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

SUMMARY: The Forest Service proposes to promulgate regulations for

recovering costs associated with processing applications for special

use authorizations to use and occupy National Forest System lands and

monitoring compliance with these special use authorizations. The

provisions of this proposed rule would apply to applications and

authorizations for use of National Forest System lands, including

situations in which the land use fee may be waived or exempted, such as

facilities financed or eligible to be financed with a loan pursuant to

the Rural Electrification Act of 1936 and applications and

authorizations involving Federal, State, and local government entities.

The provisions of this proposed rule would not apply to applications

and authorizations for noncommercial group uses and other uses

specifically exempted. In addition, the provisions of this proposed

rule would not apply to those applications or authorizations for which

processing and/or monitoring fees already are being collected by

another Federal agency on behalf of the Forest Service. Public comment

is invited and will be considered in development of the final rule.

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

ADDRESSES: Send written comments to Director, Lands Staff, 2720, 4th

Floor-South, Sidney R. Yates Federal Building, Forest Service, USDA,

P.O. Box 96090, Washington, D.C. 20090-6090. Submit electronic comments

(as an ASCII file if possible) to: gtlands4/[email protected]. Refer to the

SUPPLEMENTARY INFORMATION: Section for further information on written

comments and electronic filing. All comments, including names and

addresses when provided, are placed in the record and are available for

public inspection and copying.

The public may inspect comments received on this proposed rule in

the Office of the Director, Lands Staff, 4th Floor-South, Sidney R.

Yates Federal Building, 14th Street and Independence Avenue, SW,

Washington, D.C., between the hours of 8:30 a.m. and 4:30 p.m. on

business days. Those wishing to inspect comments are encouraged to call

ahead at (202) 205-1256 to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT: Randy Karstaedt, Lands Staff, (202)

205-1256 or Alice Carlton, Recreation, Heritage, and Wilderness

Resources Staff, (202) 205-1145.

SUPPLEMENTARY INFORMATION:

1. Electronic Access and Filing

2. Written Comments

3. Interagency Coordination

4. Background

5. Analysis of Proposed Rule

6. Regulatory Requirements

1. Electronic Access and Filing

You may view an electronic version of this proposed rule at the

Forest Service Internet home page at: http://www.fs.fed.us/recreation/

permits/. You may also comment via the Internet to: gtlands4/

[email protected]. If you submit comments electronically, please submit

them, if possible, as an ASCII text file to minimize computer problems

and include your name and return mailing address in your Internet

message.

2. Written Comments

Please confine written comments to issues pertinent to the proposed

rule and explain the reasons for any recommended changes. Where

possible, reference the specific section or paragraph you are

addressing. The Forest Service may not include in the administrative

record for the proposed rule those comments it receives after the

comment period closes (see DATES) or comments delivered to an address

other than those listed in ADDRESSES. All comments, including the

names, street addresses, and other contact information about

respondents will be available for public review at the above address

during regular business hours (8:30 a.m. to 4:30 p.m.), Monday through

Friday, except holidays. Those wishing to inspect comments are

encouraged to call ahead, (202) 205-1256, to facilitate access to the

building.

3. Interagency Coordination

The United States Department of the Interior, Bureau of Land

Management (BLM), recently proposed revisions to its cost recovery

procedures, policies, and fees for processing and administering rights-

of-way at 43 CFR parts 2800 and 2808 (64 FR 32105, June 15, 1999). To

the extent possible, the Forest Service is proposing to adopt

procedures, policies, and fee schedules for cost recovery related to

special use applications and authorizations consistent with BLM's rule.

In addition to considering comments in response to its proposed rule,

the Forest Service will consider comments received in response to BLM's

proposed rule in developing the final Forest Service rule. Promulgation

of consistent cost recovery regulations and adoption of the same fees

by the Forest Service and BLM will benefit both agencies and the

public, particularly those who need or already hold an authorization to

use and occupy Federal lands administered by both agencies.

4. Background

The Forest Service proposes to issue regulations concerning the

recovery of costs for processing applications for special use

authorizations issued pursuant to 36 CFR part 251, subpart B, and

monitoring compliance with these authorizations. Approximately 74,000

special use authorizations are in effect on National Forest System

lands. These uses cover a variety of activities, ranging from

individual private uses to large-scale commercial facilities, and

public services. Examples of authorized land uses include road rights-

of-way serving private residences, apiaries, domestic water supply

conveyance systems, telephone and electric service rights-of-way, oil

and gas pipeline rights-of-way, hydroelectric power generating

facilities, ski areas, resorts, marinas, municipal sewage treatment

plants, and public parks and playgrounds. The agency receives about

6,000 applications for special use authorizations each year. These

applications are subjected to a rigorous decisionmaking process in

determining whether to approve or reject them. In 1998, the Forest

Service adopted a final rule at 36 CFR part 251, subpart B,

streamlining and extensively revising the agency's application process

and administration of special use authorizations (63 FR 65949, November

30, 1998).

There are 14 statutes authorizing special uses on National Forest

System lands. These authorities, which are listed at 36 CFR 251.53,

include statutes of broad application, such as the Mineral Leasing Act

of 1920, the Federal Land Policy and Management Act of 1976, and the

Bankhead-Jones Farm Tenant Act of 1937, as well as statutes focusing on

a specific use of Federal lands, such as the National Forest Ski Area

Permit Act. The basic authority of the Secretary of Agriculture to

regulate the occupancy and use of National

[[Page 66343]]

Forest System lands is the Act of June 4, 1897 (16 U.S.C. 551).

Additionally, the Independent Offices Appropriations Act of 1952,

as amended (IOAA; 31 U.S.C. 9701), and the Office of Management and

Budget (OMB) Circular No. A-25 require holders of authorizations to pay

for the use of the Federal land. The Federal Land Policy and Management

Act requires holders of rights-of-way authorizations to pay annually,

in advance, the fair market value of the use of the Federal land and

its resources. The Federal Land Policy and Management Act also provides

that fees may be waived, in whole or in part, under specified

conditions when equitable and in the public interest.

Requirements of the National Environmental Policy Act, the

Wilderness Act of 1964, the Endangered Species Act, the Archaeological

Resources Protection Act of 1979, additional requirements of the

Federal Land Policy and Management Act of 1976, and Executive Order

Nos. 11998 (Floodplains) and 11990 (Wetlands) also bear directly on the

issuance of special use authorizations. These directives and statutory

authorities require extensive analysis and documentation of the impacts

of use and occupancy on a wide array of environmental, cultural, and

historical resources. The practical effect of these requirements has

been to lengthen the time required and increase the cost associated in

processing applications for authorizations for new uses and for

existing uses. The time and cost impacts weigh on both the Forest

Service and the applicants and holders of authorizations. The

significance of these impacts has been a principal factor in the

development of this proposed cost recovery rule. These impacts also

were a major factor in the previous development of the agency's final

rule at 36 CFR part 251, subpart B, streamlining its special uses

application process and administration of special use authorizations

(63 FR 65949, November 30, 1998).

With limited funds, staffing, and other resources to manage its

special uses program, the agency has found it increasingly difficult to

provide timely reviews and evaluations of special use applications

using appropriated funds. It is also difficult for the agency to ensure

authorized facilities are constructed and operated in compliance with

existing special use authorizations. The agency has a significant

backlog of special use applications to which it has been unable to

respond in a manner that satisfies the needs and expectations of

special use applicants.

The agency has been able to provide timely responses to those

applicants who have voluntarily offered to fund agency costs to review

and process their applications for a particular proposed use and

occupancy. However, without the appropriate regulatory authority, there

is no means of requiring an applicant to pay for the agency's costs of

processing applications and monitoring compliance with authorizations.

