[Federal Register: February 21, 2006 (Volume 71, Number 34)]
[Rules and Regulations]
[Page 8891-8920]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21fe06-11]
[[Page 8891]]
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Part II
Department of Agriculture
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Forest Service
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36 CFR Part 251
Land Uses; Special Uses; Recovery of Costs for Processing Special Use
Applications and Monitoring Compliance With Special Use Authorizations;
Final Rule
[[Page 8892]]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 251
RIN 0596-AB36
Land Uses; Special Uses; Recovery of Costs for Processing Special
Use Applications and Monitoring Compliance With Special Use
Authorizations
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department is adopting final regulations for recovering
costs associated with processing applications for special use
authorizations to use and occupy National Forest System lands and
monitoring compliance with these special use authorizations. This final
rule provides the agency with the regulatory authority to implement
provisions in several statutes that authorize the Forest Service to
collect fees to recover administrative costs associated with managing
special uses on National Forest System lands. The provisions of this
rule apply to applications and authorizations for use of National
Forest System lands, including situations in which the land use fee may
be waived or exempted, such as facilities financed or eligible to be
financed with a loan pursuant to the Rural Electrification Act of 1936,
as set forth in Public Law 98-300, and applications and authorizations
involving Federal, State, and local governmental entities. The
provisions of this rule do not apply to applications and authorizations
for noncommercial group uses; applications and authorizations for
recreation special uses, identified in Forest Service Handbook 2709.11,
Chapter 50, by use codes 111 through 165, requiring 50 hours or less to
process or monitor; and other uses specifically exempted by law or
regulation. The rates established in this rule are the same as those
adopted by BLM in its final right-of-way rule published in the Federal
Register (70 FR 20969, Apr. 22, 2005).
EFFECTIVE DATE: This rule is effective March 23, 2006.
FOR FURTHER INFORMATION CONTACT: Maryann Kurtinaitis, Lands Staff,
(202) 205-1264, or Carolyn Holbrook, Recreation and Heritage Resources
Staff, (202) 205-1399, USDA, Forest Service.
SUPPLEMENTARY INFORMATION:
Table of Contents
1. Background
Special Uses Program
Need for Cost Recovery
Use of Cost Recovery Fees
2. Public Comments on the Proposed Rule
Overview
Response to General Comments
Response to Comments on the Supplementary Information Section in
the Preamble to the Proposed Rule
Response to Comments on Specific Sections of the Proposed Rule
3. Final Processing and Monitoring Fee Schedules
4. Authority
5. Regulatory Certifications
Environmental Impact
Regulatory Impact
Cost-Benefit Analysis
Regulatory Flexibility Analysis
Federalism
No Takings Implications
Civil Justice Reform
Unfunded Mandates
Energy Effects
Consultation With Tribal Governments
Controlling Paperwork Burdens on the Public
6. Revisions to 36 CFR Part 251, Subpart B
7. Summary and Comparison of Provisions in the Proposed and Final
Rules
1. Background
Special Uses Program
Approximately 74,000 special use authorizations are in effect on
National Forest System (NFS) lands, authorizing a variety of activities
that range from individual private uses to large-scale commercial
facilities and public services. Examples of authorized special uses
include public and private road rights-of-way, apiaries, domestic water
supply conveyance systems, telephone and electric service rights-of-
way, oil and gas pipeline rights-of-way, communications facilities,
hydroelectric power-generating facilities, ski areas, resorts, marinas,
municipal sewage treatment plants, and public parks and playgrounds.
The agency estimates that it receives approximately 6,000 applications
for special use authorizations each year. Each application is subject
to some level of environmental analysis. For many cases, the collection
of data, consultations, and scoping associated with the analysis and
decisionmaking process can be costly in terms of both time and
resources.
