 through 
1997, which is described in the preamble (SUPPLEMENTARY INFORMATION) to 
the proposed rule and referenced in this section of the final rule, 
provided the impetus for improving the agency's management of its 
special uses program. One outcome of the study was the adoption of the 
special uses streamlining regulation on November 30, 1998 (63 FR 
65949). That regulation has helped reduce costs to applicants and 
holders and allows the agency to provide more customer-oriented 
service. A second product from the study involved the addition of two 
new special use authorization categorical exclusion categories (69 FR 
40591, Jul. 6, 2004) to its procedures for implementing the National 
Environmental Policy Act (NEPA). These new categorical exclusion 
categories are intended to simplify documentation and analysis where 
experience has shown there are no significant environmental effects 
associated with applications that involve only an administrative change 
to an existing authorization, thus reducing the time and funding needed 
to process these types of special use applications. These final cost 
recovery regulations represent one more step in the agency's continuing 
effort to streamline its processes and be more responsive to its 
special uses customers.
    Further, the Department is incorporating customer service standards 
in Sec.  251.58(c)(7) of the final rule that will apply to all 
applications processed under these cost recovery regulations. Under 
these customer service standards, the Forest Service will endeavor to 
make a decision on an application that falls into minor processing 
category 1, 2, 3, or 4, and that is subject to a categorical exclusion 
pursuant to NEPA, within 60 calendar days from the date of receipt of 
the processing fee. If the application cannot be processed within the 
60-day period, then prior to the 30th calendar day of the 60-day 
period, the authorized officer will notify the applicant in writing of 
the reason why the application cannot be processed within the 60-day 
period and will provide the applicant with a projected date when the 
agency plans to complete processing the application. For all other 
applications, including all applications that require an environmental 
assessment or an environmental impact statement, the authorized officer 
will, within 60 calendar days of acceptance of the application, notify 
the applicant in writing of the anticipated steps and timeframes that 
will be needed to process the application. The Forest Service will 
endeavor to process applications that are subject to a waiver of or 
exempt from cost recovery fees in the same manner as applications 
subject to cost recovery fees. However, the Forest Service cannot 
commit to the customer service standards for these applications since 
the resources necessary to process them will be subject to the 
availability of appropriated funding.
    Comment. The agency must be accountable for the cost recovery funds 
it receives. Many respondents said that they were skeptical that the 
Forest Service would be accountable for funds received from cost 
recovery. Some respondents supported the cost recovery concept with the 
expectation that the funds collected would result in an increased level 
of service and equal access by all submitting applications. Others 
stated that the fees collected must be commensurate with the agency's 
cost of processing an application or monitoring an authorization.
    Response. The Department shares these respondents' concerns. All 
cost recovery funds will remain at the local agency offices that 
collect them and will be used specifically for processing applications 
or monitoring authorizations. The agency will develop performance 
metrics to measure costs and timeframes for processing applications at 
the unit level against specified performance standards and report these 
to Congress as required by Section 331 of the Interior and Related 
Agencies Appropriations Act of November 29, 1999 (Pub. L. 106-113). The 
agency will also provide local offices with guidance on fiscal 
accountability and auditing processes specific to cost recovery. The 
agency will implement direction and train agency personnel on fiscal 
and accounting procedures for determining, collecting, and spending 
cost recovery funds. In addition, applicants and holders will be given 
the opportunity to dispute assessments of processing and monitoring 
fees. The final rule will provide applicants and holders with the 
opportunity to dispute a cost recovery fee, on a case-by-case basis, by 
submitting a written request to change the fee category or estimated 
costs to the immediate supervisor of the authorized officer who 
determined the fee category or estimated costs.
    To those respondents who doubted that cost recovery would improve 
the Forest Service's responsiveness to special use applicants, the 
Department reiterates its previously stated customer service standards. 
Under these standards, authorized officers will be directed to 
communicate with applicants within a specified time frame about the 
status of processing their applications and to estimate when a

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decision will be made regarding their applications.
    Comment. Holders already pay a land use fee that should include the 
costs of application processing and permit monitoring. Many respondents 
stated that the annual land use fee they pay covers the agency's cost 
to process their applications and monitor their authorizations. Some 
respondents believed that cost recovery fees constitute a tax on 
applicants and holders and suggested that the agency recover its costs 
through improved efficiency. Recreation residence authorization holders 
stated that they were being unfairly singled out in the proposed 
regulation because they must pay a higher annual land use fee due to 
recent appraisals of the market value of their use of Federal lands, 
and under the proposed rule also would be expected to pay cost recovery 
fees. Holders of outfitting and guiding permits noted that they already 
pay 3 percent of their gross revenues to the agency to operate a 
business on NFS lands, and that this payment should be adequate to 
cover the cost to process their applications and monitor their 
authorizations.
    Response. The statutes that authorize cost recovery and Office of 
Management and Budget (OMB) Circular No. A-25, which implements the 
IOAA, clearly distinguish between land use fees and administrative 
costs. Land use fees are charged to the holder of a special use 
authorization based upon the market value of the holder's use and 
occupancy of Federal lands. Land use fees do not include the agency's 
administrative costs to process applications or monitor authorizations. 
Section 251.58(a) of the final rule specifically states that cost 
recovery fees are separate from any land use fees charged for the use 
and occupancy of NFS lands. Additionally, almost all the land use fees 
the Forest Service collects cannot be retained and expended by the 
agency and therefore are not available for processing or monitoring 
special use authorizations.
    In most cases, the effect of the cost recovery regulations on 
recreation residence permit holders will be minimal and considerably 
less than the effects on applicants for and holders of authorizations 
for most of the other special uses covered by the final rule. The final 
rule exempts recreation special use applications or authorizations 
requiring 50 hours or less to process or monitor. Recreation residences 
are defined as a recreation special use in the agency's directive 
system. Recreation residence special use permits are typically issued 
for a 20-year term. Upon expiration of a recreation residence permit, a 
new permit is, in all but a few cases, issued to the existing holder 
with no changes in the current use and occupancy. Thus, in almost every 
case, an application for a new recreation residence permit will require 
50 hours or less to process and will, therefore, be exempt from a 
processing fee. In addition, under the final rule, a recreation 
residence permit holder will be assessed a monitoring fee only if 
monitoring compliance with the holder's authorization requires more 
than 50 hours.
    Comment. Applicants and holders already pay taxes that should cover 
the agency's cost to process applications and monitor compliance with 
authorizations. These respondents believed that their Federal taxes, 
paid into the U.S. Treasury and Congressionally appropriated for 
Federal programs, should be sufficient for the Forest Service to 
administer its special uses program. Respondents stated they would be 
taxed twice if required to pay cost recovery fees. Some respondents 
believed that cost recovery fees should be levied on commercial or 
profit-making entities, but that nonprofit entities should not have to 
pay because they are otherwise relieved of taxation.
    Response. The Department disagrees with the respondents. The 
language in applicable statutes and OMB Circular No. A-25 is clear: 
identifiable recipients who receive specific benefits or services from 
a Federal agency beyond those received by the public generally may be 
charged for those benefits or services. The Department believes that 
the promulgation of this final rule is fully consistent with applicable 
law and that no revisions to the rule or other actions are needed to 
address these concerns. Like other entities, nonprofit entities may 
qualify for a waiver of cost recovery fees, as described in the section 
of the preamble pertaining to Sec.  251.58(f) of the final rule.
    Comment. The value of cost recovery is limited if the agency is not 
allowed to keep the funds and use them locally to administer the 
special uses program. Respondents believed that cost recovery fees 
would not improve the agency's performance in processing applications 
or monitoring authorizations if cost recovery fees were not available 
to the agency or retained at the administrative unit where they were 
generated. Several respondents said that there should be strict limits 
on the amount of overhead included in determining cost recovery rates.
    Response. The Department agrees with the respondents on these 
issues. The purpose of the cost recovery regulations is undermined if 
cost recovery fees are deposited into the U.S. Treasury and cannot be 
used to process applications more promptly and to monitor 
authorizations more effectively. The preamble to the proposed rule 
stated that the Forest Service did not have the authority to retain and 
spend cost recovery fees collected by the agency. Since the publication 
of the proposed rule, the agency has obtained statutory authority to 
retain and spend cost recovery fees it collects pursuant to this rule 
to cover costs incurred by the agency for processing special use 
applications and monitoring compliance with special use authorizations. 
This authority is contained in the Interior and Related Agencies 
Appropriations Act passed on November 29, 1999 (Pub. L. 106-113), which 
provides for Forest Service appropriations. Section 331 of the act 
authorized the Secretary to develop and implement a pilot program for 
the purpose of enhancing Forest Service administration of rights-of-way 
and other land uses through September 30, 2004. Section 345 of the 
Consolidated Appropriations Act for fiscal year 2005 (Pub. L. 108-447, 
Division E) extended this authority through September 30, 2005. Section 
425 of the Interior and Related Agencies Appropriations Act for fiscal 
year 2006 (Pub. L. 109-54) extended this authority through September 
30, 2006. With this pilot authority and upon adoption of this final 
rule, the agency will have the necessary tools to assess, collect, and 
spend cost recovery fees at the administrative unit where the special 
use processing and monitoring work is performed.
    The Department agrees with those respondents who expressed a 
concern about excessive overhead costs associated with cost recovery 
fees. For minor processing and monitoring categories 1 through 4 in the 
final rule, overhead costs are included in the flat fee rates 
established for each category. The only determining factor for 
establishing the appropriate minor fee category will be the estimated 
number of agency personnel hours needed to process an application or 
monitor an authorization. For major category 5 and category 6 
processing and monitoring cases, the overhead rate will be established 
using the current nationwide average overhead rate for the Forest 
Service. For calendar year 2005, this rate is 17.8 percent. It is the 
goal of the Forest Service to reduce the overhead rate to approximately 
10 percent by 2008. The overhead rate and yearly updates to it will be 
included in the agency's directive system.
    Comment. Adoption of cost recovery regulations will not resolve the 
delays in processing applications or improve

[[Page 8896]]

agency performance; the agency must streamline the application process 
and reduce the amount of environmental documentation required before 
reaching a decision on whether to approve an application. This was a 
significant concern for respondents and generated more comments than 
any other issue. Respondents believed that the application process was 
too burdensome, particularly the requirements that stem from NEPA, and 
stated that the agency should not require applicants to fund this 
burdensome process. Some respondents believed that cost recovery 
regulations could be used by the Forest Service, special interest 
groups, or individuals to prevent or dissuade special use permitting 
activity on NFS lands. Respondents also referred to ``scope creep,'' a 
term they used to describe use of processing fees to conduct 
environmental analysis and documentation beyond that necessary to reach 
a decision on the application being processed. These respondents urged 
that the regulations place limits on the scope and cost of 
environmental studies.
    Response. The Department recognizes these respondents' concerns. 
The Department emphasizes the significance of the amendments made to 
the special use regulations in November 1998 to 36 CFR part 251, 
subpart B, and firmly believes that those streamlining regulations 
should allay most of the respondents' concerns about delays and 
excessive costs in processing applications. The Department points out 
that the Government-wide requirements for environmental analysis and 
documentation for activities that impact Federal lands are well 
established and must be strictly observed. The agency has implemented 
those requirements through procedures issued in its directive system. 
The agency acknowledges that its NEPA procedures regarding special use 
application processing may not provide sufficient flexibility to 
expedite processing and prevent excessive analysis. Therefore, the 
agency revised its environmental analysis requirements by adding two 
new categorical exclusion categories for certain special use 
authorization actions to its environmental policy and procedure 
handbook (FSH 1909.15 ) on July 6, 2004 (69 FR 40591). This revision 
streamlines NEPA compliance in the special use application process 
within the context of statutory and regulatory requirements. Further, 
the final cost recovery regulations include guidance at 36 CFR 
251.58(c) on processing requirements. Additional direction in the 
agency's directive system, employee training during implementation of 
the final rule, and internal agency oversight will specifically focus 
on this concern to ensure consistency in assessing a processing fee 
that is based only on costs necessary for processing an application.
    Comment. Adoption of the cost recovery regulations would violate 
other Federal laws and would conflict with the Forest Service's own 
regulations at 36 CFR 251.54(g)(2). Respondents stated that the agency 
lacks the authority to promulgate cost recovery regulations and in so 
doing would violate one or more Federal laws. For example, a national 
trade association stated that the agency violated the Administrative 
Procedure Act (APA) in not giving notice that it would consider public 
comments submitted in response to BLM's proposed amendments to its cost 
recovery regulations.
    Another respondent stated the proposed rule would violate the Civil 
Rights Act of 1964 because it would impose fees on low-income Hispanic 
families who seek authorizations to gather on NFS lands. Other 
respondents stated that the regulation would violate the IOAA because 
costs and activities that benefit a broad segment of the public, such 
as environmental protection, cannot be passed on to individual 
applicants and holders. Respondents also cited the IOAA in claiming 
that water storage facilities on NFS lands are specifically exempted 
from cost recovery fees.
    Several respondents stated that the Forest Service, not the 
applicant, is responsible for costs associated with NEPA compliance. 
These respondents supported this position by citing 36 CFR 
251.54(g)(2), which states that ``the authorized officer shall evaluate 
the proposed use for the requested site, including effects on the 
environment.''
    Response. The IOAA authorizes all agencies of the Federal 
Government to recover costs associated with providing specific benefits 
and services to an identifiable recipient. This authority applies to 
costs incurred by the Forest Service in processing applications for 
special use authorizations, including costs incurred in completing 
analyses required by NEPA and the Endangered Species Act. These studies 
are conducted to meet legal requirements in processing applications and 
monitoring authorizations, which are submitted on behalf of individuals 
or entities, not the public. Therefore, the Department disagrees with 
respondents who stated that the proposed cost recovery rule violates 
the IOAA. It is appropriate to require applicants for special use 
authorizations to provide information necessary to process their 
applications. While the Forest Service must comply with NEPA and other 
statutes in processing special use applications, the costs associated 
with complying with those statutory requirements in that context are 
incurred for the benefit of the applicants.
    The IOAA authorizes Federal agencies to recover all types of costs 
associated with providing goods and services that benefit an 
identifiable recipient. The IOAA does not limit cost recovery to 
certain types of goods and services and therefore does not preclude 
recovery of processing and monitoring costs associated with special use 
authorizations for water storage facilities. Moreover, the cost 
recovery provisions in FLPMA also apply to processing and monitoring 
costs associated with special use authorizations for water storage 
facilities. FLPMA's cost recovery provisions apply to rights-of-way, 
which, as defined in FLPMA, include authorizations for water uses.
    BLM and the Forest Service published separate proposed cost 
recovery rules in the Federal Register for public notice and comment 
(64 FR 32106, Jun. 15, 1999 and 64 FR 66342, Nov. 24, 1999, 
respectively). BLM's proposed rule addressed cost recovery procedures 
specific to applications and authorizations for rights-of-way 
authorized by FLPMA and the MLA. Nevertheless, because of the 
significant overlap in the subject matter of the agencies' proposed 
rules, each agency notified the public that the Forest Service would 
consider comments on BLM's proposed rule, which was published first. 
Therefore, both BLM and the Forest Service complied with the rulemaking 
requirements in the APA.
    Subsequently, BLM published another proposed rule in the Federal 
Register (65 FR 31234, May 16, 2000) for public notice and comment that 
proposed changes to BLM's cost recovery regulations for special 
recreation permits. To maximize consistency between the agencies, the 
Forest Service also considered comments received by BLM regarding cost 
recovery for special recreation permits. On October 1, 2002, BLM 
published in the Federal Register (67 FR 61732) the final rule amending 
its cost recovery regulations for special recreation permits. In that 
rule, BLM changed its threshold for exempting special recreation permit 
applicants and holders from processing and monitoring fees, from cases 
where BLM's costs to process an application or monitor an