The IOAA authorizes all agencies of the Federal Government to

recover costs associated with providing goods and services that benefit

an identifiable recipient. This provision applies to costs incurred by

the Forest Service in processing special use applications and

monitoring compliance with special use authorizations. Charges imposed

under the authority of the IOAA must, among other requirements, be fair

and must be based on the costs to the Federal Government and the value

of the goods or services to the recipient.

Government-wide direction for implementing the cost recovery

provisions of the IOAA is in OMB Circular No. A-25. Section 7 of this

circular directs that user charges be instituted through the

promulgation of agency regulations. Adoption of this proposed rule

would comply with the requirements of OMB Circular No. A-25.

In the past 10 years, the U.S. General Accounting Office (GAO) and

the U.S. Department of Agriculture's Office of Inspector General have

conducted more than 15 reviews or audits of various aspects of the

Forest Service's special uses program. Two of the more recent audits,

GAO Report #RCED-96-84 (April 1996) and GAO Report #RCED-97-16

(December 1996), recommended that the Forest Service (1) Operate its

special uses program in a more cost-efficient and businesslike manner

and (2) Promulgate regulations to allow the agency to exercise existing

statutory authorities to recover from applicants and holders the

agency's costs to process special use applications and monitor

compliance with special use authorizations.

In April 1997, the Forest Service completed a reengineering study

of its special uses program. The study identified changes needed to

manage the program in a more businesslike and customer-service-oriented

manner. The study also cited the need for regulations enabling the

agency to exercise its existing cost recovery authorities. Recovery of

processing and monitoring costs would provide additional funding for

the agency to respond more promptly to special use applications, to

monitor compliance with authorizations more effectively, and to satisfy

the needs and expectations of applicants and holders.

The Forest Service would use the processing and monitoring fees

paid by applicants to fund the time that the agency spends on the

decisionmaking process in response to applications for the use and

occupancy of National Forest System lands; to prepare and issue special

use authorizations in those cases where the agency decides to authorize

the proposed use and occupancy; and to monitor compliance with the

terms and conditions of special use authorizations.

An applicant would also be assessed a processing fee for agency

costs to conduct an environmental analysis and prepare associated

documentation as required by the National Environmental Policy Act.

These tasks are the applicant's responsibility as provided in 36 CFR

251.54. The processing fee would be commensurate with the agency's time

and expense in processing each application, and would include the

collection of all data and information needed for the agency to (1)

Fully describe the proposed use; (2) Identify and evaluate the

environmental effects of the proposed use; and (3) Make a decision in

response to the application. Applicants would be encouraged to fulfill

these responsibilities from sources other than limited agency personnel

and resources to maintain the agency's ability to process applications

in as efficient and timely a manner as possible. Application processing

tasks completed by the applicant or a third party would reduce the

amount of time the Forest Service spends on each case, thereby reducing

the processing fee assessed to the applicant.

The proposed rule would require an applicant or holder to pay a

processing fee and, where applicable, a monitoring fee. The proposed

rule would establish categories to be assigned on a case-by-case basis

to the processing of each special use application and to the monitoring

of compliance with each authorization. These categories would be based

on the estimated number of hours that agency personnel would spend in

conducting activities directly related to processing an application and

monitoring compliance with an authorization.

Except as specifically exempted, the processing fee provisions of

this proposed rule would apply to (1) All special use proposals

accepted as applications on or after the effective date of this rule;

(2) All special use proposals accepted as applications before the

effective date of this rule, but for which the agency has not yet

issued an authorization; (3) Existing

[[Page 66344]]

authorizations when the holder requests and receives authorization to

construct new facilities or reconstruct existing facilities (either

through an amendment to an existing authorization or through agency

approval, pursuant to a master development plan or operating plan); (4)

New authorizations to be processed and issued due to termination of

existing authorizations; and (5) New authorizations needed due to a

change in ownership or control of facilities under an existing

authorization.

Except as specifically exempted, the monitoring fee provisions of

this proposed rule would apply to the agency's time needed for

monitoring compliance of all authorizations issued on or after the

effective date of the final rule. Monitoring is defined in the proposed

rule at 36 CFR 251.51 as the actions needed to ensure compliance with

special use authorizations during construction or reconstruction of

facilities, as well as inspections of facilities and authorized

activities to ensure compliance with a special use authorization. As

defined in the proposed rule, monitoring would not include routine

administrative actions, such as billings or maintenance of case files,

and fees would not be assessed in any categories for such actions. For

categories B-1 through B-III only, monitoring fees would not be

assessed for the time associated with cumulative multi-year annual or

periodic on-site inspections.

The cost recovery provisions of this rule would not apply to

applications or authorizations issued for noncommercial group uses (36

CFR 251.54). The cost recovery provisions of this rule also would not

apply to activities otherwise prohibited by a closure order, except for

access to non-Federal land within the National Forest System granted

pursuant to section 1323(a) of the Alaska National Interest Lands

Conservation Act (ANILCA) (16 U.S.C. 3210(a)). These exemptions are

necessary to address legal concerns associated with the exercise of

First Amendment rights.

Fees would be assessed for several categories of activities.

Category A for ``minimal impact'' processing or ``no monitoring'' and

the processing and monitoring categories B-I through B-III would apply

to those cases requiring no more than 50 hours of agency time to

process or monitor. A one-time flat fee would be assessed for the

agency's processing and monitoring fees in each of these categories.

Category B-IV would apply to more complex applications and

authorizations requiring more than 50 hours of agency time to process

or monitor. Category C applies when master agreements are established

for processing.

Fees for processing applications in categories A and B-I through B-

IV would be based on the full actual costs of applications for

authorizations issued under the Mineral Leasing Act and on the full

reasonable costs of applications for authorizations issued under other

authorities; these processing fees would be determined on a case-by-

case basis.

A one-time monitoring fee would be assessed for categories B-I

through B-II, based on the time needed for inspections during the

construction or reconstruction period, plus the time needed for

inspections of authorized facilities and operations during one calendar

year. Fees for monitoring category B-IV would be based on the full

actual costs for authorizations issued under the Mineral Leasing Act

and on the full reasonable costs for authorizations issued under other

authorities; these monitoring fees would be determined on a case-by-

case basis.

The fees collected to recover costs for processing applications and

monitoring compliance with authorizations under the proposed rule would

be in addition to land use rental fees assessed and collected based on

the fair market value of the rights and privileges granted by each

authorization. These fee schedules are set out in the Forest Service

directive system in chapter 30 of Forest Service Handbook (FSH)

2709.11, Special Uses Handbook.

Upon acceptance of each special use application, the authorized

officer would determine the category for the processing fee or, in the

case of a category B-IV proposal, would estimate a case-specific

processing fee for that application. This fee would be due before the

Forest Service processes an accepted application. If the proposed use

is approved by the authorized officer, a monitoring fee for the

authorization would be determined using the established monitoring fee

rate by category (or estimated on a case-specific basis for category B-

IV authorizations). The monitoring fee would be due before or at the

same time the authorization is issued.

The agency's experience with its management of more than 74,000

current special use authorizations indicates that the cost to process a

special use application for a proposed use or occupancy frequently has

no relationship to the cost to monitor the construction and/or

implementation of that use or occupancy following issuance of the

authorization. Applications that can be time consuming to process may

require little to no time (or cost) for the agency to monitor, or vice

versa. Therefore, the agency proposes that the processing fee category

and amount for each case would be determined independently of the

monitoring fee category and amount; that is, the processing fee charged

for any given application would not dictate the corresponding

monitoring fee category or amount.

The recovery of costs from applicants and holders would give the

agency the resources to provide more efficient and timely responses to

applications for new uses and to applications for changes or additions

to existing authorized uses and occupancies. Similarly, cost recovery

also would increase the Forest Service's ability to monitor on-site

activities to adequately protect National Forest System lands and

resources, in accordance with the terms and conditions of special use

authorizations.