Need for Cost Recovery
Requirements of the National Environmental Policy Act, the
Wilderness Act of 1964, the Endangered Species Act, the National
Historic Preservation Act of 1966, additional requirements of the
Federal Land Policy and Management Act of 1976, Executive Order 11990
(Floodplains), and Executive Order 11998 (Wetlands) directly affect the
manner in which special use proposals must be evaluated and how
authorizations are conditioned and administered. Compliance with these
statutory authorities and Executive orders often can require extensive
analysis and documentation of the impacts of use and occupancy on a
wide array of environmental, cultural, and historical resources. As a
result, processing applications for authorizations for new uses and
reauthorizing existing uses often can become time-consuming and
expensive for the Forest Service, applicants, and holders of
authorizations. These impacts were a major factor in the development of
amendments to the agency's regulations at 36 CFR part 251, subpart B,
promulgated November 30, 1998 (63 FR 65949), to streamline the manner
in which proposals and applications for special uses are processed and
authorizations are administered.
Despite these streamlining procedures, the agency is finding it
increasingly difficult to provide timely reviews and evaluations of
special use applications due to limited appropriations and staffing.
The result is a growing backlog of applications for new uses and a
growing number of expired authorizations for existing uses. The agency
is increasingly unable to respond in a manner that meets the needs and
expectations of special use applicants and authorization holders.
In the past 10 years, the Government Accountability Office (GAO)
and the U.S. Department of Agriculture's Office of Inspector General
have conducted more than 15 reviews or audits of various aspects of the
Forest Service's special uses program. Two of the more recent audits,
GAO Report RCED-96-84 (April 1996) and GAO Report
RCED-97-16 (December 1996), recommended that the Forest
Service (1) operate its special uses program in a more businesslike
manner and (2) promulgate regulations to exercise statutory authorities
to recover from applicants and holders the agency's costs to process
special use applications and monitor compliance with special use
authorizations.
In April 1997, the Forest Service completed a reengineering study
of its special uses program. The study identified changes needed to
manage the program in a more businesslike and customer service-oriented
manner. The study also cited the need for regulations enabling the
agency to exercise its cost recovery authorities. Recovery of
processing and monitoring costs will provide additional funding for the
agency to respond more promptly to special use applications, to take
action on expired authorizations, to monitor compliance with
authorizations more effectively, and to satisfy the needs and
expectations of applicants and holders.
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Use of Cost Recovery Fees
The Forest Service will use the processing and monitoring fees paid
by applicants to fund the time and resources that the agency spends on
the decisionmaking process in response to applications for the use and
occupancy of NFS lands; to prepare and issue special use authorizations
when the agency decides to authorize the proposed use and occupancy;
and to monitor compliance with the terms and conditions of special use
authorizations.
The final rule will require an applicant or holder to pay a
processing fee and, where applicable, a monitoring fee. The final rule
will establish categories to be assigned on a case-by-case basis to the
processing of each special use application and to the monitoring of
compliance with each authorization. These categories are based on the
estimated number of hours that agency personnel will spend in
conducting activities directly related to processing an application and
monitoring compliance with an authorization.
This final Forest Service cost recovery rule is consistent with
statutes that authorize the use and occupancy of NFS lands and the
Independent Offices Appropriations Act of 1952 (IOAA), as amended (31
U.S.C. 9701). The IOAA provides that Federal agencies should recover
the costs they incur in providing specific benefits and services to an
identifiable recipient beyond those provided to the general public,
with an exception for official government business. Subsequent
statutes, such as section 504(g) of the Federal Land Policy and
Management Act of 1976 (FLPMA) (43 U.S.C. 1764(g)) and section 28(l) of
the Mineral Leasing Act of 1920 (MLA), as amended (30 U.S.C. 184(1)),
provide more specific authority to the Forest Service to recover costs
associated with processing an application and monitoring an
authorization. The Forest Service's processing of a special use
application provides a specific benefit and service to applicants for
new authorizations and to those proposing modifications to existing
authorizations. The service and benefit provided consist of the
agency's review and consideration of requests to use and occupy NFS
lands. Likewise, monitoring activities for which cost recovery fees are
charged, as enumerated in Sec. 251.58(d)(1) of the final rule, provide
a specific benefit to holders in the form of actions necessary to
ensure, in the case of minor category authorizations, compliance with
the terms and conditions of the authorization during construction or
reconstruction of temporary or permanent facilities and rehabilitation
of the construction or reconstruction site and, in the case of major
category authorizations, compliance with the terms and conditions of
the authorization during all phases of its term. The final processing
and monitoring fee schedules are set out in tables in section 3 of this
final rule. A comparison of the provisions in the proposed and final
rules appears in section 7 at the end of this final rule.