[[Page 8897]]

authorization do not exceed $5,000 to cases where an application or 
authorization requires more than 50 hours to process or monitor. 
Applicants for and holders of a BLM special recreation permit are now 
assessed cost recovery fees only when BLM requires more than 50 hours 
to process an application or monitor a permit. This final rule 
establishes the same threshold for assessing a processing or monitoring 
fee for all Forest Service recreation special uses. A further 
discussion of consistency between the Forest Service and BLM cost 
recovery regulations is found in the section of the final rule entitled 
``Response to Comments on the Supplementary Information Section in the 
Preamble to the Proposed Rule.''
    The Department disagrees with the respondent who stated that the 
cost recovery regulation violates the Civil Rights Act of 1964. 
Families gathering on NFS lands will not have to pay a processing or 
monitoring fee under the final rule. A family gathering does not 
require a special use permit unless it involves 75 or more people (36 
CFR 251.50(c)(3) and 251.51). Moreover, such a family gathering would 
constitute a noncommercial group use, and the final rule exempts 
noncommercial group uses from cost recovery fees. In addition, any cost 
recovery fees applicable to other special uses under the final rule 
will be assessed in a fair and nondiscriminatory manner.
    Comment. Adoption of cost recovery regulations will adversely 
impact small businesses operating on the National Forests and/or will 
impact the economies of local communities. These respondents, mostly 
those providing recreation services to the public, believed that the 
regulations would increase the cost of doing business on NFS lands and 
would force current and future holders of authorizations off those 
lands. Other respondents felt the potential loss of business through 
higher costs would ultimately impact those local communities where the 
businesses are headquartered. Some respondents suggested that the 
agency could prevent such an eventuality by asking Congress for the 
necessary funds to process special use applications and monitor special 
use authorizations.
    Response. The Department recognizes these respondents' concerns but 
notes that implementation of these regulations, coupled with the 
recently adopted streamlining regulations, will allow the agency to 
become more efficient and cost-effective in administering its special 
uses program. Applicants and holders will directly benefit from these 
efficiencies.
    The final rule exempts individuals and entities, including small 
businesses, from cost recovery fees for recreation special use 
applications and authorizations requiring 50 hours or less to process 
or monitor. The final rule also exempts from processing or monitoring 
fees those applications or authorizations that take one hour or less to 
process or monitor. In addition, the basis for assessing a monitoring 
fee has been limited in the final rule.
    For nonrecreation special use applications and authorizations 
requiring 50 hours or less to process or monitor, the cost recovery 
fees, which will be determined from the applicable rate in a schedule, 
will be modest and should not adversely impact small businesses, other 
entities, or individuals who wish to use Federal lands for personal or 
commercial gain.
    For example, an application that is subject to a categorical 
exclusion pursuant to FSH 1909.15, section 31, most likely will take 50 
hours or less to process. In the absence of extraordinary 
circumstances, i.e., a significant environmental effect on certain 
sensitive resource conditions, FSH 1909.15, section 31, categorically 
exempts from documentation in an environmental assessment or 
environmental impact statement (1) approval, modification, or 
continuation of minor, short-term (1-year or less) special uses of NFS 
lands; (2) approval, modification, or continuation of minor special 
uses of NFS lands that require less than 5 contiguous acres of land; 
and (3) issuance, amendment, or replacement of a special use 
authorization that involves only administrative changes (such as a 
change in ownership of the authorized facilities or a change in control 
of the holder) and does not involve any changes in the authorized 
facilities, an increase in the scope or intensity of the authorized 
activities, or an extension of the term of the authorization, and the 
applicant is in full compliance with the terms and conditions of the 
authorization.
    For processing or monitoring fees for more complex applications or 
authorizations, the authorized officer will estimate the agency's full 
actual costs. The Forest Service has prepared a cost-benefit analysis 
of the final rule, which concludes that the final rule could have an 
economic impact on small businesses if their application or 
authorization requires a substantial amount of time and expense to 
process or monitor. These entities could be economically impacted, for 
example, when they apply for agency approval to expand or change their 
authorized use, or when an expired authorization prompts them to apply 
for a new authorization to continue their use and occupancy, and the 
application requires a substantial amount of time and expense to 
process.
    Because for major category processing and monitoring fees, the 
authorized officer will estimate the agency's full actual costs, it is 
difficult to quantify the impacts of those fees programmatically. 
However, the agency will endeavor to minimize these costs. In addition, 
the final rule provides all applicants and authorization holders with 
the opportunity to discuss with the authorized officer determinations 
that are made to establish a cost recovery fee category (for minor 
processing and monitoring cases) or estimated costs (for major category 
processing and monitoring cases). The final rule also provides 
applicants and authorization holders the opportunity to request that 
the authorized officer's immediate supervisor review an authorized 
officer's determination of a fee category or estimated costs. Based on 
the foregoing, the Department believes that cost recovery fees adopted 
by this final rule will not broadly impact or pose an economic barrier 
to local economies.
    It is not reasonable to assume that Congress will support 
additional funding for the agency's special uses program as an 
alternative to cost recovery. In recent years, Federal agencies' 
appropriations have remained relatively constant or have decreased. 
Congress has, however, provided alternative authorities to fund 
government programs that are equitable and fiscally and 
administratively sound. The Department firmly believes that the cost 
recovery provisions contained in this final rule exemplify this 
approach. Respondents raised a similar issue regarding regulatory 
impact that is discussed in the following section concerning comments 
on the preamble to the proposed rule.

Response to Comments on the Supplementary Information Section in the 
Preamble to the Proposed Rule

    Many respondents commented on the supplementary information section 
in the preamble to the proposed rule, which outlined the agency's 
expected procedures for implementing cost recovery and explained the 
provisions of the proposed rule. The preamble also provided readers 
with a table showing the Forest Service's and BLM's proposed processing 
and monitoring fee rates.
    Comment. The information in the preamble is vague and open-ended. 
Respondents stated that the descriptions

[[Page 8898]]

for the specific sections of the proposed rule were insufficient. A few 
were concerned that certain types of special uses were not addressed, 
leaving the respondents uncertain as to whether they would be affected 
by the proposed rule. Others were uncertain whether cost recovery would 
apply to existing applications and authorizations on file with the 
agency. Some respondents cited the need for clarification of certain 
terms used in the preamble. Several respondents said that the 
definition for authorized officer gives too much discretion to the 
deciding official in determining cost recovery fees. Respondents 
questioned the definition for monitoring in the proposed rule and 
stated that the term ``reasonable costs'' as discussed in the preamble 
and fee schedule was vague. Use of the term ``noncommercial group 
uses'' caused confusion among several respondents as to its 
applicability to special uses. Some respondents commented that the term 
``right-of-way'' in FLPMA refers only to roads, and since the right-of 
way granted to these respondents is not a road, it is not subject to 
the cost recovery provisions of FLPMA or any other statute.
    Response. The proposed language at 36 CFR 251.58(b) outlined the 
situations in which a cost recovery fee would be assessed. In response 
to concerns about the scope of the proposed rule, the Department is 
tightening and more clearly stating the types of applications and 
authorizations that will be subject to processing and monitoring fees.
    This final rule will be incorporated into existing regulatory text, 
which already includes the definitions for authorized officer, group 
use, and noncommercial use or activity at 36 CFR 251.51. Nevertheless, 
the Department recognizes the need for clarification of some of the 
terms and processes described in the preamble of the proposed rule. The 
final rule has been carefully reviewed and revised to ensure that the 
purpose and intent of cost recovery are fully documented and explained 
and that respondents' concerns about clarity of terms are addressed.
    The authorized officer has a specific role within the Forest 
Service as the agency official delegated the authority to perform the 
duties and responsibilities for managing an administrative unit of NFS 
lands. Specific to the special uses program, the Chief of the Forest 
Service is responsible for accepting and evaluating special use 
applications and issuing, amending, renewing, suspending, or revoking 
special use authorizations. This authority is delegated to the 
appropriate line officer at the Regional, Forest, or District level as 
provided in 36 CFR 251.52. This line officer, or authorized officer, 
has the authority to issue special use authorizations and assess land 
use fees for use and occupancy of NFS lands and, once this final rule 
goes into effect, will have the authority to determine and assess 
processing and monitoring fees associated with issuance and 
administration of those authorizations. The Department has addressed 
respondents' concerns that too much authority would rest with the 
authorized officer in determining processing and monitoring fee 
categories and estimated costs by providing in the final rule that 
applicants and holders may request a review of these determinations by 
the authorized officer's immediate supervisor.
    Section 251.51 of the current special use regulations contains 
definitions for group use and noncommercial use or activity. The term 
``group use'' applies to those activities that involve a group of 75 or 
more people, either as participants or spectators; the term 
``noncommercial use or activity'' is a use or activity that does not 
involve the charging of an entry or participation fee or the sale of a 
good or service as its primary purpose. The phrase ``noncommercial 
group use'' in the proposed rule combined the two terms to identify a 
specific type of special use. This type of activity may involve the 
exercise of First Amendment rights. Federal court decisions required 
the Department to amend its special use regulations with regard to this 
type of activity to meet First Amendment requirements. These revisions 
were made to 36 CFR 251.51 and 251.54 in accordance with the court 
decisions (60 FR 45293, Aug. 30, 1995).
    The definition for monitoring has been revised in the final rule to 
address respondents' concerns about the activities included in 
monitoring, specifically for minor category cases, and is further 
explained in the specific comments on 36 CFR 251.51.
    The term ``reasonable cost'' is used in section 504(g) of FLPMA, 
which provides that the Secretary concerned may, by regulations or 
prior to promulgation of such regulations, require an applicant for or 
holder of a right-of-way to reimburse the United States for all 
reasonable administrative and other costs incurred in processing an 
application for the right-of-way, and in monitoring the construction, 
operation, and termination of the facilities authorized pursuant to the 
right-of-way. Applicants for and holders of authorizations issued under 
the MLA may be required to pay full actual costs instead of full 
reasonable costs.
    Section 4 of the preamble to the proposed rule (64 FR 66342) 
clearly stated that processing fee provisions would apply to all 
special use applications, not just to applications for rights-of-way 
under FLPMA. In addition, section 501(a) of FLPMA defines right-of-way 
as a reservoir, canal, ditch, flume, lateral, pipe, pipeline, tunnel, 
facility for the impoundment, storage, transportation, or distribution 
of water, electronic communications use, road, trail, railroad, 
tramway, or airway. Therefore, the definition for right-of-way under 
FLPMA includes more than roads and other linear uses. In addition, 
FLPMA is just one of the numerous statutes that authorize use and 
occupancy of NFS lands.
    Comment. If a special use provides a public benefit, it is not 
subject to the cost recovery provisions in the IOAA and FLPMA. Several 
respondents, commenting on the listing in the preamble of the statutory 
authorities governing special uses administration, stated that certain 
water uses and recreation residences are not subject to the cost 
recovery requirements of the final rule because these uses provide 
benefits to the public.
    Response. This comment relates to the concern addressed previously 
about violation of Federal statutes. The Department reiterates that 
this final cost recovery rule is well founded in law. The IOAA 
authorizes all agencies of the Federal Government to recover costs 
associated with providing specific benefits and services to an 
identifiable recipient, including applicants for and holders of water 
use and recreation residence special use authorizations. Additional 
authority to recover processing and monitoring costs is provided by 
section 504(g) of FLPMA and section 28(l) of the MLA. There is no 
exemption in these statutes for uses that provide a public benefit in 
addition to benefiting identifiable recipients.
    Comment. Facilities authorized on NFS lands that are financed, or 
eligible to be financed, with a loan pursuant to the Rural 
Electrification Act of 1936 (REA) should be exempted from cost recovery 
fees. The preamble to the proposed rule stated that the provisions of 
the cost recovery regulations would apply in situations where the land 
use fee may be exempted or waived. The preamble specifically mentioned 
facilities financed or eligible to be financed under the REA as an 
example where the land use fee is exempted, but a cost recovery fee 
would be assessed.

[[Page 8899]]

Several REA entities and their national representatives commented that 
a 1984 amendment to FLPMA specifically exempts REA-financed facilities 
on NFS lands from cost recovery fees. These respondents believed that 
it was the intent of Congress, in passing the 1984 amendment to FLPMA, 
to exempt these facilities from all fees, including cost recovery fees.
    Response. The Department disagrees with these respondents. The 1984 
amendment to FLPMA explicitly differentiated between a land use fee and 
an administrative fee and excluded the latter from the fee exemption 
provided for by that amendment. With respect to administrative fees, 
the proviso to the amendment stated that ``nothing in this sentence 
shall be construed to affect the authority of the Secretary granting, 
issuing, or renewing the right-of-way to require reimbursement of 
reasonable administrative and other costs pursuant to the second 
sentence of this subsection'' (43 U.S.C. 1764(g), as amended by Pub. L. 
98-300). The Department also notes that BLM has been collecting cost 
recovery fees from holders of rights-of-way for these facilities on 
public lands for many years under its cost recovery regulations. No 
revision to 36 CFR 251.51(g) of the final rule has been made to respond 
to this concern.
    Comment. Processing and monitoring fees should be displayed in 
separate schedules. Several respondents stated that displaying both 
processing and monitoring fees in the same schedule was confusing 
because it appeared to link the two fees, when in fact they were not 
linked. They recommended that the two types of fees be displayed in 
separate schedules.
    Response. The Department concurs with this recommendation. The 
processing and monitoring fees that appear in section 3 of the preamble 
are displayed in separate schedules. These separate schedules will be 
incorporated into the Forest Service's directive system.
    Comment. The proposed regulations constitute a significant rule. 
Several respondents disagreed with the agency's conclusion in the 
preamble that the proposed rule is not significant and would not have 
an annual effect of $100 million or more on the economy or adversely 
affect productivity, competition, jobs, the environment, public health 
or safety, or State or local governments. These respondents believed 
that the proposed regulations could impose substantial financial 
burdens on small businesses and their customers, which could hurt local 
economies. Therefore, the proposed regulations should be subject to OMB 
review. In a related concern, a few respondents stated that the agency 
failed to consider the economic impacts of the proposed rule on small 
entities pursuant to the Regulatory Flexibility Act.
    Response. The criteria for determining whether a proposed rule is 
significant are prescribed by United States Department of Agriculture 
procedures and Executive Order 12866 on regulatory planning and review. 
The Department has estimated that the annual cost recovery fees 
collected under the provisions of this final rule will be less than $10 
million, well below the $100 million threshold for significance of a 
rule.
    The Forest Service's final rule has been deemed significant under 
the EO 12866. Accordingly, the agency has prepared a programmatic cost-
benefit analysis and a threshold Regulatory Flexibility Act analysis 
for the final rule, as referenced in section 5 of the supplementary 
information section in the preamble of this rule. The threshold 
Regulatory Flexibility Act analysis was conducted to ascertain if the 
final rule would have a significant economic impact on a substantial 
number of small entities and if so, if more detailed analyses were 
required pursuant to the Regulatory Flexibility Act. Based on the cost-
benefit and threshold Regulatory Flexibility Act analyses, the 
Department believes that the final rule will not have a significant 
economic impact on a substantial number of small entities.
    Comment. Greater use should be made of master agreements. Some 
respondents, particularly large commercial entities holding several 
authorizations involving several sites on NFS lands, advocated use of 
master agreements to allow for processing multiple applications and 
monitoring multiple authorizations through a single document. These 
respondents suggested that master agreements should be issued for a 10-
year period and should cover an entire Forest Service administrative 
unit, up to and including a Regional unit. Some suggested that master 
agreements provide for monitoring by the holder, rather than by the 
Forest Service.
    Response. The Department agrees that there should be greater use of 
master agreements. The Forest Service, as part of its efforts to 
increase the efficiency and cost-effectiveness of its special uses 
program, will seek to expand use of master agreements with the 
implementation of this final rule. In addition, the final rule has been 
modified to include provisions for master agreements in the monitoring 
fee schedules. The Department does not believe, however, that master 
agreements should provide for monitoring solely by the holder, rather 
than by the Forest Service. Master agreements may provide for some 
monitoring tasks to be performed by the holder. Any monitoring tasks 
performed by the holder under a master agreement will not be subject to 
cost recovery fees under the final rule.
    Comment. Greater consistency is needed between the Forest Service 
and BLM on cost recovery. Respondents stated that there were 
inconsistencies between the regulations proposed by each agency and 
urged that the final regulations be made consistent. The inconsistency 
that respondents mentioned most often was that under its proposed rule, 
BLM would not assess cost recovery fees for outfitters and guides 
operating on BLM-administered lands. The same respondents believed that 
BLM is more responsive to requests to use BLM-administered lands.
    Response. The Forest Service and BLM sought consistency between the 
Forest Service's proposed cost recovery rule (64 FR 66342, Nov. 24, 
1999) for special uses and BLM's proposed cost recovery rule for its 
right-of-way program (64 FR 32106, Jun. 15, 1999) in terms of schedule 
categories, rates, definitions, and other matters relating to 
implementation of cost recovery. However, the Department agrees that 
there can be greater consistency between the Forest Service's and BLM's 
cost recovery rules, and the final rules of both agencies have been 
modified to achieve that goal, as discussed below.
    Subsequent to publication of the Forest Service's proposed cost 
recovery rule for special uses and BLM's proposed regulations for its 
right-of-way program, BLM published another proposed cost recovery rule 
in the Federal Register (65 FR 31234, May 16, 2000) to amend cost 
recovery requirements for its special recreation permit program in 43 
CFR part 2900. In their proposed rule, BLM proposed to change its 
threshold for exempting special recreation permit applicants and 
holders from processing and monitoring fees where BLM's costs to 
process an application or monitor an authorization do not exceed 
$5,000, to cases where an application or authorization requires more 
than 50 hours to process or monitor. The proposed rule also stated that 
full costs would be charged for special recreation permit applications 
or authorizations that require over 50 hours to process or monitor. A 
final cost recovery rule for BLM's special recreation permits that 
adopted this new

[[Page 8900]]