This proposed Forest Service cost recovery rule is consistent with

the IOAA and a variety of subsequent statutes that authorize the use

and occupancy of National Forest System lands. The IOAA provides that

Federal agencies should recover the costs they incur in providing a

specific benefit or service to identifiable recipients beyond those

provided to the general public. The Forest Service's processing of a

special use application provides a special benefit and service to

applicants for new authorizations and to those proposing modifications

to existing authorizations. The service and benefit provided consist of

the agency's review and consideration of requests to use and occupy

National Forest System lands. Likewise, monitoring, as defined at 36

CFR 251.51 of the proposed rule, provides a special benefit to holders

of special use authorizations that is not available to the general

public in the form of actions necessary to ensure that the construction

or reconstruction of facilities and the authorized activities comply

with the terms and conditions of the authorization. This proposed rule

would provide the process by which recipients may pay for such

Governmental benefits and services.

Upon final adoption, this rule as proposed would not provide the

agency with the authority to retain and spend any of the funds

collected. The agency's retention and expenditure of the fees that

would be assessed and collected pursuant to this proposed rule would

need to be authorized by Congress. The Forest Service proposes to seek

such authority in conjunction with final adoption of this proposed

rule. Doing so would maximize agency responsiveness to applicants and

holders by making the funds deposited by them available for the agency

to use in processing their

[[Page 66345]]

applications and monitoring their authorizations.

Authority

Laws or administrative directives which authorize cost recovery by

the Forest Service include:

1. Independent Offices Appropriations Act of 1952 (IOAA), as

amended (31 U.S.C. 9701). This act provides that each Federal agency

may charge for goods and services the agency provides to identifiable

recipients. Such charges must be fair and must be based on the costs to

the Federal Government and the value of the specific goods or services

provided to the recipient.

2. Office of Management and Budget (OMB; formerly Bureau of the

Budget) Circular No. A-25, as revised July 15, 1993. This circular

provides Federal agencies with specific direction for implementing the

cost recovery provisions in Title V of the IOAA. Section 4a specifies

that the circular covers all Federal activities that convey special

benefits to recipients beyond those accruing to the general public.

3. Mineral Leasing Act of 1920, as amended (30 U.S.C. 185(l)). The

1973 amendment to section 28 of this act authorizes oil and gas

pipeline uses; requires that an applicant for a right-of-way or permit

reimburse the Federal Government for administrative and other costs

incurred in processing the application; and requires that a holder of a

right-of-way or permit reimburse those administrative and other costs

incurred by the Federal Government in monitoring the construction,

operation, maintenance, and termination of any pipeline and related

facilities on the right-of-way.

The legislative history of the 1973 amendment to the Mineral

Leasing Act states that the reimbursement is in addition to rent

charged for the land use. Under the Mineral Leasing Act, Federal

agencies are entitled to recover actual costs; for example, the costs

of preparing environmental impact statements, including environmental

analyses and biological evaluations for Endangered Species Act

compliance.

4. Federal Land Policy and Management Act of 1976 (FLPMA; 43 U.S.C.

1764(g)). Section 504 of FLPMA provides for reimbursement of costs in

addition to the collection of a land use fee. The act authorizes

agencies to promulgate regulations or, prior to promulgation of such

regulations, to require as a condition of a right-of-way that an

applicant or a holder reimburse the Federal Government for all

``reasonable'' administrative and other costs incurred in processing an

application for a right-of-way in monitoring authorizations. Factors

that must be considered in establishing such reasonable costs under

FLPMA include actual costs, the monetary value of the rights and

privileges sought, that portion of the cost incurred for the benefit of

the general public interest, the public service provided, the

efficiency of the government processing involved, and other relevant

factors. The act also provides a concise statement of Congressional

intent concerning cost recovery generally.

Public Law 98-300 (1984) amended section 504 of FLPMA (43 U.S.C.

1764(g)) to exempt certain Rural Electrification Act-financed

facilities from Federal land use fees, but notably retains the

authority of agencies to require reimbursement of reasonable

administrative and other costs related to processing applications and

monitoring authorizations for such facilities.

5. National Historic Preservation Act of 1966 (NHPA; (16 U.S.C.

470(h-2)). Section 110(g) of this act provides that Federal agencies

may require prospective licensees and permittees to pay for the Federal

Government's costs of preservation activities as a condition of

issuance of a license or permit.

Comparison of Forest Service and BLM Proposed Cost Recovery Rules

and Fees

The cost recovery provisions and fees in this proposed Forest

Service rule are consistent with those proposed by BLM, but there are

differences:

1. The Forest Service addresses only cost recovery in its proposed

rule at the previously reserved 36 CFR 251.58, whereas the proposed BLM

rule (64 FR 321055, June 15, 1999) not only addresses revisions to its

existing cost recovery regulations, but also proposes extensive

revisions unrelated to processing and monitoring fees and includes

reorganization and recoding of BLM's rules on rights-of-way at 43 CFR

parts 2800 and 2880.

2. The Forest Service is proposing a processing fee category A for

``minimal impact'' and a monitoring fee category A for ``no

monitoring'' to include low impact activities and uses in areas already

approved or designated for that use in forest plans. Many of these

activities and uses are recreational (such as fishing tournaments and

bicycling races). The BLM rule does not include these categories; the

BLM rule addresses only rights-of-way and does not apply to recreation

activities. The Forest Service proposes a fee of $75 for processing an

application in the minimal impact processing fee category A and no

monitoring fee.

3. The Forest Service and BLM both propose to assign applications

and authorizations to fee categories for processing and monitoring

based on the time and other costs the agencies incur. Whereas the

Forest Service would assign the monitoring fee category to an

authorization separately from the processing fee category for the

application, BLM would automatically assign the fee category for

monitoring based on the processing fee category.

4. The Forest Service would issue the cost recovery fee schedules

in the agency's directive system in Forest Service Handbook (FSH)

2709.11, Special Uses Handbook, chapter 30 (which can be accessed

electronically via the Internet at the agency's directives home page:

http://www.fs.fed.us/im/directives/). BLM is setting out its fee

schedule in the preamble to its proposed and final rules and proposes

to make the fee schedule available at BLM offices and on its home page

at http://www.blm.gov.

The BLM sets out separate proposed fee schedules for applications

and authorizations under the Mineral Leasing Act and those under the

Federal Land Policy and Management Act because of the differences in

the legal standard for calculating cost recovery fees under these two

authorities. The Forest Service has adopted the same approach as BLM in

setting out its proposed cost recovery fee schedules. For further

information on these cost differences, see the description in the

preceding Authority section.

The Forest Service has added letters in naming its proposed fee

categories to accommodate the addition of category A for the minimal

impact processing fee (up to and including 8 hours) and no monitoring

fee, and to incorporate the existing BLM processing and monitoring fee

categories I through IV as Forest Service categories B-I through B-IV.

Category B-I would require more than 8 and up to and including 24 hours

of agency time for processing or up to and including 24 hours of agency

time for monitoring; category B-II would require more than 24 hours and

up to and including 36 hours; category B-III would require more than 36

hours and up to and including 50 hours; and category B-IV would require

more than 50 hours. The Forest Service proposed category C involves the

use of master agreements which would apply only to fees for processing

applications, not to monitoring the authorization. The Forest Service

proposed categories A and C would not apply to applications and

authorizations under the Mineral Leasing Act. The following tables

summarize the fee schedules and categories proposed by the Forest

Service and BLM:

[[Page 66346]]

Proposed Fee Schedules for Applications and Authorizations

[Except those authorized under the Mineral Leasing Act]

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

Category Processing Processing Fee Monitoring Monitoring Fee

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

FS BLM Hours FS BLM Hours FS BLM

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

A........... .................. 8...... 75 (minimal .................. 0................. 0 (no monitoring). ..................

impact).