2. Public Comments on the Proposed Rule
Overview
On November 24, 1999, the Forest Service published a proposed rule
in the Federal Register (64 FR 66342) and sought public comment on
adopting regulations for the recovery of costs for processing special
use applications and monitoring compliance with special use
authorizations. The notice explained that the proposed rule would apply
to applications and authorizations for use of NFS lands, including
situations where the land use fee may be exempted or waived, and to
applications and authorizations involving Federal, State, and local
governmental entities. The notice further explained that the proposed
rule would not apply to applications or authorizations for
noncommercial group uses and other uses specifically exempted, or where
processing and monitoring fees were being collected by another Federal
agency on behalf of the Forest Service. The notice provided for a 60-
day public comment period that ended on January 24, 2000.
During the 60-day comment period, the agency received 11 requests
for an extension of the comment period. Respondents indicated that
additional time was needed due to the complexity of the proposed
regulations and the occurrence of the holiday season. Although the
Forest Service did not agree that the proposed regulation was complex,
the agency twice extended the comment period by notice in the Federal
Register (64 FR 72971, Dec. 29, 1999, and 65 FR 10042, Feb. 25, 2000),
so that the comment period finally ended on March 9, 2000.
To ensure the widest possible public review of the proposed
regulations, the Forest Service conducted a series of eight public
meetings between January 4 and March 6, 2000. Forest Service staff at
the national and regional levels explained the proposed regulatory
provisions and answered questions posed by the attendees. Approximately
250 persons attended those meetings. The agency's regional offices also
were encouraged to notify all authorization holders of record of the
proposed cost recovery regulations and the dates and times of the
regional public meetings. In addition, a list of associations and
organizations provided by the Bureau of Land Management (BLM), whose
membership includes special use authorization holders, were notified of
the proposed regulation by either letter or electronic mail. These
addressees were directed to the agency's World Wide Web site where the
proposed regulation, press release, and questions and answers
pertaining to cost recovery were posted.
The Forest Service received 602 letters or electronic messages in
response to the proposed rule. The 602 respondents represented 38
States and the District of Columbia. Each respondent was grouped in one
of the following categories:
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Respondent category Number Percent
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Authorization holder.............................. 275 46
Commercial entity................................. 29 5
Environmental organization........................ 1 < 1
Trade/special interest organization............... 59 10
Private individual................................ 173 29
Forest Service employee........................... 14 2
Federal agency.................................... 9 1
State or local governmental agency................ 34 6
Member of Congress................................ 2 < 1
Unknown........................................... 6 < 1
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Total......................................... 602 100
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Two special use authorization holder groups accounted for the
majority of the comments on the proposed rule. The 194 responses from
outfitters and guides (those holders providing commercial recreation
services on the National Forests) or entities writing in behalf or in
support of outfitters and guides represented 32 percent of the total
number of responses. Almost all of those 194 responses were in the form
of a standardized letter. The 77 responses from holders of
authorizations for recreation residences (privately owned homes
occupying NFS lands), or entities writing in behalf or in support of
recreation residence holders, represented 13 percent of the total
number of responses.
Most respondents offered only general comments supporting or not
supporting the proposed rule. Twenty-four respondents stated that they
supported the proposed rule; 38 stated that they would support the
proposed rule if certain modifications were made; 406 respondents
stated, or their comments
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implied, that they did not support the proposed rule or the general
concept of cost recovery; and the remaining 134 respondents were either
noncommittal concerning cost recovery or not responsive to the issues
presented in the proposed regulation. Responses categorized as
nonresponsive to the Federal Register notice included comments on other
Federal Register notices published by the Forest Service, such as the
roads policy and the roadless area conservation initiative, or comments
expressing a dislike for the Forest Service or the Federal Government
in general. Most of those supporting the proposed rule do not hold a
special use authorization, while the majority of those opposing the
rule were special use authorization holders.
Response to General Comments
In more than 300 comments, respondents offered recommendations in
their support of the proposed rule or explained their opposition to the
proposed rule. These comments did not address a specific section of the
proposed rule, but rather dealt generally with the issue of cost
recovery and the Forest Service's special uses program. These comments
and the Department's responses have been grouped into 8 major
categories.