threshold was published in the Federal Register on October 1, 2002 (67 
FR 61732).
    To maximize consistency with BLM, the Department is adopting the 
same approach for Forest Service recreation special uses in this final 
rule. Recreation special uses are identified in FSH 2709.11, chapter 
50, by use codes 111 through 165. Recreation special use applications 
or authorizations that require 50 hours or less to process or monitor 
will be exempt from cost recovery fees. This change from the proposed 
rule also addresses the concerns that many small businesses expressed 
regarding the financial hardship that would be created by the cost 
recovery rule if it were adopted as originally proposed. Other 
revisions to the final rule that provide for greater consistency 
between the Forest Service and BLM are addressed in the response in the 
following comment.
    Comment. Some respondents recommended that the fee rates and 
schedules be revised. There were 7 respondents who thought the proposed 
fees were acceptable, 20 who thought the fees were too high, and 4 who 
thought the fees were too low. Forty-one respondents offered other 
comments on the proposed cost recovery fees presented in the schedules 
in the preamble of the proposed rule. Several respondents stated that 
the fees for category A, the minimal impact processing fee category in 
the proposed rule, were too high considering the processing effort 
required. A fee of $25 was suggested as an alternative. Others 
suggested that subcategories of category A be established that would 
recognize that some actions have substantially no impact. Others 
suggested that issuance of a temporary permit (with less than a 1-year 
term), issuance of a new permit due to a change in ownership, and 
renewal of a permit were actions with minimal impact that should have a 
flat processing fee of $75. One respondent stated that there is a 
disparity in the hourly rate for each processing and monitoring 
category when that rate is determined by dividing the rate in each 
category by the maximum number of hours for each category. Respondents 
also suggested that the table display a fee in the proposed policy for 
monitoring category B-IV and that monitoring fees be limited to 
construction or reconstruction activities. Several respondents 
suggested that the Department add a master agreement category for 
monitoring.
    Response. The Forest Service proposed two separate fee schedules to 
track the two separate fee schedules in BLM's cost recovery rule for 
its right-of-way program: One for applications and authorizations 
subject to the MLA, and one for applications and authorizations subject 
to FLPMA. Separate fee schedules were established because of the 
differences in the legal standard for calculating cost recovery fees 
under the MLA and FLPMA. The preamble of the proposed rule also stated 
that the Forest Service proposed to adopt cost recovery fee rates 
similar to BLM's proposed fee rates for processing applications and 
monitoring authorizations because (1) the Forest Service's costs to 
process applications and monitor authorizations for use and occupancy 
of NFS lands are comparable to BLM's costs to process applications and 
monitor authorizations for rights-of-way on BLM-administered lands and 
(2) the public is better served by maintaining consistency in 
administration of special uses and rights-of-way by the Forest Service 
and BLM. To maximize interagency consistency, the fee schedules and 
rates established in this final rule are the same as those adopted by 
BLM in its final right-of-way rule published in the Federal Register 
(70 FR 20969, Apr. 22, 2005). Changes to the fee schedules and rates in 
the Forest Service's proposed rule are discussed below.
    In the preamble of its final rule, BLM acknowledged that in 
establishing processing and monitoring fees under FLPMA, the agency is 
required to consider the reasonableness factors in section 304(b) of 
FLPMA. These factors include an agency's actual costs, the monetary 
value of the rights and privileges sought, that portion of the costs 
which may be incurred for the benefit of the general public interest, 
the public service provided, the efficiency of the Government 
processing involved, and other factors relevant to determining the 
reasonableness of costs.
    However, BLM also stated that in its proposed rule (64 FR 32110) it 
recognized that ``for all but complex projects * * * the reasonability 
factors have little or no effect on actual costs.'' BLM's final rule 
reflects this conclusion. In its final rule, BLM determined that for 
categories 1 through 4, processing and monitoring fees under FLPMA are 
identical to processing and monitoring fees under the MLA, which does 
not require consideration of reasonableness factors in establishing 
cost recovery fees. For example, a category 2 processing fee for 
applications submitted under authorities other than the MLA is 
identical to a category 2 processing fee for applications submitted 
under the MLA. A category 3 monitoring fee for authorizations issued 
under authorities other than the MLA is identical to a category 3 
monitoring fee for authorizations issued under the MLA.
    BLM supported this analysis by citing a 1996 Solicitor's Opinion on 
cost recovery (M-36987), entitled ``BLM's Authority to Recover Costs of 
Minerals Document Processing.'' That opinion clarified that ``[a] 
factor such as the `monetary value of the rights and privileges sought 
by the applicant' could, when that value is greater than BLM's 
processing costs, be weighed as an enhancing factor, offsetting a 
diminution due to another factor such as `the public service provided' 
'' (see M-36987 at 36).
    Conversely, BLM's final rule acknowledged that there is more likely 
to be a disparity between FLPMA and MLA fees for category 5 and 
category 6 cases, which are equivalent to the agency's full costs. 
Accordingly, BLM's final rule establishes one schedule for minor 
category processing fees and one schedule for minor category monitoring 
fees, both of which are based on actual costs. In addition, BLM's final 
rule establishes two schedules for major category processing fees and 
two schedules for major category monitoring fees to differentiate 
between applications or authorizations subject to the MLA, for which 
full actual costs will be charged, and applications and authorizations 
subject to FLPMA, for which full reasonable costs will be charged.
    In the preamble of its proposed rule, the Department acknowledged 
that the proposed fee schedules and rates for categories B-I through B-
IV (categories 1 through 4 in the final rule), would be identical to 
those proposed by BLM and are based on the cost data that BLM has 
collected to support those schedules and rates. Therefore, it is 
logical for the Department to adopt the same fee schedules and rates 
established in BLM's final rule. Thus, the Department's final rule 
establishes one schedule for minor category processing fees and one 
schedule for minor category monitoring fees, both of which are based on 
actual costs. Also consistent with BLM, the Department's final rule 
establishes two schedules for major category processing fees and two 
schedules for major category monitoring fees to differentiate between 
applications or authorizations subject to the MLA, for which full 
actual costs will be charged, and applications or authorizations 
subject to other authorities, for which full reasonable costs will be 
charged.
    Several respondents thought that the rates in the Department's 
proposed rule (64 FR 66342) were either too high or too low. However, 
none of these

[[Page 8901]]

respondents offered documentation or other information as to what the 
rates should be.
    The Department concurs with the respondent who expressed concern 
about disparity among the hourly rates for the minor categories in the 
processing and monitoring fee schedules. BLM received a similar comment 
on its proposed regulations for its right-of-way program (64 FR 32106). 
In response to those comments, BLM and the Department revised their 
minor category rates.
    In its final rule, BLM defined each minor processing and monitoring 
category by the estimated number of hours needed to process or monitor 
an application or authorization. In doing so, BLM needed to determine a 
mean hour or average number of hours for processing and monitoring for 
each category. For example, for category 1 the mean hour is 4.5; for 
category 2 the mean hour is 16; for category 3 the mean hour is 30; and 
for category 4 the mean hour is 43.
    BLM derived a mean per-hour rate using category 4 (which in the 
Forest Service proposed rule was processing Category B-III) and 
determined the mean per-hour rate to be $21.46 (which reflects actual 
costs based on BLM field studies). BLM then multiplied the mean hour in 
each category by the same mean per-hour rate, to ensure that each minor 
category is cost-weighted the same. Multiplying the mean hour for each 
category by the mean per-hour rate produced the fee for each category. 
For example, the mean hour for minor category 2 (> 8 and <= 24 hours) 
is 16. Thus, the rate for minor category 2 is $21.46 multiplied by 16, 
or $343. As another example, the mean hour for minor category 4 (> 36 
and <= 50 hours) is 43. Thus, the rate for that category is $21.46 
multiplied by 43, or $923. The Department reiterates that it is 
adopting in this final rule the same rates and the same rationale for 
those rates as BLM (70 FR 20969, Apr. 22, 2005) and considers the 
changes to be within the scope of public comment on both agencies' 
proposed cost recovery rules.
    In justification of the mean hour and mean per-hour rate for each 
category, BLM stated in the preamble of its final right-of-way rule 
that the $21.46 mean per-hour rate for processing and monitoring fees 
would approximate the hourly wage in 2005 for an employee at the GS-9, 
Step 3, level. These rates compare favorably with BLM's 1987 minor 
category processing rates. These rates, if adjusted to a mean per-hour 
rate, would average $11 per mean hour, which was the hourly wage earned 
by a BLM employee in 1987 at the GS-9, Step 2, level, according to the 
1987 General Schedule. Most of BLM's right-of-way applications and 
authorizations are processed and monitored by employees who are at the 
GS-9 to GS-11 levels and who will earn between $20.02 (GS-9, Step 1) 
and $31.48 (GS-11, Step 10) per hour in 2005.
    The Department is adding a new processing fee category 1 (> 1 and 
<= 8 hours) (formerly category A for applications processed under 
authorities other than the MLA) to its minor category processing fee 
schedule to exempt those applications that require 1 hour or less to 
process and is also adding a new minor category monitoring fee category 
1 (> 1 and <= 8 hours, paragraph (d)(2)(i)) to its monitoring fee 
schedule, to provide consistency between the processing and monitoring 
fee schedules. With the addition of the new category 1 (> 1 and <= 8 
hours) to the monitoring fee schedule, the range of hours for 
monitoring fee category 2 in the final rule is revised to more than 8 
and up to and including 24 hours.
    The Department agrees with some of the concerns regarding the $75 
minimal impact category. Revisions to the minimal impact category are 
discussed further in the next section in the response to comments on 36 
CFR 251.58(b), (d), and (f) of the proposed rule. The Department also 
agrees with those who suggested the need for a master agreement 
category for monitoring, and one has been added in 36 CFR 
251.58(d)(2)(v) of the final rule.
    Additional changes to the processing and monitoring fee schedules 
in the final rule include enumerating categories by Arabic numerals 
instead of alpha-Roman numerals, establishing one minor category 
processing fee schedule and one minor category monitoring fee schedule, 
clarifying the criteria in the minimal impact processing category, and 
distinguishing between minor and major fee categories. The final 
processing and monitoring fee schedules and rates are set out in 
section 3 of the preamble. As displayed, all minor category fee rates 
are consistent with those established by BLM in its final rule and have 
been indexed using the cumulative rate of change from the calendar year 
(CY) 2004 second quarter to the CY 2005 second quarter in the Implicit 
Price Deflator-Gross Domestic Product (IPD-GDP) index to reflect CY 
2006 rates. This approach is consistent with the indexing of these 
minor category fee rates that was identified in the proposed rule, and 
will be used to index these minor category processing and monitoring 
fee rates annually for CY 2007 and beyond.
    The following tables have been prepared to display the differences 
between the proposed and final processing and monitoring fee 
categories:

------------------------------------------------------------------------
                                               Final rule  processing
    Proposed rule  processing category                category
------------------------------------------------------------------------
             Processing Fees for Minor Category Applications
------------------------------------------------------------------------
None proposed.............................  No processing fee <= 1 hour.
(A) Minimal Impact < 8 hours..............  (1) Minimal Impact > 1 and
                                             <= 8 hours.
(B-I) > 8 and <= 24 hours.................  (2) > 8 and <= 24 hours.
(B-II) > 24 and <= 36 hours...............  (3) > 24 and <= 36 hours.
(B-III) > 36 and <= 50 hours..............  (4) > 36 and <= 50 hours.
-------------------------------------------
             Processing Fees for Major Category Applications
------------------------------------------------------------------------
(C) Master Agreement......................  (5) Master Agreement.
(B-IV) > 50 hours.........................  (6) > 50 hours.
-------------------------------------------
            Monitoring Fees for Minor Category Authorizations
------------------------------------------------------------------------
None proposed.............................  No monitoring fee <= 1 hour.
-------------------------------------------
(A) Minimal Impact <8 hours...............  (1) Minimal Impact >1 and <=
                                             8 hours.
(B-I) > 8 and <= 24 hours.................  (2) > 8 and <= 24 hours.
(B-II) > 24 and <= 36 hours...............  (3) > 24 and <= 36 hours.
(B-III) > 36 and <= 50 hours..............  (4) > 36 and <= 50 hours.
-------------------------------------------
            Monitoring Fees for Major Category Authorizations
------------------------------------------------------------------------
None proposed.............................  (5) Master Agreement.
(B-IV) > 50 hours.........................  (6) > 50 hours.
------------------------------------------------------------------------

Response to Comments on Specific Sections of the Proposed Rule

    The following are comments on specific sections of the proposed 
rule and the Department's responses.
    Section 251.51 Definitions. The proposed rule added a definition 
for monitoring to ensure consistency in the identification of 
activities subject to a monitoring fee and in the determination of 
monitoring fee categories and amounts. The term encompassed monitoring 
of construction and reconstruction activities and on-site inspections 
of facilities and activities to ensure compliance with an 
authorization, and excluded costs associated with routine 
administrative actions. Activities that would be

[[Page 8902]]

included in determining monitoring costs were identified in Sec.  
251.58(d)(1) of the proposed rule.
    Comment. Several respondents stated that the definition was too 
broad and provided too much discretion to the authorized officer. Some 
stated that it should be revised to exempt routine compliance 
inspections of authorized activities and that it should be limited to 
construction activities. Others believed that the definition as 
proposed would limit cost recovery for monitoring to 1 year, and that 
it should instead be an annual event for the life of the authorization.
    Response. The Department agrees that the term ``monitoring'' in the 
proposed rule was unclear and that the activities that would be covered 
by that term could be interpreted differently than intended. In the 
proposed rule, ``monitoring'' was intended to include actions required 
to ensure compliance during construction or reconstruction of 
facilities and the estimated time needed to inspect the authorized 
facility or operations during a 1-year period. This latter provision 
concerning the estimated time needed to ensure compliance during a 1-
year period seemed to create the most confusion. Therefore, the final 
rule distinguishes between monitoring in general and the basis for 
charging monitoring fees. In the final rule, monitoring, which is an 
activity that occurs in administration of the special uses program 
generally, is defined as ``actions needed to ensure compliance with the 
terms and conditions in a special use authorization.'' The basis for 
charging a monitoring fee for minor category cases has been limited in 
the final rule to include only those activities required to monitor 
construction or reconstruction of temporary or permanent facilities and 
rehabilitation of the construction or reconstruction site. The 1-year 
restriction on charging monitoring fees has been removed, and a minimal 
impact monitoring fee category 1 (>1 and <=8) has been added. With the 
addition of the minimal impact category 1 to the monitoring fee 
schedule, the range of hours in category 2 has been modified to >8 and 
<=24, which is consistent with the range of hours established for 
processing fees.
    In the final rule, major category 5 and category 6 monitoring fees 
may include the agency's estimated cost to ensure compliance with the 
terms and conditions of the authorization during all phases of its 
term, including, but not limited to, monitoring to ensure compliance 
with the authorization during the construction or reconstruction of 
temporary or permanent facilities and rehabilitation of the 
construction or reconstruction site. For example, monitoring fees may 
be charged for communications site engineering inspections, ski area 
tramway inspections, water quality monitoring, or threatened or 
endangered species habitat monitoring. For major category 5 and 
category 6 cases, the authorized officer will estimate the agency's 
full actual monitoring costs.
    Monitoring for all categories does not include billings, 
maintenance of case files, annual performance evaluations, or scheduled 
inspections to determine compliance generally with the terms and 
conditions of an authorization.
    Based on the respondents' concerns with the provisions of Sec.  
251.58(c), the Department believes that the categories for processing 
and monitoring fees need to be clarified. Accordingly, definitions for 
major category and minor category have been added to this section. A 
minor category in the final rule refers to actions in processing 
categories 1 through 4 (in the proposed rule, categories A through B-
III for applications other than those authorized under the MLA, and B-1 
through B-III for applications authorized under the MLA) and monitoring 
categories 1 through 4 (in the proposed rule monitoring categories A 
through B-III for authorizations other than those issued under the MLA, 
and B-1 through B-III for authorizations issued under the MLA). This 
revision to the final rule incorporates several changes to Sec.  
251.58(c) and (d) to ensure that the processing and monitoring fee 
categories are correctly identified.

Section 251.58 Cost Recovery

    Section 251.58(a) Assessment of fees to recover agency processing 
and monitoring costs. This section of the rule provides an overview of 
the cost recovery concept. This section states that the agency shall 
assess processing and monitoring fees and that those fees are to be 
separate from any fees charged for use and occupancy of NFS lands. This 
section also provides broad guidance on how these fees are to be 
determined.
    Comment. Respondents asked for clarification of the provisions on 
several points. Several requested that agency overhead costs not be 
included in the fee calculation; that current authorizations, including 
renewals, be exempted from the regulations; and that authorizations 
issued annually for the same activity to the same holder, such as some 
outfitting and guiding permits, be charged a one-time processing fee 
covering a 5-year period. Finally, one respondent recommended that 
processing fees not include costs incurred in compiling baseline 
information and resource data.
    Response. The Department acknowledges these concerns, but notes 
that this section provides broad guidance and that the subsequent 
sections of the rule set forth detailed requirements. Thus, these 
issues are addressed in the response to comments in several of the 
following sections. Several other sections have been revised in 
response to these comments, and Sec.  251.58(a) of the final rule has 
been revised as needed for consistency with the revised text of those 
other sections.
    The provision in Sec.  251.58(b)(3) of the proposed rule requiring 
applicants and holders to submit sufficient information for the 
authorized officer to assess the number of hours required to process 
their applications or monitor their authorizations was revised in the 
final rule for clarity and moved to Sec.  251.58(a) because this 
requirement relates to processing and monitoring fees generally, not 
just to processing fees charged under Sec.  251.58(b)(3).
    The Department has removed provisions in Sec.  251.58(a) regarding 
fee categories and rates because they are addressed in Sec.  
251.58(c)(2), (d)(2), and (i).
    Section 251.58(b) Special use applications and authorizations 
subject to cost recovery requirements. This section of the final rule 
describes those situations in which processing and monitoring fees will 
be assessed.
    Comment. Many respondents commented on this section. Nearly all 
stated that cost recovery should not apply to those special uses that 
are currently authorized on NFS lands, including modifications of 
existing authorizations and issuance of new authorizations when 
existing authorizations terminate according to their terms or when 
there is a change in ownership or control of the authorized facilities 
or the holder of the authorization. For example, recreation residence 
holders stated that their authorization does not require them to apply 
for a new authorization upon termination of their existing 
authorization. Therefore, they should not be subject to a processing 
fee each time they seek a new authorization to continue their use and 
occupancy of NFS lands. Several respondents stated that authorizations 
the agency issues annually, such as many outfitting and guiding 
permits, should not be subject to an annual processing fee. Several 
other respondents suggested that cost recovery not apply to 
applications the agency accepted prior to adoption of the final rule. 
Some respondents stated that