B-I......... I................. >8 & 24 $230.............. $230.............. 24..... $80............... $80.

B-II........ II................ >24 & 24 & 36. eq>36.

B-III....... III............... >36 & 36 & 50. eq>50.

B-IV........ IV................ >50............... Full reasonable Full reasonable >50............... Full reasonable Full reasonable

cost as required costs as required. costs as required costs as

determined on a costs as required required.

case-by-case determined on a

basis. case-by-case

basis.

C*.......... Master Agreement.. Full reasonable As negotiated..... .................. As negotiated. ...

costs as required

determined on a

case-by-case

basis.

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

*Master agreement for processing fees only.

Proposed Fee Schedule for Mineral Leasing Act Applications and Authorizations

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

Category * Processing Fee Monitoring Fee

--------------------------------- Processing Hours ---------------------------------------- Monitoring Hours ---------------------------------------

FS BLM FS BLM FS BLM

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

B-I......... I................. >8 & 24 $200.............. $200.............. 24..... $70............... $70

B-II........ II................ >24 & 24 & 36. eq>36.

B-III....... III............... >36 & 36 & 50. eq>50.

B-IV........ IV................ >50............... Full actual costs Full actual costs. >50............... Full actual costs Full actual costs.

determined on a determined a case-

case-by-case by-on costs.

basis.

Master Agreement.. .................. .................. As negotiated..... .................. As negotiated. ...

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

* Note that the Forest Service does not have a category A (minimal impact/no monitoring) or a category C (master agreement) for Mineral Leasing Act

applications and authorizations.

5. Analysis of Proposed Rule

A section-by-section explanation of the proposed cost recovery rule

follows.

Proposed Sec. 251.51 Definitions. This section would be revised to

add a definition of monitoring that ensures consistency in the

identification of activities subject to a monitoring fee and in the

determination of monitoring fee categories and amounts.

Proposed Sec. 251.58 Cost Recovery. This section is currently

reserved under the heading ``Cost Reimbursement.'' Regulations would be

promulgated to implement requirements in the various applicable laws

and OMB Circular No. A-25 directing Federal agencies to recover costs

for services provided to identifiable recipients beyond those accruing

to the general public. This section would deal specifically with the

recovery of costs involved in processing applications for special uses

and in monitoring compliance with special use authorizations.

The proposed rule generally would not apply to agency costs

associated with administration of outstanding rights in Federal lands

that may be exercised without a special use authorization. An example

would be use of public highways that predate the establishment of a

National Forest. The proposed rule may apply to an outstanding right

when the holder of that right is otherwise required by law or

regulation to secure an authorization or approval from the Forest

Service.

Paragraph (a) of the proposed rule would direct the agency to

recover its processing costs for special use applications and

monitoring costs for authorized special uses by assessing fees separate

from any fees charged for use and occupancy of National Forest System

lands.

Paragraph (b) would apply the cost recovery requirements to the

processing of applications and monitoring of special use authorizations

pursuant to 36 CFR part 251, subpart B.

Paragraphs (b)(1) through (b)(3) would specify situations that

would prompt assessment of processing fees pursuant to this rule.

Examples include, but are not limited to, cases where a new or amended

authorization is needed to approve substantial changes to an existing

use.

Paragraph (b)(4) specifies that monitoring fees would be applicable

only to special use authorizations issued on or after the date of the

adoption of this rule.

Paragraphs (c) through (c)(6)(iii) would address proposed

processing fees to recover agency costs. Some of the agency's

processing costs, as indicated in paragraph (c)(1), would include the

agency's formal acknowledgment of receipt and initial review of an

application, case file set-up, computer data entry coding,

environmental reviews and analyses, meetings with the

[[Page 66347]]

applicant, and preparation of a special use authorization. These costs

would be specific to a project and would not include the cost of agency

services or benefits that are for the benefit of the general public.

Paragraphs (c)(1)(i) to (c)(1)(ii)(B) would set out the requirements

for determining processing fees based on actual costs for applications

under the Mineral Leasing Act or reasonable costs for applications

under other authorities.

Paragraphs (c)(2) through (c)(6)(iii) would provide for a schedule

of six processing fee categories, based on the complexity of the

proposed use and the agency time needed for processing applications.

A one-time, nonrefundable fee would be assessed for processing

applications in categories A through B-III. For applications other than

those submitted for authorizations issued under the Mineral Leasing

Act, a minimal impact category A, requiring up to 8 hours to process

(paragraph (c)(2)(i)), would be established at a rate of $75. The

Forest Service has determined that it costs at least $75 to process any

special use application. The agency does not anticipate a need for a

minimal impact category for Mineral Leasing Act applications.

Categories B-I through B-IV would be defined using criteria

comparable to those proposed by BLM (64 FR 32105, June 15, 1999). The

proposed schedule fee rates for categories B-I through B-III

(paragraphs (c)(2)(ii)-(iv)) would be identical to those proposed by

BLM and are based on cost data that BLM has collected to support those

rates in each category. The Forest Service proposes to adopt those

rates and categories because (1) its costs of processing special use

applications on National Forest System lands are comparable to BLM's

costs of processing applications for rights-of-way on BLM-administered

public lands, and (2) the public is better served by maintaining

consistency in special uses and rights-of-way administration between

the Forest Service and BLM.

Under category B-IV (paragraph (c)(2)(v)), a processing fee

specific to each project is proposed to recover the full reasonable

costs (for non-Mineral Leasing Act applications) or the full actual

costs (for Mineral Leasing Act applications) that are associated with

conducting agency studies, lengthy environmental analyses, and other

actions that cumulatively require more than 50 hours of agency time to

complete.

For applications under authorities other than the Mineral Leasing

Act, the Forest Service and the applicant could enter into master

agreements (category C) to recover processing costs associated with a

particular application, a group of applications, or similar

applications filed by the same applicant within a specified geographic

area (paragraphs (c)(2)(vi)(A)-(E)). Each application covered by a

master agreement would be assigned its own processing fee category and

rate. Master agreements may be considered an efficient alternative to

case-specific estimates of processing time, particularly when an

applicant or holder routinely submits proposals or has several

authorizations within a defined area or administrative unit. The agency

does not anticipate a need for master agreements for processing Mineral

Leasing Act applications because they seldom, if ever, are submitted as

a group or relate to other applications.

Processing fees in category B-IV or processing fees submitted

pursuant to a master agreement could be assessed and collected in

periodic installments. The authorized officer would estimate the

processing fees for category B-IV applications on a case-specific basis

and would reconcile the fees based on the full reasonable costs for

non-Mineral Leasing Act applications or on the full actual costs for

Mineral Leasing Act applications. Upon the agency's completion of all

processing tasks for a category B-IV application, any remaining balance

of the processing fees would be either refunded to the applicant or

credited towards monitoring fee assessments. When the estimated

processing fee in category B-IV is lower than the agency's costs for

processing an application, the applicant would be obligated to pay the

difference between the estimated costs and the agency's full actual or

reasonable costs. For all categories, an applicant's payment of a

processing fee would neither ensure nor imply agency approval of the

proposed use or occupancy. The applicant would be liable for the

agency's processing costs regardless of whether the application is

subsequently denied by the agency or withdrawn by the applicant.

Establishment of a processing fee is expected to encourage

prospective applicants to discuss their proposed use and occupancy with

the Forest Service prior to submitting an application. The agency

anticipates that this fee may also provide an incentive for proponents

to better design their applications to meet the agency's resource

management concerns and objectives. The agency would not duplicate

processing activities to be conducted by the applicant. Applicants

would be strongly encouraged to conduct as many of the necessary

processing steps as possible (such as collecting data; performing

studies; completing resource surveys, evaluations, and assessments; and

conducting and documenting environmental analyses). Having the

applicant conduct these steps would minimize the time the Forest

Service needs to process an application and would reduce the

application's impact on limited Forest Service resources. The applicant

also would minimize the application processing fee charged by the

Forest Service and, in many cases, would expedite the Forest Service's

processing of the application.

