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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A99-30587

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** November 24, 1999
- **Citation:** 64 FR 66342

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-30587. Public record. Not legal advice.