[[Page 8903]]

cost recovery fees should apply only to commercial activities, or that 
the fees should be credited back to the holder upon payment of the 
annual land use fee. In addition, some respondents believed that the 
minimal impact processing fee in the proposed regulation was excessive 
in some situations. Several respondents suggested that special uses 
that take very little time to process or have minimal impact should not 
be subject to a $75 processing fee, or to any processing fee at all.
    Response. The Department believes that a number of these 
recommendations have merit. Applications that are being processed with 
funding provided by the applicant under the terms of a collection 
agreement negotiated by the agency and the applicant should proceed and 
not be disrupted by the provisions of the final rule. Similarly, in 
cases where the agency has started processing an application before 
adoption of the final rule, it is fair to complete processing the 
application with appropriated funds. However, the Department believes 
that where a proposal has been formally accepted as an application and 
the Forest Service has not yet initiated processing the application, 
the cost recovery regulations should apply. Accordingly, the final rule 
at Sec.  251.58(b)(1) has been revised to state that the processing fee 
provisions of the final rule will not apply to or supersede written 
agreements providing for recovery of processing costs executed by the 
agency and applicants prior to adoption of the final rule. Further, 
Sec.  251.58(b)(1) now states that proposals accepted as applications 
which the agency has commenced processing prior to adoption of the 
final rule will not be subject to processing fees.
    The Department also has revised Sec.  251.58(g) of the final rule 
regarding exemptions from cost recovery. The Department has amended the 
proposed rule to exempt from cost recovery all recreation special use 
applications and authorizations that require 50 hours or less to 
process or monitor. This change, as previously mentioned, is consistent 
with BLM's cost recovery rule for special recreation permits on BLM-
administered lands. This change will alleviate the concerns expressed 
by most holders of recreation residence special use permits, as an 
application for a new permit to replace an expiring permit often will 
require 50 hours or less to process.
    The Department does not agree, however, with those respondents who 
wish to exempt from cost recovery noncommercial activities other than 
noncommercial group uses (which may involve First Amendment activities 
and therefore are already properly exempted), or special uses that are 
currently authorized on NFS lands. The Department points out that it is 
inappropriate to exempt these types of uses, as they generate the same 
administrative costs to the agency as other uses. Applicants and 
holders who benefit from having the agency process their applications 
or monitor their authorizations should have to pay the costs of those 
government services. Therefore, the Department has not changed the 
provisions in the final rule for charging cost recovery fees for these 
uses.
    However, the Department has revised Sec.  251.58(b)(2) to clarify 
that the cost recovery provisions also apply to agency actions to amend 
a special use authorization, not just to proposals submitted by an 
applicant or holder to amend a special use authorization.
    Section 251.58(b)(3) of the final rule clarifies that the cost 
recovery provisions apply to agency actions to issue a special use 
authorization, such as situations where an authorization does not 
specifically require submission of an application to request 
continuation of the authorized use upon termination of the 
authorization, as is the case with recreation residence permits. In 
addition, Sec.  251.58(b)(3) of the final rule provides that cost 
recovery fees apply to applications for issuance of a new special use 
authorization after termination of an existing special use 
authorization. Section 251.58(b)(3) gives examples of events triggering 
termination, including expiration, a change in ownership or control of 
the authorized facilities, or a change in ownership or control of the 
holder of the authorization. The final rule adds the example of 
termination due to a change in ownership or control of the holder of 
the authorization.
    The Department concurs that applications and authorizations that 
take very little time to process or monitor, that is, 1 hour or less, 
should not be charged a processing or monitoring fee. The Department 
has revised the final rule at Sec.  251.58(c)(2) and (d)(2) to provide, 
in concert with BLM, that an application or authorization taking 1 hour 
or less to process or monitor is not subject to a cost recovery fee.
    Section 251.58(c) Processing fee requirements. This section 
describes those agency actions that would require applicants to pay 
processing fees. It sets forth 6 processing fee categories; describes 
how processing fees are handled when multiple related applications are 
submitted, such as when the agency solicits applications for special 
uses, and when unsolicited proposals are submitted and competitive 
interest exists; and describes how refunds of processing fees are 
handled.
    Comment. This section generated many comments that generally 
focused on the need to clarify what agency costs are properly included 
in cost recovery. Many respondents had concerns about what constitutes 
``reasonable costs'' as set forth in the fee schedule for category B-IV 
(> 50 hours) for processing and monitoring fees in the proposed rule. 
Several respondents asked for clarification concerning those situations 
where applicants respond to a Forest Service prospectus and stated that 
cost recovery should not apply in those situations. Several respondents 
stated that applicants should not be required to pay processing fees 
for environmental analysis, since it is the Federal Government's 
responsibility, or for environmental documentation beyond the scope of 
the application. Some respondents suggested that the agency might 
overcharge or overestimate processing costs and inappropriately use 
those funds to complete unfunded field studies or assessments not 
pertinent to the applicant's request but important to the agency. In a 
related concern, respondents stated that processing fees should be 
reduced when an applicant provides data or studies relevant to the 
environmental documentation needed to process an application.
    Respondents holding authorizations in the National Forests in 
Alaska concluded that all processing activities in Alaska would fall 
into proposed categories B-IV (> 50 hours) and C (master agreement), 
which the respondents believed would increase already burdensome 
paperwork requirements. Some respondents asked that bills for payment 
of cost recovery fees be due and payable in 60 days, rather than the 30 
days set forth in the proposed regulation. Several respondents asked 
that processing fees for proposed categories A (minimal impact) through 
B-III (> 36 and <= 50 hours) be refunded to the applicant when payments 
exceed the agency's costs, as they would be in proposed categories B-IV 
and C, and that processing fees for proposed category B-IV (>= 50 
hours) applications remaining after withdrawal of an application be 
refunded to the applicant.
    Response. The Department recognizes respondents' concerns about the 
scope of environmental documentation

[[Page 8904]]

required and what would be considered reasonable costs. As stated 
earlier, some level of environmental analysis pursuant to NEPA must be 
conducted with respect to the environmental effects of a proposed use 
and occupancy. This analysis considers the use proposed by the 
applicant, and includes a cumulative effects analysis with respect to 
other activities related to the proposed use. There is also a need, 
however, to place limits on how far the environmental analysis should 
go, and to identify where the responsibility of the applicant ends and 
the public benefit begins. Therefore, the Department has incorporated 
in the final rule direction that the processing fee for an application 
be based only on costs necessary for processing that application.
    Some examples of where the responsibility of the applicant ends and 
the public benefit begins include studies to determine the capacity of 
the land and its resources to accommodate a type of use in an area, 
analysis and development of a habitat management plan, and utility 
corridor studies. In general, cost recovery fees should not be charged 
for studies that relate to management programs that affect more than 
one applicant and that could involve amendment of a land management 
plan.
    The Department believes that clearer direction on this point is 
needed and has modified Sec.  251.58(c)(1) to state that the processing 
fee for an application will be based only on costs necessary for 
processing an application and will not include costs for studies for 
programmatic planning or analysis or other agency management 
objectives, unless they are necessary for the application being 
processed. The processing fee for an application shall be based on 
costs for studies relating to programmatic planning or analysis or 
other agency management objectives to the extent these costs are 
necessary for the application to be processed. ``Necessary for'' means 
that but for the application, the costs would not have been incurred 
and that the costs cover only those activities without which the 
application cannot be processed.
    In the first sentence of the provision governing the basis for 
processing fees, the Department is changing the phrase ``the amount of 
time that the Forest Service spends'' to ``the costs that the Forest 
Service incurs'' because in major category cases the basis for the 
processing fee may in some instances be based on costs other than 
agency time. In the eighth sentence, governing processing work 
conducted by the applicant or a third party, the Department is adding 
the phrase ``contracted by the applicant'' to distinguish between costs 
incurred by the applicant and costs incurred by the Forest Service.
    In addition, the Department has reorganized and revised Sec.  
251.58(c)(1) to clarify how processing fees are determined and to 
provide for reconciliation of category 5 and category 6 processing 
fees.
    For category 6 applications submitted under authorities other than 
the MLA, the Department has clarified in Sec.  251.58(c)(1)(ii)(A) that 
the Forest Service will determine whether actual costs should be 
reduced based upon an analysis submitted by the applicant or holder of 
the factors relevant to determining the reasonableness of the costs, 
and will notify the applicant or holder in writing of this 
determination.
    For category 5 applications, the Department has clarified in Sec.  
251.58(c)(2)(v), consistent with BLM, that in signing a master 
agreement for a major category application submitted under authorities 
other than the MLA, an applicant waives the right to request a 
reduction of the processing fee based upon the factors relevant to 
determining the reasonableness of the costs.
    The Department disagrees with the comment that cost recovery fees 
should not be charged in the case of agency-driven solicitations. 
Solicitations come in many forms, from simple campground concession 
offerings to complex offerings that require two levels of environmental 
analysis spread over several years of implementation. The Department 
accepts responsibility for the programmatic level of environmental 
analysis to determine whether the concept of the agency offering is 
environmentally acceptable. Under the proposed rule at Sec.  
251.58(c)(3)(ii), when the agency solicited applications for the use 
and occupancy of NFS lands, the agency would be responsible for the 
costs of environmental analyses conducted prior to issuance of the 
prospectus. The selected applicant would pay a processing fee that 
would cover only the agency's costs to process the selected applicant's 
proposal, including any subsequent project-level environmental analysis 
and documentation.
    To address this comment and to distinguish solicitations driven by 
the agency from solicitations driven by multiple applications for a 
limited number of authorizations, Sec.  251.58(c)(3) in the final rule 
has been retitled ``multiple applications other than those covered by 
master agreements (category 5).'' Paragraphs (i) through (iii) under 
Sec.  251.58(c)(3) also have been added to the final rule to address 
different cases of multiple related applications.
    Paragraph (i) deals with multiple unsolicited applications where 
there is no competitive interest. Processing costs that are incurred in 
processing more than one of these applications, such as the cost of 
environmental analysis or printing an environmental impact statement 
that relates to all of the applications, must be paid by each applicant 
in equal shares or on a prorated basis, as deemed appropriate by the 
authorized officer.
    Paragraph (ii) covers unsolicited proposals where competitive 
interest exists. Under this scenario, a prospectus will be issued, and 
all proposals accepted pursuant to the solicitation will be processed 
as applications. The applicants will be responsible for the costs of 
environmental analyses that are necessary for their applications and 
that are conducted prior to issuance of the prospectus. Processing fees 
for these cases will be determined pursuant to the procedures for 
establishing a category 6 (> 50 hours) processing fee and will include 
such costs as those incurred in printing and mailing the prospectus; 
having parties other than the Forest Service review and evaluate 
applications; establishing a case file; recording data; conducting 
financial reviews; and, for selected applicants, any additional 
environmental analysis required in connection with their applications. 
The processing fee determined by the authorized officer will be paid in 
equal shares or on a prorated basis, as deemed appropriate by the 
authorized officer, by all parties who submitted proposals that were 
processed as applications pursuant to the solicitation.
    Paragraph (iii) covers agency-solicited applications. The agency 
will be responsible for the cost of environmental analyses conducted 
prior to issuance of the prospectus. All proposals accepted pursuant to 
that solicitation will be processed as applications. Processing fees 
for these cases will be determined pursuant to the procedures for 
establishing a category 6 processing fee and will include such costs as 
those incurred in printing and mailing the prospectus; having parties 
other than the Forest Service review and evaluate applications; 
establishing a case file; recording data; conducting financial reviews; 
and, for selected applicants, any additional environmental analysis 
required in connection with their applications. Processing fees will be 
paid in equal or prorated shares, as deemed appropriate by the 
authorized officer, by all parties who submitted proposals that were

[[Page 8905]]

processed as applications pursuant to the solicitation.
    Provisions have been added in the final rule to address 
applications for recreation special uses that individually are exempt 
from cost recovery because the estimated time to process each of them 
is 50 hours or less but, when combined with other similar applications 
for a single project or type of use, the cumulative processing time 
exceeds 50 hours. In those situations, a cost recovery fee will be 
assessed, but the costs associated with processing all applications for 
a single project or type of use will be spread evenly among all the 
applicants.
    The Department does not agree with respondents from Alaska who 
stated that the proposed processing fees would perpetuate burdensome 
paperwork requirements. The process for determining cost recovery fees 
is not overly complex and is based upon information that the applicant 
is already required to submit to the Forest Service for purposes of 
determining the appropriateness of the request. The Department 
acknowledges that costs for all goods and services are generally more 
expensive in Alaska. However, the Department reiterates that the minor 
category fee rates are reasonable costs and that all applicants may 
elevate disputes in processing fee determinations to the next higher 
administrative level within the Forest Service.
    The Department has added a statement in Sec.  251.58(c)(4)(i) that 
a processing fee will be assessed when the authorized officer is 
prepared to process the application. This provision clarifies that a 
processing fee will not be assessed until the Forest Service is ready 
to process the application.
    The provisions in Sec.  251.58(c)(4)(ii) of the proposed rule 
dealing with revision of processing fees has been modified in the final 
rule to state that minor category processing fees will not be 
reclassified into a higher level minor category once the processing fee 
category has been determined.
    The Department also considered the request by respondents that the 
billing period during which cost recovery fees are due and payable be 
expanded from 30 to 60 days. Thirty days is the standard billing period 
used in the special uses program for other fees (such as land use 
fees). The Department does not believe that there are any compelling 
reasons for changing the billing period for cost recovery fees. 
Therefore, no changes have been made in the final rule to the billing 
period in which cost recovery fees are due and payable.
    The Department does not agree with respondents who requested that 
unspent processing fees for categories A through B-III in the proposed 
rule be refunded to the applicant. The fee rates for the minor 
processing categories are designed to provide efficiencies in the 
assessment and collection of cost recovery fees, one aspect of which is 
avoiding a separate accounting for every application that falls into 
these categories. Separate accounting would be necessary to track case-
by-case costs and provide for refunds, and would be burdensome and 
expensive.
    The Department has added provisions to Sec.  251.58(c)(5)(ii) and 
(c)(6)(ii) of the final rule to provide for underpayment and 
overpayment of category 5 processing fees. Under Sec.  
251.58(c)(5)(ii), when estimated processing costs are lower than the 
final processing costs for applications covered by a master agreement, 
the applicant will pay the difference between the estimated and final 
processing costs. Under Sec.  251.58(c)(6)(ii), if payment of the 
processing fee exceeds the agency's final processing costs the 
applications covered by a master agreement, the agency either will 
refund the excess payment to the applicant or, at the applicant's 
request, will credit it towards monitoring fees due.
    The Department has clarified provisions in Sec.  251.58(c)(5)(iii) 
and (c)(6)(iii) governing underpayment and overpayment of category 6 
processing fees to provide that reconciliation of those fees will not 
be based upon full reasonable costs for applications submitted under 
authorities other than the MLA when the applicant has waived payment of 
reasonable costs.
    Section 251.58(d) Monitoring fee requirements. This section of the 
rule describes those agency actions that would require payment of 
monitoring fees and sets forth the fee categories.
    Comment. Many respondents commented on this section of the proposed 
rule. They indicated significant concern with and misunderstanding of 
this provision. Most respondents were concerned about the activities 
that would be monitored and stated that monitoring should not be 
conducted annually or for ongoing operations. Several respondents noted 
that BLM has exempted outfitting and guiding authorizations from 
monitoring fees and suggested that the Forest Service do the same. Some 
respondents recommended that all unspent monitoring fees be refunded to 
the holder.
    Response. Most of the issues respondents identified have been 
addressed in the revision to the definition for monitoring, which was 
discussed previously in the response to comments on Sec.  251.51, 
``Definitions.'' Section 251.58(d) of the final rule has been revised 
to narrow the basis for monitoring fees. In addition, the Department 
has reorganized and revised Sec.  251.58(d)(1) to clarify how 
monitoring fees are determined and to provide for reconciliation of 
category 5 and category 6 monitoring fees.
    For category 6 authorizations issued under authorities other than 
the MLA, the Department has clarified in Sec.  251.58(d)(1)(ii)(A) that 
the Forest Service will determine whether actual costs should be 
reduced based upon an analysis submitted by the holder of the factors 
relevant to determining the reasonableness of the costs, and will 
notify the holder in writing of this determination.
    For category 5 authorizations, the Department has clarified in 
Sec.  251.58(d)(2)(v), consistent with BLM, that in signing a master 
agreement for a major category authorization issued under authorities 
other than the MLA, a holder waives the right to request a reduction of 
the monitoring fee based upon the factors relevant to determining the 
reasonableness of the costs.
    The Department has added provisions in Sec.  251.58(d)(3)(ii) and 
(d)(4)(ii) of the final rule to provide for underpayment and 
overpayment of category 5 monitoring fees. Under Sec.  
251.58(d)(3)(ii), when estimated monitoring costs are lower than the 
final monitoring costs for authorizations covered by a master 
agreement, the holder will pay the difference between the estimated and 
final monitoring costs. Under Sec.  251.58(d)(4)(ii), if payment of the 
monitoring fee exceeds the agency's final monitoring costs for the 
authorizations covered by a master agreement, the agency either will 
adjust the next periodic payment to reflect the overpayment or will 
refund the excess payment to the holder.
    The Department has clarified provisions in Sec.  251.58(d)(3)(iii) 
and (d)(4)(iii) governing underpayment and overpayment of category 6 
monitoring fees to provide that reconciliation of those fees will not 
be based upon full reasonable costs for authorizations issued under 
authorities other than the MLA when the holder has waived payment of 
reasonable costs.
    Several other revisions have been made to this section of the final 
rule to ensure correct application of the monitoring fee categories; to 
clarify the descriptions of the monitoring fee categories; and to make 
the categories for processing and monitoring fees consistent.

[[Page 8906]]