Paragraphs (c)(3) through (c)(3)(ii) would address how processing

costs would be assessed when two or more applicants apply and compete

for one use. Included are separate provisions for assessing processing

fees when the competitive interest in a particular use or occupancy is

(1) unsolicited by the Forest Service or (2) solicited by the Forest

Service.

Paragraphs (c)(4) through (c)(4)(ii) would describe how and when

the authorized officer would determine an appropriate processing fee

for each accepted application, notify and bill applicants, and revise

fees.

Paragraphs (c)(5) through (c)(5)(ii) would provide direction for

the payment of processing fees and would provide that the agency would

not initiate processing an application until receipt of full payment of

the prescribed processing fee.

Paragraphs (c)(6) through (c)(6)(iii) would specify that processing

fees in categories A and B-I through B-III are nonrefundable and would

describe under what conditions the processing fee for category B-IV

would be refunded to an applicant.

Paragraphs (d) through (d)(4)(ii) would provide for recovering

those costs the Forest Service incurs in monitoring compliance with

special use authorizations during construction or reconstruction of

facilities, plus those costs incurred during on-site inspections of

authorized facilities and operations to ensure compliance with a

special use authorization.

Paragraphs (d)(1) through (d)(1)(ii) would describe the basis for

monitoring fees. A one-time, nonrefundable fee would be assessed for

monitoring compliance with authorizations in categories B-I through B-

III. The authorized officer would estimate the monitoring fee under

category B-IV on a case-by-case basis and would reconcile the fee based

on full reasonable costs for monitoring non-Mineral Leasing Act

authorizations or full actual costs for monitoring Mineral Leasing Act

authorizations.

[[Page 66348]]

Paragraphs (d)(2) through (d)(2)(v) would provide for a schedule of

five monitoring fee categories, based on the complexity of the activity

to be monitored. Except for authorizations issued under the Mineral

Leasing Act, a category A would be established for authorizations that

require no monitoring and for which no monitoring fee would be charged.

The agency does not anticipate a need for a no monitoring category for

Mineral Leasing Act authorizations. Categories B-I through B-IV would

be defined using criteria comparable to those proposed by BLM (64 FR

32105, June 15, 1999) and are based on cost data that BLM has collected

to support its monitoring fee rates.

Paragraph (d)(3)(i) would allow the holder to pay the monitoring

fee in installments based on estimates of the total fee and with the

approval of the authorized officer. When the estimated monitoring fee

in category B-IV is lower than the agency's costs incurred in

monitoring an authorization, the holder of the special use

authorization would pay the difference.

Paragraphs (d)(4) through (d)(4)(ii) would specify that monitoring

fees in categories B-I through B-III are nonrefundable and would

describe under what conditions the monitoring fee for category B-IV

would be refunded to an authorization holder.

Paragraphs (e) through (e)(3) would provide applicants and holders

with a process for disputing or requesting a reduction in the

established processing or monitoring fees.

Paragraphs (f) through (f)(2) would identify the circumstances

under which the authorized officer may waive all or part of a

processing or monitoring fee. Waiving all or any part of a fee pursuant

to these criteria would be discretionary on the part of the authorized

officer and would not be an entitlement of the applicant or holder.

Paragraph (f)(1)(i) would provide for waiving fees for a local,

State, or Federal governmental entity that waives similar fees for the

Forest Service.

Paragraph (f)(1)(ii) would allow the authorized officer to waive

part of the processing fee when a major portion of the costs results

from issues not related to the actual project being proposed. For

example, an application is submitted for an outfitter-guide use in a

geographic area where numerous similar outfitter-guide uses have

already been authorized. The new application prompts the need for the

Forest Service to conduct an analysis of the capability of the land and

its resources to accommodate particular types of uses related to the

proposed use, and to examine allocations of commercial versus

noncommercial uses within the subject area. Although the analysis is

triggered by the new application, the purpose of the analysis is only

minimally attributable to the applicant's proposed use and occupancy.

Thus, it is inappropriate to assess that applicant the total cost of

such an analysis.

Paragraph (f)(1)(iii) would provide for a waiver or partial waiver

of processing or monitoring fees when a proposed project is intended to

prevent or mitigate damage to real property or to mitigate hazards to

public health and safety resulting from an act of God, an act of war,

or negligence of the United States. For example, a storm destroys a

culvert crossing of a forest development road that provides access to a

parcel of private land. The landowner has an easement for the operation

and maintenance of the landowner's proportionate use of the road. The

landowner offers to replace the culvert and mitigate the associated

damages that have resulted from the storm, and the work requires the

landowner to obtain a special use authorization for occupancy and use

of National Forest System lands outside the right-of-way limits of the

roadway. The fee for processing an application for this work may be

waived by the authorized officer because of the public and/or agency

benefits to be realized by the proposed use (that is, mitigating

damages to National Forest System lands and resources by repairing the

culvert crossing and adjacent lands to standards established by the

Forest Service).

Paragraph (f)(1)(iv) would provide for a waiver or partial waiver

of processing or monitoring fees when a proposed activity is necessary

to move a facility or improvement to a new location to comply with

public health and safety or environmental requirements that were not in

effect at the time the authorization was issued. For example, the

discovery of habitat critical to threatened or endangered species

requires an authorized officer to relocate a recreation residence to

another lot. The authorized officer may waive the fee to process the

holder's application for relocation of the residence to another lot.

Paragraph (f)(1)(v) would provide for a waiver or partial waiver

where an improvement or facility must be relocated because the land is

needed by a Federal agency or federally funded project for an

alternative public purpose. For example, the Forest Service decides to

construct a recreational facility in a location occupied by an

authorized use, such as a private access road. The new recreational

facility requires relocation of a segment of the access road to

preclude user conflicts between the landowner and the recreating

public. The road relocation requires a new or amended special use

authorization. Processing fees associated with the landowner's

application for the authorization may be waived by the authorized

officer.

Paragraphs (f)(1)(vi) through (f)(1)(vi)(B) would provide for

waiving fees for processing an application or monitoring an

authorization on behalf of a nonprofit organization, corporation, or

association that is not controlled by or a subsidiary of a profit-

making enterprise when studies undertaken in processing the application

have a public benefit or the proposed facility or project would provide

a free service to the public or to a USDA program.

Paragraph (f)(2) would require that requests for waivers be in

writing and include an analysis of the applicability of the waiver

criteria.

Paragraph (g) would exempt from processing and monitoring fees

those applications and authorizations for noncommercial group uses and

for activities otherwise prohibited by a closure order, except for

access to non-Federal lands within the boundaries of the National

Forest System granted pursuant to section 1323(a) of the Alaska

National Interest Lands Conservation Act (16 U.S.C. 3210(a)).

Paragraph (h) would provide that decisions to assess a processing

or monitoring fee or to determine the fee category or amount are not

appealable. Paragraph (h) also would provide that a decision in

response to a request for a reduction in a processing or monitoring fee

is not subject to administrative appeal.

Paragraph (i)(1) would provide that the proposed schedules for

processing and monitoring fees applicable to most special use

applications and authorizations would be set out in the Forest Service

directive system. This paragraph would specify further that the agency

will keep fee schedules current with annual adjustments of fee rates in

each cost category using the Implicit Price Deflator-Gross Domestic

Product (IPD-GDP) index and will round up changes in the rates to the

nearest dollar. Paragraphs (i)(2)(i) and (i)(2)(ii) would require the

agency to review the fee rates on the 5-year anniversary of the

adoption of the final rule.

6. Regulatory Requirements

Environmental Impact

This proposed rule would establish administrative fee categories

and

[[Page 66349]]

procedures for processing special use applications and monitoring

special use authorizations on National Forest System lands. Section

31.1b of Forest Service Handbook (FSH) 1909.15 (57 FR 43180, September

18, 1992) excludes from documentation in an environmental assessment or

impact statement ``rules, regulations, or policies to establish

Service-wide administrative procedures, program processes, or

instructions.'' The agency's preliminary assessment is that this

proposed rule falls within this category of actions and that no

extraordinary circumstances exist which would require preparation of an

environmental assessment or environmental impact statement. A final

determination will be made upon adoption of the final rule.

Regulatory Impact

This proposed rule has been reviewed under USDA procedures and

Executive Order 12866 on Regulatory Planning and Review. It has been

determined that this is not a significant rule. This proposed rule

would not have an annual effect of $100 million or more on the economy,

nor would it adversely affect productivity, competition, jobs, the

environment, public health or safety, or State or local governments.

This proposed rule would not interfere with any action taken or planned

by another agency, nor would it raise new legal or policy issues.

Finally, this proposed action would not alter the budgetary impact of

entitlements, grants, user fees, or loan programs or the rights and

obligations of recipients of such programs. Accordingly, this proposed

rule is not subject to Office of Management and Budget (OMB) review

under Executive Order 12866.

Moreover, this proposed rule has been considered in light of the

Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been

determined that this proposed action would not have a significant

economic impact on a substantial number of small entities as defined by

the act because it would not impose record-keeping requirements on

them; it would not affect their competitive position in relation to

large entities; and it would not affect their cash flow, liquidity, or

ability to remain in the market. In addition, the Forest Service is

proposing a flat fee of $75 for processing an application in the

minimal impact processing fee category A and no monitoring fee. Most

small entity application requests would fall within this flat fee

category.

Federalism

The agency has considered this proposed rule under the requirements

of Executive Order 13132, Federalism, and has made a preliminary

assessment that the rule conforms with the federalism principles set

out in this Executive Order; would not impose any compliance costs on

the States; and would not have substantial direct effects on the

States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the

various levels of government. Moreover, the cost recovery processing

and monitoring fees set out in this proposed rule may be waived for

local and State government entities that waive similar fees they might

otherwise assess the Forest Service. Based on comments received on this

proposed rule, the agency will consider if any additional consultation

will be needed with State and local governments prior to adopting a

final rule.

No Takings Implications

This proposed rule has been analyzed in accordance with the

principles and criteria contained in Executive Order 12630, and it has

been determined that the proposed rule does not pose the risk of a

taking of constitutionally protected private property.

Civil Justice Reform Act

This proposed rule has been reviewed under Executive Order 12988,

Civil Justice Reform. If this proposed rule were adopted, (1) all State

and local laws and regulations that are in conflict with this proposed

rule or that would impede its full implementation would be preempted;

(2) no retroactive effect would be given to this proposed rule; and (3)

it would not require administrative proceedings before parties may file

suit in court challenging its provisions.

Unfunded Mandates

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2

U.S.C. 1531-1538), which the President signed into law on March 22,

1995, the agency has assessed the effects of this proposed rule on

State, local, and tribal governments and the private sector. This

proposed rule would not compel the expenditure of $100 million or more

by any State, local, or tribal government or anyone in the private

sector. Therefore, a statement under section 202 of the act is not

required.

Controlling Paperwork Burdens on the Public

This proposed rule does not contain any record-keeping or reporting

requirements or other information collection requirements as defined in

5 CFR part 1320 that are not already required by law or not already

approved for use. The information collection being requested as a

result of this action has been approved by the Office of Management and

Budget (OMB) (Number 0596-0082). Accordingly, the review provisions of

the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its

implementing regulations at 5 CFR part 1320 do not apply.

List of Subjects in 36 CFR Part 251

Electric power, Mineral resources, National forests, Rights-of-way,

and Water resources.

Therefore, for the reasons set forth in the preamble, the Forest

Service proposes to amend 36 CFR part 251 as follows:

PART 251--LAND USES

Subpart B--Special Uses

1. The authority citation for part 251, subpart B, continues to

read as follows:

Authority: 16 U.S.C. 472, 497b, 551, 1134, 3210; 30 U.S.C. 185;

43 U.S.C. 1740, 1761-1771.

2. Amend Sec. 251.51 by adding a definition for ``monitoring'' in

alphabetical sequence to read as follows:

Sec. 251.51 Definitions.

* * * * *

Monitoring--Actions needed to ensure compliance with special use

authorizations during construction or reconstruction. Monitoring also

includes on-site inspections of facilities and authorized activities to

ensure compliance with a special use authorization. Monitoring does not

include routine administrative actions, such as billings or maintenance

of case files.

* * * * *

3. Revise the heading for Sec. 251.58 and add new text to the

formerly reserved Sec. 251.58 to read as follows:

Sec. 251.58 Cost recovery.

(a) Assessment of fees to recover agency processing and monitoring

costs. The Forest Service shall assess fees to recover the agency's

processing costs for special use applications and monitoring costs for

authorized special uses. These fees are separate from any fees charged

for the use and occupancy of National Forest System lands. Fee rates

for recovery of processing costs are determined according to categories

established for the hours of work required to process applications as

set out in paragraph (c)(2) of this section.

[[Page 66350]]

Separate categories for recovery of monitoring costs are set out in

paragraph (d)(2) of this section. As provided in paragraph (i) of this

section, processing and monitoring fee rates are revised annually, set

out in the Forest Service directive system, and reviewed every 5 years.

(b) Special use applications and authorizations subject to cost

recovery requirements. Except as exempted in paragraph (g) of this

section, the cost recovery requirements of this section apply in the

following situations to the processing of applications and monitoring

of special use authorizations issued pursuant to this subpart B.

(1) Applications for use and occupancy that require a new special

use authorization. Fees for processing an application for a new special

use authorization shall be assessed for any application that has been

formally accepted by the agency on or after [the effective date of the

final rule] and any application that was accepted by the agency before

[the effective date of the final rule], but for which an authorization

has not yet been issued, regardless of whether the application was

unsolicited or solicited by the Forest Service.

(2) Changes to existing authorizations. Processing fees apply to

proposals by holders that would require an application to amend an

authorization, operating plan, or master development plan.

(3) Applications for new authorizations prompted by termination of

an existing authorization or by a change in ownership or control of the

authorized improvements. Applicants or holders proposing a new

authorization prompted by termination of an existing authorization or

by a change in ownership or control of the holder of the authorized

improvements shall submit the information needed for the authorized

officer to determine the appropriate processing and monitoring fee.

(4) Monitoring of authorizations issued on or after [the effective

date of the final rule].

(c) Processing fee requirements. A processing fee is required for

each application for a special use authorization as identified in

paragraphs (b)(1) through (b)(3) of this section. Processing fees do

not include costs incurred by the applicant in providing information,

data, and documentation necessary for the authorized officer to make a

decision on the proposed use or occupancy, pursuant to the provisions

at Sec. 251.54.

(1) Basis of processing fees. The processing fee categories A and

B-I through B-IV set out in paragraphs (c)(2)(i) through (c)(2)(v) of

this section are based upon the amount of time that the Forest Service

spends reviewing the application, conducting environmental analyses of

the effects of the proposed use, reviewing any applicant-generated

environmental documents and studies, conducting site visits, evaluating

an applicant's technical and financial qualifications, making a

decision on whether to issue the authorization, and preparing

documentation of analyses, decisions, and authorizations for each

application. Different processing fee schedules are set out in the

agency's directive system (paragraph (i) of this section) for

applications submitted under the Mineral Leasing Act (based on recovery

of actual costs) and applications submitted under other authorities

(based on recovery of reasonable costs). The amount of time required

for processing an application and thus the processing fee depend on the

complexity of the project; the amount of information that the

authorized officer needs to make a decision in response to the proposed

use or occupancy; and the degree to which the applicant is willing to

provide this information to the agency. Processing work conducted by

the applicant or a third party minimizes the time the Forest Service

needs to process the application and thus reduces the processing fee.