    Section 251.58(e) Applicant and holder disputes concerning 
processing or monitoring fee assessments; requests for changes in fee 
categories or estimated fee amounts. This section of the rule describes 
the actions the agency will take when an applicant or holder disagrees 
with a processing or monitoring fee category or estimated fee amount 
assigned by an authorized officer.
    Comment. Several respondents took issue with the provisions at 
paragraphs (e)(2)(i) and (e)(3) that would suspend processing an 
application or suspend an authorization while a dispute is being 
resolved. Many respondents expressed concern that the authorized 
officer who assigned the fee category or estimated fee amount would be 
the same official who would review the dispute. Some respondents 
suggested that an entity other than the Forest Service should review 
disputed cost recovery fee determinations.
    Response. The Department concurs with these respondents' concerns. 
The regulation should allow the applicant or holder to dispute the 
determined fee category or estimated costs without suspension of the 
application or authorization and should provide for a Forest Service 
officer other than the one who determined the fee category or estimated 
costs to review cost recovery disputes. However, the Department does 
not believe it is appropriate for cost recovery disputes to be reviewed 
outside the agency. The final rule at Sec.  251.58(e)(1)-(4) has been 
revised to provide the applicant or holder with one level of review. 
Before a disputed fee is due, the applicant or holder may submit a 
written request for substitution of an alternative fee category or 
alternative estimated costs to the immediate supervisor of the 
authorized officer who determined the fee category or estimated costs. 
The applicant or holder must provide documentation that supports the 
alternative fee category or estimated costs. The supervisory officer 
must make a decision within 30 calendar days of receipt of the written 
request disputing the fee category or estimated costs. The dispute will 
be decided in favor of the applicant or holder if the supervisory 
officer does not respond to the written request within 30 days of 
receipt (paragraph (e)(4)).
    Paragraphs (e)(2)(i)-(ii) of the final rule have been revised to 
remove the reference to suspension and to set forth new provisions 
describing agency action when the applicant or holder (1) has paid the 
disputed processing fee or (2) has failed or refuses to pay the 
disputed processing fee. In the former case, the authorized officer 
will not interrupt the processing while the dispute is being reviewed 
and the supervisory officer is making a decision, unless the applicant 
requests it. In the latter case, the authorized officer will suspend 
processing pending the supervisory officer's consideration of the 
dispute and determination of an appropriate fee. Paragraph (e)(3) 
dealing with monitoring fee disputes has been revised to remove the 
reference to suspension and to make revisions similar to those 
described above for processing fees (paragraphs (e)(2)(i)-(ii)).
    Section 251.58(f) Waivers of processing and monitoring fees. This 
section of the rule provides for applicant or holder requests for fee 
waivers and describes criteria for the authorized officer to use in 
granting full or partial waivers of processing and monitoring fees.
    Comment. This section prompted more comments than any other section 
of the proposed rule. Most respondents sought to clarify or expand the 
criteria for granting fee waivers, particularly to benefit applicants 
for or holders of authorizations for nonprofit activities. However, 
other respondents insisted that nonprofit status alone should not be 
the criterion for granting a fee waiver. A principal concern of these 
respondents was the application of the public benefit criterion in 
paragraph (f)(1)(vi)(B). Respondents asked that it be broadened to 
allow waiver of processing fees for environmental analysis considered 
beyond the scope of the proposed activity. Respondents also were 
concerned that the authorized officer would have sole authority to 
grant fee waivers. State and local governmental entities recommended 
that the fee waiver criteria be clarified to ensure that activities 
they conduct on NFS lands qualify for a fee waiver.
    Response. The nature of the responses indicates that the public is 
not familiar with the distinction between the terms ``waiver'' and 
``exemption.'' Although their effect may be the same, there is a 
difference between them.
    A fee waiver may occur after the authorized officer has determined 
the appropriate fee category or estimated costs for a processing or 
monitoring activity. When one or more of the fee waiver criteria are 
met, the authorized officer may waive all or part of the cost recovery 
fee.
    A fee exemption occurs when the authorized officer determines that 
the application or authorization is not subject to processing or 
monitoring fees based on law or regulation. In those situations, the 
authorized officer has no discretion in exempting the application or 
authorization from a cost recovery fee.
    The Department has declined to broaden the criteria for fee waivers 
because the agency's processing of a special use application or 
monitoring of a special use authorization provides a specific benefit 
or service to the applicant or holder beyond that provided to the 
general public. The Department also believes that it is not appropriate 
to identify specific special use activities that are eligible for fee 
waiver, and thus has not done so in the final rule.
    Section 251.58(f)(vi) of the proposed rule would authorize waiver 
of a processing fee for nonprofit entities when ``(A) [t]he studies 
undertaken in connection with processing their application have a 
public benefit or (B) [t]he proposed facility or project will provide a 
free service to the public or a program of the Secretary of 
Agriculture.'' The Department is removing Sec.  251.58(f)(vi)(A), 
redesignating Sec.  251.58(f)(vi)(B) as Sec.  251.58(f)(vi), and 
clarifying its text. The Department believes that the waiver provision 
in proposed Sec.  251.58(f)(vi)(A) is unnecessary because Sec.  
251.58(c)(1) of the final rule states that processing fees shall not 
include costs for studies for programmatic planning or analysis or 
other agency management objectives, unless they are necessary for the 
application being processed. Thus, under the final rule, processing 
fees for all applicants, not just nonprofit applicants, will not 
include studies for programmatic planning or analysis or other agency 
management objectives that are not necessary for an application. When 
these studies are necessary for an application, they are providing a 
specific benefit or service to the applicant beyond that provided to 
the general public and therefore may be included in a cost recovery 
fee. Section 251.58(c)(1) of the final rule addresses the comment that 
the nonprofit status of an applicant alone should not qualify an entity 
for a fee waiver.
    The Department has given careful consideration to the 
recommendations by State and local governmental agencies and other 
Federal agencies regarding full fee waivers. The Department recognizes 
that the criteria in proposed paragraph (f)(1)(i) describe only those 
situations where reciprocity between the governmental entity and the 
Forest Service exists. In situations where the agency has no reciprocal 
business dealings or relationships with the Federal, State, or local 
governmental agency, there is no opportunity for that entity to 
demonstrate that it would

[[Page 8907]]

waive similar fees that it might assess the Forest Service in such 
dealings. Thus, the final rule has been revised at paragraph (f)(1)(i) 
to state that the Forest Service may waive a processing or monitoring 
fee for a local, State, or Federal governmental entity that does not or 
would not charge processing or monitoring fees for comparable services 
the entity provides or would provide to the Forest Service. The 
comparability of fees charged will not be based on the dollar amount, 
but rather on the type of services for which the fees are charged.
    Section 251.58(g) Exemptions from processing or monitoring fees. 
This section of the rule sets forth direction regarding those uses and 
activities that are exempted from paying processing and monitoring 
fees.
    Comment. This section of the proposed rule prompted many comments. 
Nearly all respondents who commented advocated that a particular use, 
activity, or group be exempted, such as recreation residences, 
houseboats, scientific studies, private clubs, and traditional Native 
American groups. Several respondents stated that rights-of-way granted 
under the Alaska National Interest Lands Conservation Act (ANILCA) 
across NFS lands to reach non-Federal land should be exempt from cost 
recovery fees because section 1323(a) of ANILCA gives those who own 
non-Federal land adjoining Federal land a right of access across the 
Federal land. In addition, many respondents claimed that authorized 
water storage facilities on NFS lands should be exempted from cost 
recovery fees.
    Response. As outlined in the discussion of Sec.  251.58(f), 
exemptions will be granted only as provided by law or regulation. 
Relief from cost recovery fees for any special use that is not 
specifically exempted will be considered under the criteria for fee 
waivers set forth in Sec.  251.58(f).
    The summary of the proposed rule stated that cost recovery would 
not apply where processing and monitoring fees were being collected by 
another Federal agency on behalf of the Forest Service. The Department 
has removed this provision from the summary of the final rule because 
it relates to collection, rather than assessment, of cost recovery 
fees. The Forest Service has cooperative agreements with BLM for 
administration of some special uses. The Forest Service's final cost 
recovery rule will apply to these special uses, but the cost recovery 
fees in some instances may be collected by BLM and remitted to the 
Forest Service.
    In response to concerns raised by the public, and to enhance 
interagency consistency between the Forest Service and BLM, the 
Department has exempted from cost recovery all applications and 
authorizations for recreation special uses that require 50 hours or 
less to process or monitor. Applications and authorizations for 
recreation special uses requiring more than 50 hours to process or 
monitor are subject to the cost recovery provisions of the final rule.
    The Department has considered the respondents' recommendation that 
rights-of-way granted under section 1323(a) of ANILCA be exempted from 
processing and monitoring fees. Section 1323(a) of ANILCA provides that 
land owners have a right of access to their property across NFS lands 
for the reasonable use and enjoyment of the property, subject to such 
terms and conditions as the Forest Service may prescribe. The 
Department believes that the cost recovery regulations are a reasonable 
term and condition applicable to applicants for and holders of 
authorizations for rights-of-way granted under section 1323(a) of 
ANILCA. Accordingly, the Department has not modified the final rule to 
exempt rights-of-way granted under section 1323(a) of ANILCA from cost 
recovery.
    The Department disagrees with those who stated that authorized 
water storage facilities on NFS lands are specifically exempted from 
cost recovery fees. There are currently no provisions in law that 
specifically exempt this type of use from cost recovery. Therefore, the 
final rule will not provide for a specific exemption for water storage 
facilities. A waiver for this use may still be considered under the 
provisions set forth in Sec.  251.58(f) of the final rule.
    In the fall of 1999, the Forest Service commissioned a national 
task force to conduct a broad review of the agency's programs and 
policies involving Tribal governments and to recommend a unified policy 
regarding the need for a special use authorization for Tribal use and 
occupancy of NFS lands for traditional or cultural purposes. Until the 
agency adopts such a policy, it would be premature to exempt these uses 
from cost recovery fees. Moreover, once such a policy is adopted, 
whether a special use authorization is required, and if so, the nature 
of the use, will determine whether cost recovery fees are required in 
this context.
    The Department is modifying the exemption relating to closure 
orders by stating that it applies to ``a noncommercial activity,'' 
rather than ``activities,'' that are exempt from a closure order to 
make it clear that the exemption does not apply to commercial 
activities that are exempt from a closure order.
    The Department is adding an exemption for applications and 
authorizations for water systems authorized by section 501(c) of FLPMA 
(43 U.S.C. 1761(c)). Section 501(c) of FLPMA precludes cost recovery 
for these applications and authorizations. In addition, the Department 
is adding an exemption for a use or activity conducted by a Federal 
agency that is not authorized under Title V of FLPMA (43 U.S.C. 1761-
1771); the MLA (30 U.S.C. 185); the National Historic Preservation Act 
(NHPA), 16 U.S.C. 470h-2; or the statute governing authorizations for 
commercial filming (16 U.S.C. 460l-6d). The Forest Service does not 
have the authority to require cost recovery from Federal agencies that 
apply for and hold special use authorizations issued under statutes 
other than FLPMA, the MLA, the NHPA, and the commercial filming 
statute.
    Section 251.58(h) Appeal of decisions. This section of the rule 
provides that a decision by the authorized officer to assess a 
processing or monitoring fee and the determination of a fee category or 
estimated costs are not subject to administrative appeal.
    Comment. This section received many comments, all stating that 
there should be an appeal process. Without such a process, the 
respondents believed that they were denied due process. Some 
respondents stated that this regulation should provide an applicant or 
holder the opportunity to appeal to the next higher agency line officer 
or to a board or individual who was not involved in the initial fee 
determination. Respondents believed that agency action on an 
application or authorization should not be suspended while an appeal is 
being decided.
    Response. The Department believes that the determination of cost 
recovery fees should be kept separate from the review process required 
by the Department's administrative appeal regulations. To make that 
process available to applicants and holders would reduce the value of 
cost recovery to special use applicants, authorization holders, and the 
agency, as it would surely lead to delays in processing applications 
and monitoring authorizations while the authorized officer's attention 
is diverted to responding to appeals.
    The Department, however, recognizes the importance of providing 
administrative recourse to those who dispute the authorized officer's 
determination of a cost recovery fee category or estimated costs. Thus, 
the Department has revised Sec.  251.58(e) in

[[Page 8908]]

the final rule to allow an applicant or holder to submit a written 
request before the disputed fee is due for substitution of an 
alternative fee category or alternative estimated costs to the 
authorized officer's immediate supervisor. The applicant or holder must 
provide documentation that supports the alternative fee category or 
estimated costs. Further, unless requested by the applicant or holder, 
or unless the applicant or holder fails to pay the full disputed fee, 
the revised dispute resolution process will not result in the agency 
suspending action on the application or authorization while the dispute 
is being addressed. The authorized officer's immediate supervisor must 
render a decision on a disputed processing or monitoring fee within 30 
calendar days of receipt of the written request from the applicant or 
holder. The dispute will be decided in favor of the applicant or holder 
if the immediate supervisor does not respond to the written request 
within 30 days of receipt. The Department believes that these revisions 
are sufficient to allay respondents' concerns regarding review of cost 
recovery determinations.
    Section 251.58(i) Processing and monitoring fee schedules. This 
section provides that the agency will place its processing and 
monitoring fee schedules in its directives system, and will review the 
rates in the schedules 5 years after the effective date of the final 
rule.
    Comment. The only comment received on this section was the 
suggestion that the fee schedules appear in the Code of Federal 
Regulations (CFR), rather than in the agency's directive system.
    Response. The Department disagrees with the suggestion that the CFR 
is the appropriate place to post and update cost recovery fee 
schedules. The fee schedules will be updated annually using the IPD-GDP 
index. It would be cumbersome to go through the regulatory process 
annually to amend the CFR to revise the cost recovery rates based on 
changes in the IPD-GDP. It is appropriate to post cost recovery fee 
schedules in the agency's directive system. Currently, all other Forest 
Service fee schedules are found in the directive system. Directives are 
easily amended, which is particularly important when fee schedules need 
to be updated annually. Additionally, these directives are available at 
all administrative levels within the agency and are accessible to the 
public through the agency's World Wide Web directive home page (http://www.fs.fed.us/im/directives). Therefore, the provision in the proposed 
rule for posting cost recovery fee schedules in the Forest Service's 
directives system remains unchanged in the final rule.
    The Forest Service, in discussions with BLM, has determined that it 
should not necessarily wait 5 years to review its cost recovery fee 
schedules. The agency believes that it should have the latitude to 
evaluate consistency between the fee schedules and its actual costs of 
doing business at any point after adoption of the final rule. The 
Department concurs that the agency should review and, if necessary, 
revise the minor category fee rates to make them commensurate with the 
agency's cost to process applications and monitor authorizations. The 
Department affirms, however, that any evaluation of fee schedules will 
be based on case-specific samplings of costs that the agency will 
collect following implementation of the final rule. Therefore, Sec.  
251.58(i)(2) of the final rule has been revised to state that the 
agency will review the cost recovery rates within 5 years of the 
effective date of the final rule.

3. Final Processing and Monitoring Fee Schedules

    The following schedules contain the fee categories and rates for 
cost recovery that are adopted by this final rule. As displayed, all 
minor category fee rates have been indexed to reflect CY 2005 rates 
using the cumulative rate of change from the CY 2003 second quarter to 
the CY 2004 second quarter in the IPD-GDP index, as discussed earlier 
in section 2 under ``Response to General Comments'' and are consistent 
with the rates adopted by BLM in its final regulations for its right-
of-way program (70 FR 20969, Apr. 22, 2005). The Forest Service will 
incorporate these fee schedules in its internal directive system.

                   Calendar Year 2006 Processing Fees
------------------------------------------------------------------------
          Category                   Hours                  Rate*
------------------------------------------------------------------------
         Processing Fee Schedule for Minor Category Applications
------------------------------------------------------------------------
1 (Minimal Impact).........  > 1 and up to and      $100.
                              including 8.
2..........................  > 8 and up to and      $354.
                              including 24.
3..........................  > 24 and up to and     $665.
                              including 36.
4..........................  > 36 and up to and     $953.
                              including 50.
----------------------------
   Processing Fee Schedule for Major Category Applications, Other Than
             Those Authorized Under the Mineral Leasing Act
------------------------------------------------------------------------
          Category                   Hours                  Rate
----------------------------
5 (Master Agreement).......  .....................  As specified in the
                                                     agreement.
6..........................  > 50.................  Full reasonable
                                                     costs as determined
                                                     case by case.
----------------------------
Processing Fee Schedule for Major Category Applications Authorized Under
                         the Mineral Leasing Act
------------------------------------------------------------------------
          Category                   Hours                  Rate
----------------------------
5 (Master Agreement).......  .....................  As specified in the
                                                     agreement.
6..........................  > 50.................  Full actual costs as
                                                     determined case by
                                                     case.
------------------------------------------------------------------------
* Pursuant to 36 CFR 251.58(g), no processing fee shall be charged for:
 Applications that require 1 hour or less for the agency to
  process.
 Applications for recreation special uses that require 50 hours
  or less to process.
 Applications for a noncommercial group use (36 CFR 251.51).
 Applications to exempt a noncommercial activity from a closure
  order, except for applications for access to non-Federal lands within
  the boundaries of the National Forest System granted under section
  1323(a) of ANILCA (16 U.S.C. 3210(a)).
 Applications for water systems authorized by section 501(c) of
  FLPMA (43 U.S.C. 1761(c)).

[[Page 8909]]

 
 Applications submitted by a Federal agency under authorities
  other than Title V of FLPMA (43 U.S.C. 1761-1771); the MLA (30 U.S.C.
  185); the NHPA (16 U.S.C. 470h-2); or the Act of May 26, 2000 (16
  U.S.C. 4601-6d).


                   Calendar Year 2006 Monitoring Fees
------------------------------------------------------------------------
          Category                   Hours                  Rate*
------------------------------------------------------------------------
        Monitoring Fee Schedule for Minor Category Authorizations
------------------------------------------------------------------------
1 (Minimal Impact).........  > 1 and up to and      $100.
                              including 8.
2..........................  > 8 and up to and      $354.
                              including 24.
3..........................  > 24 and up to and     $665.
                              including 36.
4..........................  > 36 and up to and     $953.
                              including 50.
----------------------------
  Monitoring Fee Schedule for Major Category Authorizations, Other Than
               Those Issued Under the Mineral Leasing Act
------------------------------------------------------------------------
          Category                   Hours                  Rate
----------------------------
5 (Master Agreement).......  .....................  As specified in the
                                                     agreement.
6..........................  > 50.................  Full reasonable
                                                     costs as determined
                                                     case by case.
----------------------------
 Monitoring Fee Schedule for Major Category Authorizations Issued Under
                         the Mineral Leasing Act
------------------------------------------------------------------------
          Category                   Hours                  Rate
----------------------------
5 (Master Agreement).......  .....................  As specified in the
                                                     agreement.
6..........................  > 50.................  Full actual costs as
                                                     determined case by
                                                     case.
------------------------------------------------------------------------
* Pursuant to 36 CFR 251.58(g), no monitoring fee shall be charged for:
 Authorizations that require 1 hour or less for the agency to
  monitor.
 Authorizations for recreation special uses that require 50
  hours or less to monitor.
 Authorizations for a noncommercial group use (36 CFR 251.51).
 Authorizations to exempt a noncommercial activity from a
  closure order, except for authorizations for access to non-Federal
  lands within the boundaries of the National Forest System granted
  under section 1323(a) of ANILCA (16 U.S.C. 3210(a)).
 Authorizations for water systems authorized by section 501(c)
  of FLPMA (43 U.S.C. 1761(c)).
 Authorizations issued to a Federal agency under authorities
  other than Title V of FLPMA (43 U.S.C. 1761-1771); the MLA (30 U.S.C.
  185); the NHPA (16 U.S.C. 470h-2); or the Act of May 26, 2000 (16
  U.S.C. 4601-6d).