The total processing time is the total time estimated for all Forest

Service personnel involved in processing an application and is

estimated on a case-by-case basis to determine the fee category. A one-

time, nonrefundable fee shall be assessed for processing applications

in categories A and B-I through B-III. The processing fee under

category B-IV set out in paragraph (c)(2)(vi) shall be established on a

case-specific basis, based on the authorized officer's estimate of the

agency's processing costs. Differences between the estimated processing

costs and the agency's final processing costs are reconciled when the

processing of the applications is complete.

(i) Use of actual costs in determining fees for processing

applications under the Mineral Leasing Act. For applications submitted

under authority of the Mineral Leasing Act (30 U.S.C. 185(l)), the

authorized officer reconciles the difference between the processing fee

estimated for the category B-IV application and the agency's full

actual costs incurred in processing the application.

(ii) Use of reasonable costs in determining fees for processing

applications under other authorities. For applications submitted under

other authorities, the authorized officer reconciles the differences

between the processing fee estimated for the category B-IV application

and the agency's full reasonable costs incurred in processing the

application. The applicant:

(A) May submit a written analysis of actual costs, the monetary

value of the rights and privileges sought, that portion of the cost

incurred for the benefit of the general public interest, the public

service provided, the efficiency of the government processing involved,

and other relevant factors as applied to the full reasonable costs

associated with processing the application, or

(B) May agree in writing to waive consideration of reasonable costs

and pay all actual costs incurred in processing the application.

(2) Processing fee categories.--(i) Category A: Minimal impact. The

Forest Service has available, or the applicant provides, the

information necessary to process the application in compliance with the

National Environmental Policy Act and other applicable statutes. Total

estimated processing time for an application in this fee category does

not exceed 8 hours for agency personnel to review the application, to

decide on whether to issue an authorization for the proposed use or

occupancy, and to prepare and issue the authorization.

(ii) Category B-I: More than 8 and up to and including 24 hours.

The total estimated time in this category is more than 8 and up to and

including 24 hours for Forest Service personnel to process an

application.

(iii) Category B-II: More than 24 and up to and including 36 hours.

The total estimated time in this category is more than 24 and up to and

including 36 hours for Forest Service personnel to process an

application.

(iv) Category B-III: More than 36 and up to and including 50 hours.

The total estimated time in this category is more than 36 and up to and

including 50 hours for Forest Service personnel to process an

application.

(v) Category B-IV: More than 50 hours. In this category more than

50 hours are needed for Forest Service personnel to process an

application. The authorized officer shall determine the issues to be

addressed and shall develop preliminary work and financial plans for

estimating recoverable costs.

(vi) Category C: Master agreements. The Forest Service and the

applicant may enter into master agreements for the agency to recover

processing costs associated with a particular application, a group of

applications, or similar applications filed by the same applicant

within a specified geographic area. A master agreement shall include:

[[Page 66351]]

(A) An initial cost estimate;

(B) A description of the method for periodic billing, payment, and

auditing;

(C) A description of the geographical area covered by the

agreement;

(D) A work plan and provisions for updating; and

(E) Specific conditions for terminating the agreement.

(3) Competitive interest. The authorized officer shall determine if

a competitive interest exists when a proposal is submitted to use or

occupy National Forest System lands.

(i) In situations where there are two or more unsolicited

competitive proposals, each applicant must pay processing fees as

required under this section. Processing costs that are associated with

more than one application (such as the costs of printing an

environmental impact statement that generally relates to all of the

applications) must be paid in equal shares or on a prorated basis, as

deemed appropriate by the authorized officer, but may not exceed the

full actual costs of processing applications submitted under the

Mineral Leasing Act or the full reasonable costs of processing

applications submitted under other authorities.

(ii) When the Forest Service solicits applications for the use and

occupancy of National Forest System lands through a request for

proposal, a prospectus, or similar solicitation, the agency is

responsible for the costs of environmental analyses and reviews

conducted before the solicitation is issued. The Forest Service shall

collect a fee from each party requesting a copy of the solicitation

package to cover the agency's costs for printing and mailing. The

selected applicant is required to pay a processing fee that covers the

Forest Service's costs to review and evaluate the selected applicant's

proposal, including establishing a case file; recording data; and

conducting financial reviews, additional environmental analysis, and

preauthorization meetings with the applicant.

(4) Billing and revision of processing fees.--(i) Billing. When the

Forest Service accepts a special use application, the authorized

officer shall provide written notice to the applicant that the

application has been formally accepted and shall include a bill for the

estimated amount of the processing fee, based on one of the processing

fee categories A, B-I through B-IV, or C (paragraphs (c)(2)(i) through

(vi)).

(ii) Revision of processing fees. In processing an application, if

the authorized officer discovers previously undisclosed information

that necessitates a change in the processing fee, the authorized

officer shall revise the processing fee based on that information

before continuing with consideration of the application. Written notice

of the authorized officer's processing fee determination shall be

provided to the applicant, along with a bill for that fee amount.

(5) Payment of processing fees.--(i) Payment of the processing fee

shall be due within 30 days of the bill issued pursuant to paragraph

(c)(4) of this section. The processing fee must be paid before the

Forest Service can initiate or, in the case of a revised fee, continue

with processing an application. Payment of the processing fee by the

applicant does not obligate the Forest Service to authorize the

applicant's proposed use or occupancy.

(ii) When the estimated processing fee in category B-IV is lower

than the full actual costs of processing an application submitted under

the Mineral Leasing Act or lower than the full reasonable costs of

processing an application submitted under other authorities, the

applicant shall pay the difference between the estimated and the full

actual or reasonable processing costs.

(6) Refunds of processing fees. (i) Processing fees in categories A

and B-I through B-III are nonrefundable.

(ii) For category B-IV applications, an applicant whose application

is denied or withdrawn in writing is responsible for costs incurred by

the Forest Service in processing the application up to and including

the date the agency denies the application or receives written notice

of the applicant's withdrawal. When an applicant withdraws a category

B-IV application, the applicant also is responsible for any costs

subsequently incurred by the Forest Service in terminating

consideration of the application.

(iii) If the payment of any category B-IV processing fee exceeds

the full actual costs of processing an application submitted under the

Mineral Leasing Act or the full reasonable costs of processing an

application submitted under other authorities, the authorized officer

shall either refund the excess payment to the applicant or, at the

applicant's request, shall credit it towards monitoring fees due.

(d) Monitoring fee requirements. The monitoring fee for an

authorization shall be assessed independently of any fee assessed for

processing the application for that authorization, pursuant to

paragraph (c) of this section. Payment of the monitoring fee is due

upon issuance of the authorization.

(1) Basis for monitoring fees. Monitoring is defined at

Sec. 251.51. For monitoring fee categories B-I through B-III,

authorization holders are assessed monitoring fees based on the

estimated time needed for agency monitoring to ensure compliance with

special use authorizations during the construction or reconstruction of

facilities, plus the estimated time needed to perform on-site

inspections of authorized facilities and/or operations during one

calendar year. The basis for determining the appropriate monitoring fee

category B-I through B-IV does not include the time spent preparing

billings, maintaining case files, or performing other routine

administrative actions; for categories B-1 through B-III, estimates

also do not include the time expended in cumulative multi-year annual

or periodic on-site inspections. Monitoring fee categories are set out

in paragraphs (d)(2)(i) through (d)(2)(v) of this section. A one-time,

nonrefundable fee shall be assessed for monitoring compliance with

authorizations in categories B-I through B-III. The monitoring fee

under category B-IV set out in paragraph (d)(2)(v) shall be established

on a case-specific basis, based on the authorized officer's estimate of

the agency's monitoring costs. Differences between the estimated

monitoring costs and the agency's final costs shall be reconciled when

monitoring of the authorization has been completed.

(i) Use of actual costs in determining fees for monitoring

authorizations issued under the Mineral Leasing Act. For authorizations

issued under the Mineral Leasing Act (30 U.S.C. 185 (l)), the

authorized officer reconciles the difference between the monitoring fee

estimated for the category B-IV and the agency's full actual costs

incurred in monitoring the authorization.

(ii) Use of reasonable costs in determining fees for monitoring

authorizations issued under other authorities. For authorizations

issued under authorities other than the Mineral Leasing Act, the

authorized officer reconciles the difference between the monitoring fee

estimated for the category B-IV authorization and the agency's full

reasonable costs incurred in monitoring the authorization. The

applicant:

(A) May submit a written analysis of actual costs, the monetary

value of the rights or privileges sought, that portion of the cost

incurred for the benefit of the general public interest, the public

service provided, the efficiency of the government processing involved,

and other relevant factors as applied to the full reasonable costs

associated with monitoring the authorization, or

(B) May agree in writing to waive consideration of reasonable costs

and

[[Page 66352]]

pay all actual costs incurred in monitoring the authorization.

(2) Monitoring fee categories. The monitoring fee categories are:

(i) Category A: No monitoring. This category applies to

authorizations for use and occupancy that have low or no impacts on

National Forest System lands and resources and for which the agency has

no identifiable need or intention to conduct a site visit for resource

protection purposes. No monitoring fee shall be assessed in this

category.

(ii) Category B-I: Up to and including 24 hours. Up to and

including 24 hours are estimated for Forest Service personnel to

monitor compliance with a special use authorization.

(iii) Category B-II: More than 24 and up to and including 36 hours.

More than 24 and up to and including 36 hours are estimated for Forest

Service personnel to monitor compliance with a special use

authorization.

(iv) Category B-III: More than 36 and up to and including 50 hours.

More than 36 and up to and including 50 hours are estimated for Forest

Service personnel to monitor compliance with a special use

authorization.

(v) Category B-IV: More than 50 hours. More than 50 hours are

needed for Forest Service personnel to monitor compliance with a

special use authorization.

(3) Billing and payment of monitoring fees. (i) The authorized

officer shall estimate the monitoring costs and shall notify the holder

of the required fee. The monitoring fees in categories B-I through B-

III must be paid in full before or at the same time the authorization

is issued. For authorizations in category B-IV, the estimated

monitoring fees must be paid in full before or at the same time the

authorization is issued, unless the authorized officer and the

applicant or holder agree in writing to periodic payments.

(ii) When the estimated monitoring fee for an authorization in

category B-IV is lower than the full actual costs of monitoring

compliance with an authorization issued under the Mineral Leasing Act

or lower than the full reasonable costs of monitoring compliance with

an authorization issued under other authorities, the holder shall pay

the difference in the next periodic payment or the authorized officer

shall bill the holder for the difference between the estimated and the

full actual or reasonable monitoring. Payment shall be due within 30

days of receipt of the bill.

(4) Refunds of monitoring fees. (i) Monitoring fees in categories

B-I through B-III are nonrefundable.

(ii) If the holder's payment of any category B-IV estimated

monitoring fee exceeds the full actual costs of monitoring an

authorization issued under the Mineral Leasing Act or the full

reasonable costs of monitoring an authorization under other

authorities, the authorized officer either shall adjust the next

periodic payment to reflect the overpayment or shall refund the excess

payment to the holder.

(e) Applicant and holder disputes concerning processing or

monitoring fee assessments; requests for changes in fee categories or

amounts. (1) If an applicant or holder disagrees with the processing or

monitoring fee category assigned by the authorized officer or, in the

case of category B-IV applications or authorizations, with the

estimated dollar amount of the processing or monitoring fee, the

applicant or holder may submit a written request to the authorized

officer for either a change in the fee rate or, in category B-IV cases,

the estimated fee amount.

(2) In the case of a disputed processing fee, such a request

suspends the Forest Service's processing of the application, pending

the following:

(i) Consideration of the request by the authorized officer,

(ii) Determination by the authorized officer of an appropriate

processing fee, and

(iii) The applicant's advance payment of the fee.

(3) In the case of a disputed monitoring fee, a request to change

the fee suspends the authorization for which the disputed fee is

charged.

(f) Waivers of processing and monitoring fees. (1) All or part of a

processing or monitoring fee may be waived, at the sole discretion of

the authorized officer, when one or more of the following criteria are

met:

(i) The applicant is a local, State, or Federal governmental entity

that waives similar fees that the Forest Service might otherwise be

assessed for services provided by the applicant;

(ii) A major portion of the processing costs results from issues

not related to the project being proposed;

(iii) The proposal consists of a project intended to prevent or

mitigate damage to real property, or to mitigate hazards or dangers to

public health and safety resulting from an act of God, an act of war,

or negligence of the United States.

(iv) The proposal involves moving a facility or improvement to a

location outside the authorized area to comply with public health,

public safety, and environmental protection laws and regulations that

were not in effect at the time the authorization was issued.

(v) The application is for a new authorization to relocate

facilities or improvements that must be moved because the land is

needed by a Federal agency or federally funded project for an

alternative public purpose.

(vi) The applicant is a nonprofit organization, corporation, or

association that is not controlled by or a subsidiary of a profit-

making enterprise, and:

(A) The studies undertaken in connection with processing the

application have a public benefit or

(B) The proposed facility or project will provide a free service to

the public or a program of the Secretary of Agriculture.

(2) An applicant's or holder's request for a full or partial waiver

of a processing or monitoring fee must be in writing and must include

an analysis that demonstrates how one or more of the criteria in

paragraph (f)(1) of this section apply.

(g) Exemptions from processing and monitoring fees. No processing

or monitoring fees shall be charged when the application or

authorization is for a noncommercial group use as defined in

Sec. 251.51 or for activities otherwise prohibited by a closure order,

except for access to non-Federal lands within the boundaries of the

National Forest System granted pursuant to section 1323(a) of the

Alaska National Interest Lands Conservation Act (16 U.S.C. 3210(a)).

(h) Appeal of decisions. (1) A decision to assess a processing or

monitoring fee to determine the fee category or amount is not subject

to administrative appeal.

(2) A decision by an authorized officer in response to a request

for a reduction in a processing or monitoring fee likewise is not

subject to administrative appeal.

[[Page 66353]]

(i) Processing and monitoring fee schedules. (1) The Forest Service

shall maintain schedules for processing and monitoring fees in the

directive system (36 CFR 200.4). These schedules shall be updated

annually by adjusting the rates using the annual rate of change, second

quarter to second quarter, in the Implicit Price Deflator-Gross

Domestic Product (IPD-GDP) index. The Forest Service shall round up

changes in the rates to the nearest dollar.

(2) Upon the 5-year anniversary of the effective date of this

section [Effective Date of the Final Rule], the Forest Service shall

review these rates:

(i) To determine whether they are commensurate with the actual or

reasonable costs incurred by the agency in conducting the processing

and monitoring activities covered by this section; and

(ii) To assess consistency with processing and monitoring fee

schedules established by the United States Department of the Interior,

Bureau of Land Management.

Dated: November 15, 1999.

Hilda Diaz-Soltero,

Associate Chief, Forest Service.

[FR Doc. 99-30587 Filed 11-23-99; 8:45 am]

BILLING CODE 3410-11-P