4. Authority

    Laws or administrative directives that authorize the Forest Service 
to recover costs include:
    1. Independent Offices Appropriations Act of 1952, as amended 
(IOAA; 31 U.S.C. 9701). Title V of this act provides that each Federal 
agency may charge for specific benefits and services the agency 
provides to an identifiable recipient, with an exception for official 
government business. Such charges must be fair and must be based on the 
costs to the Federal Government and the value of the specific benefits 
and services provided to the recipient.
    2. Office of Management and Budget (OMB) Circular No. A-25, as 
revised July 15, 1993. This circular provides Federal agencies with 
specific direction for implementing the cost recovery provisions of 
Title V of the IOAA. Section 4a specifies that the circular covers all 
Federal activities that convey specific benefits or services to 
identifiable recipients beyond those accruing to the general public.
    3. Section 28(l) of the Mineral Leasing Act of 1920, as amended 
(MLA; 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 an 
oil and gas right-of-way or permit reimburse the Federal Government for 
actual administrative and other costs incurred in processing the 
application (such as the cost of preparing environmental impact 
statements, including environmental analyses and biological evaluations 
for Endangered Species Act compliance); and requires that a holder of 
an oil and gas right-of-way or permit reimburse actual administrative 
and other costs incurred by the Federal Government in monitoring the 
construction, operation, maintenance, and termination of any pipeline 
and related facilities within the scope of the right-of-way or permit. 
The legislative history of the 1973 amendment to the MLA states that 
the reimbursement for these administrative and other costs is in 
addition to fees charged for use and occupancy of land within the scope 
of the right-of-way.
    4. Section 504(g) of the Federal Land Policy and Management Act of 
1976 (FLPMA; 43 U.S.C. 1764(g)). Section 504(g) of FLPMA provides for 
reimbursement of administrative and other costs in addition to the 
collection of a land use fee. The act authorizes agencies to require 
reimbursement of the Federal Government for all reasonable 
administrative and other costs incurred in processing right-of-way 
applications and in monitoring right-of-way 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 costs incurred for the benefit 
of the general public interest, the public service provided, the 
efficiency of the Government processing involved, and other factors 
relevant to determining the reasonableness of processing or monitoring 
costs. The act also provides a concise statement of Congressional 
intent concerning cost recovery generally.
    Public Law 98-300 amended section 504(g) of FLPMA to exempt certain 
facilities financed under the Rural Electrification Act 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. Section 110(g) of the National Historic Preservation Act of 1966 
(NHPA; 16 U.S.C. 470h-2(g)). Section 110(g) of this act provides that 
Federal agencies may require prospective licensees and permittees to 
pay for the Federal Government's cost of preservation activities as a 
condition of issuance of a license or permit.
    6. Section 331 of the Interior and Related Agencies Appropriations 
Act of

[[Page 8910]]

November 29, 1999 (Pub. L. 106-113) and Section 345 of the Consolidated 
Appropriations Act for fiscal year 2005 (Pub. L. 108-447, Division E), 
and Section 425 of the Interior and Related Agencies Appropriations Act 
of August 2, 2005 (Pub. L. 109-54). Section 331 of this act allows the 
Forest Service to retain and spend funds collected under its existing 
statutory authorities for cost recovery for fiscal years 2000 through 
2004 to cover the costs incurred by the agency in processing special 
use applications and monitoring compliance with special use 
authorizations. Section 345 of the Consolidated Appropriations Act for 
fiscal year 2005 (Pub. L. 108-447, Division E) extended this authority 
through September 30, 2005. Section 425 of the Interior and Related 
Agencies Appropriations Act for fiscal year 2006 (Pub. L. 109-54) 
extended this authority through September 30, 2006.
    7. Section 1(b) of the Act of May 26, 2000 (16 U.S.C. 460l-6d(b)). 
Section 1(b) of this act authorizes the Forest Service to recover any 
costs incurred as a result of commercial filming or similar projects, 
including, but not limited to, administrative and personnel costs.

5. Regulatory Certifications

Environmental Impact

    This final rule establishes administrative fee categories and 
procedures for processing special use applications and monitoring 
special use authorizations on National Forest System (NFS) lands. 
Section 31b of Forest Service Handbook 1909.15 (57 FR 43180, September 
18, 1992) excludes 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's assessment is that this final rule 
falls within this category of actions and that no extraordinary 
circumstances exist which would require preparation of an environmental 
assessment or environmental impact statement.

Regulatory Impact

    In accordance with OMB's determination that this final rule is 
significant, it has been subject to OMB review under Executive Order 
12866. In addition, the Forest Service has prepared a cost-benefit 
analysis and a threshold Regulatory Flexibility Act analysis of this 
final rule to identify its effects on applicants for and holders of 
special use authorizations and on the agency's management of its 
special uses program.

Cost-Benefit Analysis

    In this analysis, the Forest Service concluded that implementation 
of the final rule will result in a change in the agency's management of 
its special uses program. The most significant change will be 
experienced by those applicants for and holders of special use 
authorizations who have previously never been exposed to cost recovery 
and who will be required to pay cost recovery fees pursuant to the 
final rule. A summary of the key costs and benefits of the final rule 
for applicants, holders, and the Forest Service follows.
Primary Costs Associated With Implementing the Final Rule
    1. The economic impacts of the final rule will not be evenly 
distributed among applicants and holders.
    2. Those who may be most impacted by the added costs resulting from 
the final rule include:
    a. Individuals or entities that need to have an authorization to 
secure access to their lands within the NFS, especially in those cases 
where the application will require a considerable amount of time to 
process due to the magnitude of the proposal or the environmental 
sensitivity of the proposed use. These applicants will have little or 
no opportunity to pass cost recovery fees on to clients or customers.
    b. Some small businesses or individuals who apply for or hold 
special use authorizations, if their application for a new 
authorization or for modification of an existing authorization will 
require more than 50 hours to process. However, under the final rule, 
recreation special use applications and authorizations (such as for 
outfitting and guiding, resorts, or marinas) that require 50 hours or 
less to process or monitor are exempt from cost recovery fees.
    3. The final rule gives the authorized officer the discretion to 
grant a waiver to local, State, and Federal governmental entities that 
do not or would not charge processing or monitoring fees for comparable 
services they provide or would provide to the Forest Service.
Primary Benefits Associated With Implementing the Final Rule
    1. In return for assessing a processing fee from applicants for and 
holders of special use authorizations, the Forest Service is 
establishing customer service standards in its directives system that 
direct the authorized officer to communicate with applicants and 
holders about the status of application processing.
    2. The Forest Service will have additional resources to fund a more 
skilled and efficient workforce, which will enhance the agency's 
ability to satisfy the needs and expectations of applicants for and 
holders of special use authorizations.
    3. In some cases, more timely processing of applications will 
reduce opportunity costs and allow applicants to plan and operate in a 
more business-like manner.
    4. Taxpayers will benefit from having governmental services that 
are currently being provided with appropriated funds but that are 
benefiting identifiable recipients, rather than the general public, 
paid for instead by the recipients of those services.
    5. The public also will benefit from the reduction in the backlog 
of applications, which in turn will reduce the liability of the United 
States arising from uses and occupancies that continue on NFS lands 
under expired special use authorizations.
    6. NFS lands will benefit, in that the agency will have the 
resources needed to issue new authorizations with terms and conditions 
that mitigate environmental impacts for thousands of uses and 
occupancies that are continuing under expired authorizations.

Regulatory Flexibility Act Analysis

    The Department concludes that this final rule will not have a 
significant economic impact on a substantial number of small entities, 
based upon a cost-benefit analysis and a threshold Regulatory 
Flexibility Act analysis prepared for this final rule. Therefore, 
certification of no significant economic impact on a substantial number 
of small entities is appropriate, and further analysis pursuant to the 
Regulatory Flexibility Act is not required.
Basis for Charging Cost Recovery Fees
    This cost recovery rule establishes the procedures to charge 
applicants for and holders of special use authorizations for the cost 
of processing applications and monitoring authorizations. The 
processing fee for an application will be based only on costs necessary 
for processing that application and will not include costs for studies 
for programmatic planning or analysis (such as species viability, the 
recreational carrying capacity of a wilderness area, or analysis 
associated with designating a multi-user communications site) or other 
agency management objectives, unless they are necessary for the 
application being processed.

[[Page 8911]]

Entities Affected by Cost Recovery
    The cost recovery rule will apply to individuals, large and small 
businesses, large and small nonprofit entities, and local, State, and 
Federal governmental entities that are applicants for or holders of 
special use authorizations.
Scope of Impacts
    a. Business Entities. Large, complex projects are most commonly 
proposed by larger companies and corporations, which are most able to 
absorb the higher cost recovery fees that will be associated with these 
larger, more complex projects, and which in many cases can pass these 
fees on to a broad base of clients and customers. Conversely, smaller 
business entities and individuals commonly propose smaller, less 
complex projects on NFS lands and therefore more often will be assessed 
lower cost recovery fees than large businesses and corporations. The 
primary type of small business affected by the proposed cost recovery 
rule would be outfitters and guides, who provide outdoor recreation 
opportunities on the National Forests. Approximately 5,700 of these 
businesses operate partially or entirely on NFS lands. To address the 
concern expressed by these entities that they would be unduly burdened 
by this rule, as well as to enhance consistency with BLM's cost 
recovery regulations, the Department is establishing an exemption from 
cost recovery fees for recreation special use applications and 
authorizations that require 50 hours or less to process or monitor.
    b. Nonprofit Entities. As with larger versus smaller business 
entities, the larger, more complex projects that will have higher cost 
recovery fees are usually associated with larger nonprofit entities, 
and the smaller, less complex projects that will have lower cost 
recovery fees are associated with smaller nonprofit entities.
    c. Governmental Entities. The correlation between the size of a 
governmental entity and the size of a proposed special use project is 
not as direct as it is with nongovernmental entities. Some small 
governmental entities propose large public works projects that will 
have high cost recovery fees. Conversely, some Federal projects are 
small and will prompt low cost recovery fees.
Mitigation of Impacts on Small Entities
    The Forest Service has taken several steps to mitigate impacts on 
small entities in this final cost recovery rule. Revisions to the final 
rule were made in response to written comments received during the 
public comment period (November 27, 1999, through March 9, 2000); 
concerns voiced at public meetings held by the Forest Service in 
various locations throughout the United States in January and February 
2000; and the need to enhance consistency between the Forest Service's 
and BLM's cost recovery rules.
    Revisions to the final rule to mitigate impacts on small entities 
include:
    1. The provision governing the basis for processing fees has been 
clarified to state that the processing fee for an application will be 
based solely on costs necessary for processing that application and 
will not include costs for studies for programmatic planning or 
analysis or other agency management objectives, unless they are 
necessary for the application being processed. This revision addresses 
a major concern expressed by outfitters and guides and other small 
businesses with respect to the scope of the basis for charging a 
processing fee.
    2. Cost recovery fees may be waived for individuals and all types 
of entities, not just nonprofit entities, when the proposed facility, 
project, or use will provide, without user or customer charges, a 
valuable benefit to the general public or to the programs of the 
Secretary of Agriculture.
    3. The basis for charging monitoring fees has been narrowed. The 
basis for charging a monitoring fee for minor category cases will 
include only those activities required to ensure compliance with an 
authorization during construction or reconstruction of temporary or 
permanent facilities and rehabilitation of the construction or 
reconstruction site. As a result of this change, monitoring fees will 
not be assessed for most outfitting and guiding operations.
    4. Processing and monitoring fees have been eliminated for 
recreation special use applications and authorizations that require 50 
hours or less to process or monitor. Processing and monitoring fees 
have been eliminated for any other applications or authorizations that 
take 1 hour or less to process or monitor.
    5. The processing fee schedule in the proposed rule for 
applications other than those authorized under the MLA included a 
minimal impact rate of $75 for applications that take up to and 
including 8 hours to process. The minimal impact category has been 
modified in the processing fee schedule for minor category applications 
in the final rule and added to the monitoring fee schedule for minor 
category authorizations in the final rule. The minimal impact category 
now includes applications or authorizations that take more than 1 hour, 
but less than or equal to 8 hours, to process or monitor. This revision 
provides relief for individuals and small businesses by exempting from 
cost recovery fees those applications or authorizations that require 1 
hour or less to process or monitor.
    6. The agency has revised the dispute resolution process by 
providing that applicants and holders may submit a written request for 
substitution of an alternative fee category or alternative estimated 
costs to the immediate supervisor of the authorized officer who 
determined the fee category or estimated costs.
    7. The agency has retained modest fees in the fixed rate processing 
and monitoring categories 1 through 4. For major category 5 and 
category 6 cases, the authorized officer will estimate the agency's 
full actual processing and monitoring costs.
    The threshold Regulatory Flexibility Act analysis concludes that 
the economic impact of the final rule on small entities will be 
insignificant for the following additional reasons:
    1. Most small entities' applications will fall into minor 
categories. Recreation special use applications that fall into minor 
categories are exempt from processing fees. The estimated average minor 
category processing fee for non-recreation special uses is $491, which 
is minimal. The estimated average major category processing fee is 
$3,500 for non-recreation special use applications and $2,500 for 
recreation special use applications. Since processing fees are not 
assessed annually, but rather assessed only when an application covered 
by the cost recovery rule is submitted, minor and major category fees 
can be amortized over the term of a special use authorization for 
business planning purposes. The cost per year associated with an 
amortized processing fee generally will be minimal.
    2. Facilities or services that are already authorized will continue 
to operate without the imposition of costs recovery fees, unless the 
authorization for those facilities or services terminates or the holder 
proposes a new or modified use.
    3. Small governmental entities that do not or would not impose 
similar fees for comparable processing or monitoring services they 
provide or would provide to the Forest Service will qualify for a full 
or partial waiver of cost recovery fees under the final rule.
    4. Some small entities that propose large-scale projects that fall 
into major categories could be impacted by the final rule. However, the 
Forest Service's

[[Page 8912]]

special use regulations require that applicants for special use 
authorizations consult with Forest Service officials concerning 
applicable requirements before submitting a special use application and 
that applicants be financially and technically capable of providing the 
services or facilities they propose. In most cases, a cost recovery fee 
associated with processing an application for a major undertaking will 
constitute a small percentage of the total investment needed to conduct 
that activity on NFS lands.
    5. The Forest Service has developed its final cost recovery rule to 
be consistent with the cost recovery requirements imposed by BLM for 
its right-of-way and special recreation permit programs. These programs 
are comparable to the Forest Service's lands and recreation special use 
programs. BLM has been exercising its statutory authority to recover 
costs from its customers, including small entities, for nearly 20 
years. In its proposed and final cost recovery rules for special 
recreation permits (65 FR 31234, May 16, 2000, and 67 FR 61732, Oct. 1, 
2002) and in its proposed and final cost recovery rules for its right-
of-way program (64 FR 32106, Jun. 15, 1999, and 70 CFR 20969, Apr. 22, 
2005), BLM concluded that the imposition of cost recovery fees would 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act.
    6. Applicants for new uses may structure their applications to 
avoid areas with significant environmental concerns, thus reducing the 
costs associated with evaluating the environmental effects of a 
proposed use. In addition, applicants will be encouraged to fulfill as 
many of the application requirements as possible from sources other 
than the Forest Service. Doing so will minimize the processing fee by 
reducing the Forest Service's cost to process the application.
Benefits of the Final Rule
    Any minimal economic impacts on small entities are more than offset 
by the benefits associated with this rule, including the agency's 
establishment of customer service standards for processing applications 
subject to these cost recovery regulations; the agency's enhanced 
ability to satisfy the needs and expectations of applicants for and 
holders of special use authorizations; and reduction of environmental 
impacts and the liability of the United States associated with uses and 
occupancies that are continuing under expired authorizations. Moreover, 
if the agency fails to adopt this rule, many holders will continue to 
operate in a short-term manner under expired authorizations and will 
forego opportunities for long-term stability until the agency is 
appropriated the resources to conduct the analyses needed to issue 
longer-term authorizations.
Final Rule Certification
    Based on the cost-benefit and threshold Regulatory Flexibility Act 
analyses conducted for this rulemaking, 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 because it will not impose recordkeeping requirements 
on them; it will not affect their competitive position in relation to 
large entities; and it will not affect their cash flow, liquidity, or 
ability to remain in the market.

Federalism

    The Department has considered this final rule under the 
requirements of Executive Order 13132 on federalism. The Department has 
made a final assessment that the 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. Moreover, the 
cost recovery processing and monitoring fees set out in this final rule 
may be waived for local and State governmental entities that do not or 
would not charge processing or monitoring fees for comparable services 
they provide or would provide to the Forest Service. No further 
consultation with State and local governments is necessary upon 
adoption of this final rule.

No Takings Implications

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12630. It has been determined 
that this rule does not pose the risk of a taking of private property.

Civil Justice Reform

    This final rule has been reviewed under Executive Order 12988 on 
civil justice reform. After adoption of this final rule, (1) all State 
and local laws and regulations that conflict with this 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), which the President signed into law on March 22, 
1995, the Department has assessed the effects of this final rule on 
State, local, and Tribal governments and the private sector. This 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.

Energy Effects

    This final rule has been reviewed under Executive Order 13211 of 
May 18, 2001, ``Actions Concerning Regulations That Significantly 
Affect the Energy Supply.'' It has been determined that this final rule 
will not have an adverse effect on the supply, distribution, or use of 
energy. Conversely, the Department believes that this final rule will 
allow the Forest Service to respond more expeditiously to industry 
requests for use of NFS lands for energy and energy-related facilities 
by providing the Forest Service with additional resources to process 
applications for these facilities.

Consultation With Tribal Governments

    This final rule has been reviewed under Executive Order 13175 of 
November 6, 2000, ``Consultation and Coordination with Indian Tribal 
Governments.'' It has been determined that this final rule does not 
implicate the consultation provisions of that Executive Order.

Controlling Paperwork Burdens on the Public

    This final rule does not contain any recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 U.S.C. part 1320 that are not already required by law or not already 
approved for use. The information collection required as a result of 
this rule has been approved by OMB and assigned control 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.

Government Paperwork Elimination Act Compliance

    The Forest Service is committed to compliance with the Government 
Paperwork Elimination Act (GPEA), which requires Government agencies in 
general to provide the public the option

[[Page 8913]]

of submitting information or transacting business electronically to the 
maximum extent possible.

6. Revisions to 36 CFR Part 251, Subpart B

List of Subjects in 36 CFR Part 251

    Administrative practice and procedure, Electric power, National 
Forests, Public lands rights-of-way, Reporting and recordkeeping 
requirements, and Water resources.

0
Therefore, for the reasons set forth in the preamble, amend part 251, 
subpart B, to read as follows:

PART 251--LAND USES

Subpart B--Special Uses

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

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


0
2. Amend Sec.  251.51 by adding definitions for major category, minor 
category, and monitoring in alphabetical order, to read as follows:


Sec.  251.51  Definitions.

* * * * *
    Major category--A processing or monitoring category requiring more 
than 50 hours of agency time to process an application for a special 
use authorization (processing category 6 and, in certain situations, 
processing category 5) or more than 50 hours of agency time to monitor 
compliance with the terms and conditions of an authorization 
(monitoring category 6 and, in certain situations, monitoring category 
5). Major categories usually require documentation of environmental and 
associated impacts in an environmental assessment and may require an 
environmental impact statement.
    Minor category--A processing or monitoring category requiring 50 
hours or less of agency time to process an application for a special 
use authorization (processing categories 1 through 4 and, in certain 
situations, processing category 5) or 50 hours or less of agency time 
to monitor compliance with the terms and conditions of an authorization 
(monitoring categories 1 through 4 and, in certain situations, 
monitoring category 5). Minor categories may require documentation of 
environmental and associated impacts in an environmental assessment.
    Monitoring--Actions needed to ensure compliance with the terms and 
conditions in a special use authorization.
* * * * *

0
3. Add 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 
special use authorizations. Applicants and holders shall submit 
sufficient information for the authorized officer to estimate the 
number of hours required to process their applications or monitor their 
authorizations. Cost recovery fees are separate from any fees charged 
for the use and occupancy of National Forest System lands.
    (b) Special use applications and authorizations subject to cost 
recovery requirements. Except as exempted in paragraphs (g)(1) through 
(g)(4) of this section, the cost recovery requirements of this section 
apply in the following situations to the processing of special use 
applications and monitoring of special use authorizations issued 
pursuant to this subpart:
    (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 apply to any application formally accepted by 
the agency on or after March 23, 2006 and to any application formally 
accepted by the agency before March 23, 2006, which the agency has not 
commenced processing. Proposals accepted as applications which the 
agency has commenced processing prior to March 23, 2006 shall not be 
subject to processing fees. The cost recovery provisions of this 
section shall not apply to or supersede written agreements providing 
for recovery of processing costs executed by the agency and applicants 
prior to March 23, 2006.
    (2) Changes to existing authorizations. Processing fees apply to 
proposals that require an application to amend or formally approve 
specific activities or facilities as identified in an existing 
authorization, operating plan, or master development plan. Processing 
fees also apply to agency actions to amend a special use authorization.
    (3) Agency actions to issue a special use authorization and 
applications for issuance of a new special use authorization due to 
termination of an existing authorization, including termination caused 
by expiration, a change in ownership or control of the authorized 
facilities, or a change in ownership or control of the holder of the 
authorization. Upon termination of an existing authorization, a holder 
shall be subject to a processing fee for issuance of a new 
authorization, even if the holder's existing authorization does not 
require submission of an application for a new authorization.
    (4) Monitoring of authorizations issued or amended on or after 
March 23, 2006.
    (c) Processing fee requirements. A processing fee is required for 
each application for or agency action to issue 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 for processing fees. The processing fee categories 1 
through 6 set out in paragraphs (c)(2)(i) through (c)(2)(vi) of this 
section are based upon the costs that the Forest Service incurs in 
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. The processing fee for an application shall be based only 
on costs necessary for processing that application. ``Necessary for'' 
means that but for the application, the costs would not have been 
incurred and that the costs cover only those activities without which 
the application cannot be processed. The processing fee shall not 
include costs for studies for programmatic planning or analysis or 
other agency management objectives, unless they are necessary for the 
application being processed. For example, the processing fee shall not 
include costs for capacity studies, use allocation decisions, corridor 
or communications site planning, and biological studies that address 
species diversity, unless they are necessary for the application. 
Proportional costs for analyses, such as capacity studies, that are 
necessary for an application may be included in the processing fee for 
that application. The costs incurred for processing an application, and 
thus the processing fee, depend on the complexity of the project; the 
amount of information that is necessary for the authorized officer's 
decision in response to the proposed use and occupancy; and

[[Page 8914]]

the degree to which the applicant can provide this information to the 
agency. Processing work conducted by the applicant or a third party 
contracted by the applicant minimizes the costs the Forest Service will 
incur 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 case by case to determine the fee category.
    (i) Processing fee determinations. The applicable fee rate for 
processing applications in minor categories 1 through 4 (paragraphs 
(c)(2)(i) through (c)(2)(iv) of this section) shall be assessed from a 
schedule. The processing fee for applications in category 5, which may 
be either minor or major, shall be established in the master agreement 
(paragraph (c)(2)(v) of this section). For major category 5 (paragraph 
(c)(2)(v) of this section) and category 6 (paragraph (c)(2)(vi) of this 
section) cases, the authorized officer shall estimate the agency's full 
actual processing costs. The estimated processing costs for category 5 
and category 6 cases shall be reconciled as provided in paragraphs 
(c)(5)(ii) and (iii) and (c)(6)(ii) and (iii) of this section.
    (ii) Reduction in processing fees for certain category 6 
applications. For category 6 applications submitted under authorities 
other than the Mineral Leasing Act, the applicant:
    (A) May request a reduction of the processing fee based upon the 
applicant's written analysis of actual costs, the monetary value of the 
rights and privileges sought, that portion of the costs incurred for 
the benefit of the general public interest, the public service 
provided, the efficiency of the agency processing involved, and other 
factors relevant to determining the reasonableness of the costs. The 
agency will determine whether the estimate of full actual costs should 
be reduced based upon this analysis and will notify the applicant in 
writing of this determination; or
    (B) May agree in writing to waive payment of reasonable costs and 
pay the actual costs incurred in processing the application.
    (2) Processing fee categories. No fee is charged for applications 
taking 1 hour or less for the Forest Service to process. Applications 
requiring more than 1 hour for the agency to process are covered by the 
fee categories 1 through 6 set out in the following paragraphs i 
through vi.
    (i) Category 1: Minimal Impact: More than 1 hour and up to and 
including 8 hours. The total estimated time in this minor category is 
more than 1 hour and up to and including 8 hours for Forest Service 
personnel to process an application.
    (ii) Category 2: More than 8 and up to and including 24 hours. The 
total estimated time in this minor category is more than 8 and up to 
and including 24 hours for Forest Service personnel to process an 
application.
    (iii) Category 3: More than 24 and up to and including 36 hours. 
The total estimated time in this minor category is more than 24 and up 
to and including 36 hours for Forest Service personnel to process an 
application.
    (iv) Category 4: More than 36 and up to and including 50 hours. The 
total estimated time in this minor category is more than 36 and up to 
and including 50 hours for Forest Service personnel to process an 
application.
    (v) Category 5: 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 for a specified geographic area. 
This category is minor if 50 hours or less are needed for Forest 
Service personnel to process an application and major if more than 50 
hours are needed. In signing a master agreement for a major category 
application submitted under authorities other than the Mineral Leasing 
Act, an applicant waives the right to request a reduction of the 
processing fee based upon the reasonableness factors enumerated in 
paragraph (c)(1)(ii)(A) of this section. A master agreement shall at a 
minimum include:
    (A) The fee category or estimated processing costs;
    (B) A description of the method for periodic billing, payment, and 
auditing;
    (C) A description of the geographic area covered by the agreement;
    (D) A work plan and provisions for updating the work plan;
    (E) Provisions for reconciling differences between estimated and 
final processing costs; and
    (F) Provisions for terminating the agreement.
    (vi) Category 6: More than 50 hours. In this major 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.
    (3) Multiple applications other than those covered by master 
agreements (category 5). (i) Unsolicited applications where there is no 
competitive interest. Processing costs that are incurred in processing 
more than one of these applications (such as the cost of environmental 
analysis or printing an environmental impact statement that relates to 
all of the applications) must be paid in equal shares or on a prorated 
basis, as deemed appropriate by the authorized officer, by each 
applicant, including applicants for recreation special uses that are 
otherwise exempt under paragraph (g)(3) of this section when the Forest 
Service requires more than 50 hours in the aggregate to process the 
applications submitted in response to the prospectus.
    (ii) Unsolicited proposals where competitive interest exists. When 
there is one or more unsolicited proposals and the authorized officer 
determines that competitive interest exists, the agency shall issue a 
prospectus. All proposals accepted pursuant to that solicitation shall 
be processed as applications. The applicants are responsible for the 
costs of environmental analyses that are necessary for their 
applications and that are conducted prior to issuance of the 
prospectus. Processing fees for these cases shall be determined 
pursuant to the procedures for establishing a category 6 processing fee 
and shall include costs such as those incurred in printing and mailing 
the prospectus; having parties other than the Forest Service review and 
evaluate applications; establishing a case file; recording data; 
conducting financial reviews; and, for selected applicants, any 
additional environmental analysis required in connection with their 
applications. Processing fees shall be paid in equal shares or on a 
prorated basis, as deemed appropriate by the authorized officer, by all 
parties who submitted proposals that were processed as applications 
pursuant to the solicitation, including applicants for recreation 
special uses that are otherwise exempt under paragraph (g)(3) of this 
section when the Forest Service requires more than 50 hours in the 
aggregate to process the applications submitted in response to the 
prospectus.
    (iii) Solicited applications. When the Forest Service solicits 
applications through the issuance of a prospectus on its own 
initiative, rather than in response to an unsolicited proposal or 
proposals, the agency is responsible for the cost of environmental 
analyses conducted prior to issuance of the prospectus. All proposals 
accepted pursuant to that solicitation shall be processed as 
applications. Processing fees for these cases shall be determined 
pursuant to the procedures for establishing a category 6 processing fee 
and shall include costs such as those incurred in printing and mailing 
the

[[Page 8915]]

prospectus; having parties other than the Forest Service review and 
evaluate applications; establishing a case file; recording data; 
conducting financial reviews; and, for selected applicants, any 
additional environmental analysis required in connection with their 
applications. Processing fees shall be paid in equal shares or on a 
prorated basis, as deemed appropriate by the authorized officer, by all 
parties who submitted proposals that were processed as applications 
pursuant to the solicitation, including applicants for recreation 
special uses that are otherwise exempt under paragraph (g)(3) of this 
section when the Forest Service requires more than 50 hours in the 
aggregate to process the applications submitted in response to the 
prospectus.
    (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. The authorized officer shall 
not bill the applicant a processing fee until the agency is prepared to 
process the application.
    (ii) Revision of processing fees. Minor category processing fees 
shall not be reclassified into a higher minor category once the 
processing fee category has been determined. However, if the authorized 
officer discovers previously undisclosed information that necessitates 
changing a minor category processing fee to a major category processing 
fee, the authorized officer shall notify the applicant or holder of the 
conditions prompting a change in the processing fee category in writing 
before continuing with processing the application. The applicant or 
holder may accept the revised processing fee category and pay the 
difference between the previous and revised processing categories; 
withdraw the application; revise the project to lower the processing 
costs; or request review of the disputed fee as provided in paragraphs 
(e)(1) through (e)(4) of this section.
    (5) Payment of processing fees. (i) Payment of a processing fee 
shall be due within 30 days of issuance of a bill for the fee, 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 and occupancy.
    (ii) For category 5 cases, when the estimated processing costs are 
lower than the final processing costs for applications covered by a 
master agreement, the applicant shall pay the difference between the 
estimated and final processing costs.
    (iii) For category 6 cases, when the estimated processing fee is 
lower than the full actual costs of processing an application submitted 
under the Mineral Leasing Act, or lower than the full reasonable costs 
(when the applicant has not waived payment of reasonable costs) of 
processing an application submitted under other authorities, the 
applicant shall pay the difference between the estimated and full 
actual or reasonable processing costs.
    (6) Refunds of processing fees. (i) Processing fees in minor 
categories 1 through 4 are nonrefundable and shall not be reconciled.
    (ii) For category 5 cases, if payment of the processing fee exceeds 
the agency's final processing costs for the applications covered by a 
master agreement, the authorized officer either shall refund the excess 
payment to the applicant or, at the applicant's request, shall credit 
it towards monitoring fees due.
    (iii) For category 6 cases, if payment of the processing fee 
exceeds the full actual costs of processing an application submitted 
under the Mineral Leasing Act, or the full reasonable costs (when the 
applicant has not waived payment of reasonable costs) of processing an 
application submitted under other authorities, the authorized officer 
either shall refund the excess payment to the applicant or, at the 
applicant's request, shall credit it towards monitoring fees due.
    (iv) For major category 5 and category 6 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 major category 5 or category 6 application, the applicant 
also is responsible for any costs subsequently incurred by the Forest 
Service in terminating consideration of the application.
    (7) Customer service standards. The Forest Service shall endeavor 
to make a decision on an application that falls into minor processing 
category 1, 2, 3, or 4, and that is subject to a categorical exclusion 
pursuant to the National Environmental Policy Act, within 60 calendar 
days from the date of receipt of the processing fee. If the application 
cannot be processed within the 60-day period, then prior to the 30th 
calendar day of the 60-day period, the authorized officer shall notify 
the applicant in writing of the reason why the application cannot be 
processed within the 60-day period and shall provide the applicant with 
a projected date when the agency plans to complete processing the 
application. For all other applications, including all applications 
that require an environmental assessment or an environmental impact 
statement, the authorized officer shall, 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. These 
customer service standards do not apply to applications that are 
subject to a waiver of or exempt from cost recovery fees under 
Sec. Sec.  251.58(f) or (g).
    (d) Monitoring fee requirements. The monitoring fee for an 
authorization shall be assessed independently of any fee charged 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 fees in minor categories 1 through 4, 
authorization holders are assessed fees based upon the estimated time 
needed for Forest Service monitoring to ensure compliance with the 
authorization during the construction or reconstruction of temporary or 
permanent facilities and rehabilitation of the construction or 
reconstruction site. Major category 5 and category 6 monitoring fees 
shall be based upon the agency's estimated costs to ensure compliance 
with the terms and conditions of the authorization during all phases of 
its term, including but not limited to monitoring to ensure compliance 
with the authorization during the construction or reconstruction of 
temporary or permanent facilities and rehabilitation of the 
construction or reconstruction site. Monitoring for all categories does 
not include billings, maintenance of case files, annual performance 
evaluations, or scheduled inspections to determine compliance generally 
with the terms and conditions of an authorization.
    (i) Monitoring fee determinations. The applicable fee rate for 
monitoring compliance with authorizations in minor categories 1 through 
4 (paragraphs (d)(2)(i) through (d)(2)(iv) of this section) shall be 
assessed from a schedule. The monitoring fee for authorizations in 
category 5, which may be minor or major, shall be established

[[Page 8916]]

in the master agreement (paragraph (d)(2)(v) of this section). For 
major category 5 (paragraph (d)(2)(v) of this section) and category 6 
(paragraph (d)(2)(vi) of this section) cases, the authorized officer 
shall estimate the agency's full actual monitoring costs. The estimated 
monitoring costs for category 5 and category 6 cases shall be 
reconciled as provided in paragraphs (d)(3)(ii) and (iii) and 
(d)(4)(ii) and (iii) of this section.
    (ii) Reductions in monitoring fees for certain category 6 
authorizations. For category 6 authorizations issued under authorities 
other than the Mineral Leasing Act, the holder:
    (A) May request a reduction of the monitoring fee based upon the 
holder's written analysis of actual costs, the monetary value of the 
rights or privileges granted, that portion of the costs incurred for 
the benefit of the general public interest, the public service 
provided, the efficiency of the agency monitoring involved, and other 
factors relevant to determining the reasonableness of the costs. The 
agency will determine whether the estimate of full actual costs should 
be reduced based upon this analysis and will notify the holder in 
writing of this determination; or
    (B) May agree in writing to waive payment of reasonable costs and 
pay the actual costs incurred in monitoring the authorization.
    (2) Monitoring fee categories. No monitoring fee is charged for 
authorizations requiring 1 hour or less for the Forest Service to 
monitor. Authorizations requiring more than1 hour for the agency to 
monitor are covered by fee categories 1 through 6 set out in the 
following paragraphs (d)(2)(i) through (vi) of this section.
    (i) Category 1: Minimal Impact: More than 1 hour and up to and 
including 8 hours. This minor category requires more than1 hour and up 
to and including 8 hours for Forest Service personnel to monitor 
compliance with a special use authorization during construction or 
reconstruction of temporary or permanent facilities and rehabilitation 
of the construction or reconstruction site.
    (ii) Category 2: More than 8 and up to and including 24 hours. This 
minor category requires more than 8 and up to and including 24 hours 
for Forest Service personnel to monitor compliance with a special use 
authorization during construction or reconstruction of temporary or 
permanent facilities and rehabilitation of the construction or 
reconstruction site.
    (iii) Category 3: More than 24 and up to and including 36 hours. 
This minor category requires more than 24 and up to and including 36 
hours for Forest Service personnel to monitor compliance with a special 
use authorization during construction or reconstruction of temporary or 
permanent facilities and rehabilitation of the construction or 
reconstruction site.
    (iv) Category 4: More than 36 and up to and including 50 hours. 
This minor category requires more than 36 and up to and including 50 
hours for Forest Service personnel to monitor compliance with a special 
use authorization during construction or reconstruction of temporary or 
permanent facilities and rehabilitation of the construction or 
reconstruction site.
    (v) Category 5: Master agreements. The Forest Service and the 
holder of an authorization may enter into a master agreement for the 
agency to recover monitoring costs associated with a particular 
authorization or by a group of authorizations for a specified 
geographic area. This category is minor if 50 hours or less are needed 
for Forest Service personnel to monitor compliance with an 
authorization and major if more than 50 hours are needed. In signing a 
master agreement for a major category authorization issued under 
authorities other than the Mineral Leasing Act, a holder waives the 
right to request a reduction of the monitoring fee based upon the 
reasonableness factors enumerated in paragraph (d)(1)(ii)(A) of this 
section. A master agreement shall at a minimum include:
    (A) The fee category or estimated monitoring costs;
    (B) A description of the method for periodic billing, payment, and 
auditing of monitoring fees;
    (C) A description of the geographic area covered by the agreement;
    (D) A monitoring work plan and provisions for updating the work 
plan;
    (E) Provisions for reconciling differences between estimated and 
final monitoring costs; and
    (F) Provisions for terminating the agreement.
    (vi) Category 6: More than 50 hours. This major category requires 
more than 50 hours for Forest Service personnel to monitor compliance 
with the terms and conditions of the authorization during all phases of 
its term, including, but not limited, to monitoring compliance with the 
authorization during the construction or reconstruction of temporary or 
permanent facilities and rehabilitation of the construction or 
reconstruction site.
    (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. Monitoring fees in minor categories 1 through 4 
must be paid in full before or at the same time the authorization is 
issued. For authorizations in major category 5 and category 6, 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) For category 5 cases, when the estimated monitoring costs are 
lower than the final monitoring costs for authorizations covered by a 
master agreement, the holder shall pay the difference between the 
estimated and final monitoring costs.
    (iii) For category 6 cases, when the estimated monitoring fee is 
lower than the full actual costs of monitoring an authorization issued 
under the Mineral Leasing Act, or lower than the full reasonable costs 
(when the holder has not waived payment of reasonable costs) of 
monitoring 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 full actual or reasonable monitoring costs. Payment shall be due 
within 30 days of receipt of the bill.
    (4) Refunds of monitoring fees. (i) Monitoring fees in minor 
categories 1 through 4 are nonrefundable and shall not be reconciled.
    (ii) For category 5 cases, if payment of the monitoring fee exceeds 
the agency's final monitoring costs for the authorizations covered by a 
master agreement, the authorized officer shall either adjust the next 
periodic payment to reflect the overpayment or refund the excess 
payment to the holder.
    (iii) For category 6 cases, if payment of the monitoring fee 
exceeds the full actual costs of monitoring an authorization issued 
under the Mineral Leasing Act, or the full reasonable costs (when the 
holder has not waived payment of reasonable costs) of monitoring an 
authorization issued under other authorities, the authorized officer 
shall either adjust the next periodic payment to reflect the 
overpayment or 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 
estimated costs. (1) If an applicant or holder disagrees with the 
processing or monitoring fee category

[[Page 8917]]

assigned by the authorized officer for a minor category or, in the case 
of a major processing or monitoring category, with the estimated dollar 
amount of the processing or monitoring costs, the applicant or holder 
may submit a written request before the disputed fee is due for 
substitution of an alternative fee category or alternative estimated 
costs to the immediate supervisor of the authorized officer who 
determined the fee category or estimated costs. The applicant or holder 
must provide documentation that supports the alternative fee category 
or estimated costs.
    (2) In the case of a disputed processing fee:
    (i) If the applicant pays the full disputed processing fee, the 
authorized officer shall continue to process the application during the 
supervisory officer's review of the disputed fee, unless the applicant 
requests that the processing cease.
    (ii) If the applicant fails to pay the full disputed processing 
fee, the authorized officer shall suspend further processing of the 
application pending the supervisory officer's determination of an 
appropriate processing fee and the applicant's payment of that fee.
    (3) In the case of a disputed monitoring fee:
    (i) If the applicant or holder pays the full disputed monitoring 
fee, the authorized officer shall issue the authorization or allow the 
use and occupancy to continue during the supervisory officer's review 
of the disputed fee, unless the applicant or holder elects not to 
exercise the authorized use and occupancy of National Forest System 
lands during the review period.
    (ii) If the applicant or holder fails to pay the full disputed 
monitoring fee, the authorized officer shall not issue the applicant a 
new authorization or shall suspend the holder's existing authorization 
in whole or in part pending the supervisory officer's determination of 
an appropriate monitoring fee and the applicant's or holder's payment 
of that fee.
    (4) The authorized officer's immediate supervisor shall render a 
decision on a disputed processing or monitoring fee within 30 calendar 
days of receipt of the written request from the applicant or holder. 
The supervisory officer's decision is the final level of administrative 
review. The dispute shall be decided in favor of the applicant or 
holder if the supervisory officer does not respond to the written 
request within 30 days of receipt.
    (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 or holder is a local, State, or Federal 
governmental entity that does not or would not charge processing or 
monitoring fees for comparable services the applicant or holder 
provides or would provide to the Forest Service;
    (ii) A major portion of the processing costs results from issues 
not related to the project being proposed;
    (iii) The application is for 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 application is for a new authorization to relocate 
facilities or activities to comply with public health and safety or 
environmental 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 activities because the land is needed by a Federal agency 
or for a Federally funded project for an alternative public purpose; or
    (vi) The proposed facility, project, or use will provide, without 
user or customer charges, a valuable benefit to the general public or 
to the programs 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 
paragraphs (f)(1)(i) through (f)(1)(vi) of this section apply.
    (g) Exemptions from processing or monitoring fees. No processing or 
monitoring fees shall be charged when the application or authorization 
is for a:
    (1) Noncommercial group use as defined in Sec.  251.51, or when the 
application or authorization is to exempt a noncommercial activity from 
a closure order, except for an application or authorization 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)).
    (2) Water systems authorized by section 501(c) of the Federal Land 
Policy and Management Act of 1976 (43 U.S.C. 1761(c)).
    (3) A use or activity conducted by a Federal agency that is not 
authorized under Title V of the Federal Land Policy and Management Act 
of 1976 (43 U.S.C. 1761-1771); the Mineral Leasing Act of 1920 (30 
U.S.C. 185); the National Historic Preservation Act of 1966 (16 U.S.C. 
470h-2); or the Act of May 26, 2000 (16 U.S.C. 460l-6d).
    (4) Recreation special use as defined in the Forest Service's 
directive system and requires 50 hours or less for Forest Service 
personnel to process, except for situations involving multiple 
recreation special use applications provided for in paragraph (c)(3) of 
this section. No monitoring fees shall be charged for a recreation 
special use authorization that requires 50 hours or less for Forest 
Service personnel to monitor.
    (h) Appeal of decisions. (1) A decision by the authorized officer 
to assess a processing or monitoring fee or to determine the fee 
category or estimated costs is not subject to administrative appeal.
    (2) A decision by an authorized officer's immediate supervisor in 
response to a request for substitution of an alternative fee category 
or alternative estimated costs likewise is not subject to 
administrative appeal.
    (i) Processing and monitoring fee schedules. (1) The Forest Service 
shall maintain schedules for processing and monitoring fees in its 
directive system (36 CFR 200.4). The rates in the schedules shall be 
updated annually by 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 the changes in the 
rates either up or down to the nearest dollar.
    (2) Within 5 years of the effective date of this rule, March 23, 
2006, the Forest Service shall review these rates:
    (i) To determine whether they are commensurate with the actual 
costs incurred by the agency in conducting the processing and 
monitoring activities covered by this rule 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 9, 2005.
David P. Tenny,
Deputy Under Secretary, Natural Resources and Environment.

    Note: The following table will not appear in 36 CFR part 251, 
subpart B.

7. Summary and Comparison of Provisions in the Proposed and Final Rules

[[Page 8918]]



------------------------------------------------------------------------
          Provision               Proposed Rule          Final Rule
------------------------------------------------------------------------
Sec.   251.51--Definitions..  (1) The definition    (1) Revises the
                               for monitoring was    definition for
                               based on the total    monitoring to
                               number of hours       reflect that this
                               required to ensure    action occurs in
                               compliance with the   administration of
                               terms and             special uses
                               conditions of an      generally. Narrows
                               authorization         the scope of
                               during construction   monitoring fees in
                               or reconstruction     Sec.   251.58(d)(1)
                               activities and the    (see below).
                               time needed to
                               monitor the
                               operational phase
                               of the authorized
                               use for 1 year.
                              (2) Definitions were  (2) Adds definitions
                               included for          for major and minor
                               different types of    processing and
                               processing and        monitoring fee
                               monitoring            categories.
                               categories.
Sec.   251.58(a)--Assessment  Provided an overview  No change.
 of fees to recover agency     of cost recovery.
 processing and monitoring
 costs.
Sec.   251.58(b)--Special      (1) Sec.             (1) Clarifies that
 use applications and          251.58(b)(1)          existing cost
 authorizations subject to     through (b)(3)        recovery agreements
 cost recovery requirements.   described             between the Forest
                               situations in which   Service and
                               the processing fee    applicants and
                               would be applied.     holders will not be
                              (2) Sec.               affected by this
                               251.58(b)(4)          rule and that no
                               specified that        cost recovery fees
                               monitoring fees       will be assessed
                               would be applied to   for proposals
                               special use           accepted as
                               authorizations        applications which
                               issued or amended     the agency has
                               on or after the       commenced
                               date of adoption of   processing prior to
                               the final rule.       adoption of the
                                                     final rule.
                                                    (2) No change.
Sec.   251.58(c)--Processing  (1) Sec.              (1) More clearly
 fee requirements.             251.58(c)(1)          enumerates those
                               described agency      actions that are
                               actions that would    the applicant's
                               require applicants    responsibility to
                               to pay processing     fund under NEPA and
                               fees.                 provides examples
                                                     to illustrate the
                                                     costs for which the
                                                     applicant is
                                                     responsible and
                                                     costs for which the
                                                     agency is
                                                     responsible.
                                                    (2) Sec.
                                                     251.58(c)(2)
                                                     provided for a
                                                     schedule of 6
                                                     processing fee
                                                     categories
                                                    (2) Retains all
                                                     categories in the
                                                     final rule, except
                                                     that the final rule
                                                     enumerates fee
                                                     categories with
                                                     Arabic numbers
                                                     instead of alpha-
                                                     Roman numerals;
                                                     adds catgory 1,
                                                     minimal impact (> 1
                                                     and < 8 hours) for
                                                     applications
                                                     processed under the
                                                     MLA; renumbers the
                                                     previous processing
                                                     fee category B-IV
                                                     (> 50 hours) as
                                                     processing fee
                                                     category 6; and
                                                     redesignates the
                                                     previous processing
                                                     fee category C,
                                                     Master Agreements,
                                                     as category 5,
                                                     master agreements.
                              (3) Sec.              (3) Changes the
                               251.58(c)(3)          paragraph heading
                               addressed how         to ``Multiple
                               processing costs      applications other
                               would be assessed     than those covered
                               when two or more      by master
                               applicants apply      agreements
                               and compete for one   (category 5)'' and
                               use.                  provides clearer
                                                     direction involving
                                                     situations in which
                                                     multiple
                                                     applications are
                                                     being processed for
                                                     the same or similar
                                                     uses and
                                                     occupancies.
                              (4) Sec.              (4) Modifies this
                               251.58(c)(4)          provision to state
                               described             that minor category
                               determination,        processing fees
                               billing, and          will not be
                               revision of           reclassified into a
                               processing fees.      higher minor
                                                     category after the
                                                     processing fee
                                                     category has been
                                                     determined.
                              (5) Sec.              (5) Inserts a
                               251.58(c)(5)          provision,
                               described the         paragraph
                               procedures for        (c)(54)(ii), to
                               paying processing     address
                               fees.                 underpayment of
                                                     category 5
                                                     processing fees.
                              (6) Sec.              (6) Inserts a
                               251.58(c)(6)          provision,
                               described the         paragraph
                               procedures for        (c)(6)(ii), to
                               refunding             address overpayment
                               processing fees.      of category 5
                                                     processing fees.
Sec.   s251.58(d)--           (1) Sec.              (1) Limits the basis
 Monitoring fee requirements.  251.58(d)(1)          for assessment of
                               described the basis   monitoring fees for
                               for monitoring fees.  minor categories to
                                                     the agency's time
                                                     to monitor
                                                     construction or
                                                     reconstruction of
                                                     facilities and
                                                     rehabilitation of
                                                     the construction or
                                                     reconstruction
                                                     site. For major
                                                     categories,
                                                     authorizes
                                                     monitoring fees to
                                                     be charged for the
                                                     agency's time
                                                     required to ensure
                                                     compliance with the
                                                     terms and
                                                     conditions of an
                                                     authorization
                                                     during all phases
                                                     of its term.

[[Page 8919]]

 
                              (2) Sec.              (2) Like the
                               251.58(d)(2)          processing fee
                               provided for a        schedules, provides
                               schedule of 5         for 6 monitoring
                               monitoring fee        fee categories.
                               categories for non-   Adds a category 1,
                               MLA authorizations    minimal impact (> 1
                               and 4 monitoring      and <= 8 hours),
                               fee categories for    and adjusts the
                               MLA authorizations.   hourly range for
                                                     monitoring fee
                                                     category 2 to > 8
                                                     and <= 24 hours for
                                                     both monitoring fee
                                                     schedules. The
                                                     final rule
                                                     enumerates fee
                                                     categories with
                                                     Arabic numbers
                                                     instead of alpha-
                                                     Roman numerals;
                                                     adds a master
                                                     agreement
                                                     monitoring fee
                                                     category 5 for all
                                                     uses; and
                                                     redesignates the
                                                     former category B-
                                                     IV (> 50 hours) as
                                                     category 6.
                              (3) Sec.              (3) Inserts a
                               251.58(d)(3)          provision,
                               allowed the holder    paragraph
                               to pay the            (d)(3)(ii), to
                               monitoring fee in     address
                               installments.         underpayment of
                                                     category 5
                                                     monitoring fees.
                              (4) Sec.              (4) Inserts a
                               251.58(d)(4)          provision,
                               specified that        paragraph
                               monitoring fees in    (d)(4)(ii), to
                               categories B-1        address overpayment
                               through B-III are     of category 5
                               nonrefundable and     monitoring fees.
                               enumerated the        Redesignates the
                               conditions under      category
                               which monitoring      references.
                               category B-IV fees
                               would be refunded.
Sec.   251.58(e)--Applicant   (1) Sec.              (1) Allows the
 and holder disputes           251.58(e)(1)          applicant or holder
 concerning processing and     provided that the     to submit a written
 monitoring fee assessments;   applicant or holder   request before the
 requests for changes in fee   may submit a          disputed fee is due
 categories or estimated       written request to    for substitution of
 costs.                        the authorized        an alternative fee
                               officer to change     category or
                               the fee category or   alternative
                               estimated costs.      estimated costs to
                                                     the immediate
                                                     supervisor of the
                                                     authorized officer
                                                     who determined the
                                                     fee category or
                                                     estimated costs.
                              (2) Sec.              (2) Revises these
                               251.58(e)(2) and      paragraphs to
                               (e)(3) suspended      provide that the
                               processing of the     supervisory officer
                               application or the    must make a
                               authorized use and    decision on the
                               occupancy when a      disputed fee within
                               processing or         30 calendar days of
                               monitoring fee is     receipt of the
                               disputed.             written request
                                                     from the applicant
                                                     or holder. The
                                                     dispute will be
                                                     decided in favor of
                                                     the applicant or
                                                     holder if the
                                                     supervisory officer
                                                     does not respond to
                                                     the written request
                                                     within 30 days of
                                                     receipt. In
                                                     addition, provides
                                                     that authorizations
                                                     and processing of
                                                     applications will
                                                     not be suspended
                                                     pending review if
                                                     the holder or
                                                     applicant pays the
                                                     disputed fee in
                                                     full.
Sec.   251.58(f)--Waivers of  (1) Sec.              (1) Clarifies when
 processing and monitoring     251.58(f)(1)(i)       waivers to
 fees.                         provided waiver to    governmental
                               local, State, or      entities are
                               Federal               appropriate.
                               governmental
                               entities that waive
                               fees for comparable
                               services provided
                               to the Forest
                               Service.
                              (2) Sec.              (2) No change.
                               251.58(f)(1)(ii)
                               authorized a waiver
                               when a major
                               portion of the
                               processing costs
                               results from issues
                               not related to the
                               project being
                               proposed.
                              (3) Sec.              (3) No change.
                               251.58(f)(1)(iii)
                               authorized a waiver
                               of processing fees
                               for proposals to
                               mitigate damage to
                               real property or
                               hazards to public
                               health and safety
                               resulting from an
                               act of God, an act
                               of war, or
                               negligence of the
                               United States.
                              (4) Sec.              (4) No change.
                               251.58(f)(1)(iv)-(v
                               ) authorized a
                               waiver of
                               processing fees for
                               applications for
                               new authorizations
                               to relocate
                               facilities or
                               activities to
                               comply with public
                               health and safety
                               or environmental
                               laws and
                               regulations that
                               were not in effect
                               at the time the
                               authorization was
                               issued, or because
                               the land is needed
                               by a Federal agency
                               or a Federally
                               funded project for
                               an alternative
                               public purpose.
                              (5) Sec.              (5) Removes
                               251.58(f)(1)(vi)(A)   nonprofit status as
                               and (B) authorized    a criterion for
                               waivers to            waivers of
                               nonprofit entities    processing fees
                               in processing their   under this
                               applications when     provision. Removes
                               the studies           Sec.
                               undertaken had a      251.58(f)(vi)(A),
                               public benefit or     redesignates Sec.
                               the proposed          251.58(f)(vi)(B) as
                               facility or project   Sec.
                               provided a free       251.58(f)(vi), and
                               service to the        clarifies its text.
                               public or supported
                               a program of the
                               Secretary of
                               Agriculture.
                              (6) Sec.              (6) No change.
                               251.58(f)(2)
                               required that
                               requests for
                               waivers be made in
                               writing.

[[Page 8920]]

 
Sec.   251.58(g)--Exemptions  Sec.   251.58(g)      Add an exemption
 from processing or            provided a            from processing and
 monitoring fees.              processing and        monitoring fees for
                               monitoring fee        applications and
                               exemption for         authorizations for
                               noncommercial group   water systems
                               uses and activities   authorized by 43
                               otherwise             U.S.C. 1761(c).
                               prohibited by a       Adds an exemption
                               closure order,        from processing and
                               other than access     monitoring fees for
                               to non-Federal        applications and
                               lands within the      authorizations for
                               boundaries of the     recreation special
                               National Forest       uses, as defined in
                               System granted        FSM 2700, that
                               pursuant to section   require 50 hours or
                               1323(a) of ANILCA.    less to process or
                                                     monitor.
Sec.   251.58(h)--Appeal of   Sec.   251.58(h)      No change.
 decisions.                    provided that
                               assessment of
                               processing and
                               monitoring fees is
                               not subject to the
                               Forest Service's
                               administrative
                               appeal process for
                               special uses.
Sec.   251.58(i)--Processing  (1) Sec.              (1) No change.
 and monitoring fee            251.58(i)(1)
 schedules.                    provided that
                               processing and
                               monitoring fee
                               schedules will be
                               maintained in the
                               Forest Service's
                               directive system
                               and will be updated
                               annually using the
                               IPD-GDP.
                              (2) Sec.              (2) Amends this
                               251.58(i)(2)          paragraph to
                               provided for a        provide for a
                               review of the cost    review of the rates
                               recovery rates on     within 5 years of
                               the 5-year            the effective date
                               anniversary of the    of the final rule.
                               effective date of
                               the final rule.
------------------------------------------------------------------------

[FR Doc. 06-1444 Filed 2-17-06; 8:45 am]
BILLING CODE 3410-11-P