Comment. Adoption of cost recovery regulations should prompt the
agency to conduct the special uses program in a more businesslike,
consistent, and equitable manner. Some respondents were concerned that
implementation of cost recovery without limits on the amount of fees to
be charged would lead to an uncontrolled bureaucracy. Many respondents
urged that the agency adopt strong customer service standards to ensure
that officials implementing the regulations treat applicants and
holders fairly, promptly, and consistently. A timely response to an
application was important to respondents, which suggested that the
final rule should clarify how the agency would improve its
responsiveness and business practices. Several respondents recommended
that the agency specify in the final rule how much time the agency
would take to process applications.
Response. The Department agrees that improvements in management of
the special uses program are needed, and the Forest Service is
aggressively working to achieve that goal. The reengineering study of
the special uses program conducted by the agency from 1994 through
1997, which is described in the preamble (SUPPLEMENTARY INFORMATION) to
the proposed rule and referenced in this section of the final rule,
provided the impetus for improving the agency's management of its
special uses program. One outcome of the study was the adoption of the
special uses streamlining regulation on November 30, 1998 (63 FR
65949). That regulation has helped reduce costs to applicants and
holders and allows the agency to provide more customer-oriented
service. A second product from the study involved the addition of two
new special use authorization categorical exclusion categories (69 FR
40591, Jul. 6, 2004) to its procedures for implementing the National
Environmental Policy Act (NEPA). These new categorical exclusion
categories are intended to simplify documentation and analysis where
experience has shown there are no significant environmental effects
associated with applications that involve only an administrative change
to an existing authorization, thus reducing the time and funding needed
to process these types of special use applications. These final cost
recovery regulations represent one more step in the agency's continuing
effort to streamline its processes and be more responsive to its
special uses customers.
Further, the Department is incorporating customer service standards
in Sec. 251.58(c)(7) of the final rule that will apply to all
applications processed under these cost recovery regulations. Under
these customer service standards, the Forest Service will endeavor to
make a decision on an application that falls into minor processing
category 1, 2, 3, or 4, and that is subject to a categorical exclusion
pursuant to NEPA, within 60 calendar days from the date of receipt of
the processing fee. If the application cannot be processed within the
60-day period, then prior to the 30th calendar day of the 60-day
period, the authorized officer will notify the applicant in writing of
the reason why the application cannot be processed within the 60-day
period and will provide the applicant with a projected date when the
agency plans to complete processing the application. For all other
applications, including all applications that require an environmental
assessment or an environmental impact statement, the authorized officer
will, within 60 calendar days of acceptance of the application, notify
the applicant in writing of the anticipated steps and timeframes that
will be needed to process the application. The Forest Service will
endeavor to process applications that are subject to a waiver of or
exempt from cost recovery fees in the same manner as applications
subject to cost recovery fees. However, the Forest Service cannot
commit to the customer service standards for these applications since
the resources necessary to process them will be subject to the
availability of appropriated funding.
Comment. The agency must be accountable for the cost recovery funds
it receives. Many respondents said that they were skeptical that the
Forest Service would be accountable for funds received from cost
recovery. Some respondents supported the cost recovery concept with the
expectation that the funds collected would result in an increased level
of service and equal access by all submitting applications. Others
stated that the fees collected must be commensurate with the agency's
cost of processing an application or monitoring an authorization.
Response. The Department shares these respondents' concerns. All
cost recovery funds will remain at the local agency offices that
collect them and will be used specifically for processing applications
or monitoring authorizations. The agency will develop performance
metrics to measure costs and timeframes for processing applications at
the unit level against specified performance standards and report these
to Congress as required by Section 331 of the Interior and Related
Agencies Appropriations Act of November 29, 1999 (Pub. L. 106-113). The
agency will also provide local offices with guidance on fiscal
accountability and auditing processes specific to cost recovery. The
agency will implement direction and train agency personnel on fiscal
and accounting procedures for determining, collecting, and spending
cost recovery funds. In addition, applicants and holders will be given
the opportunity to dispute assessments of processing and monitoring
fees. The final rule will provide applicants and holders with the
opportunity to dispute a cost recovery fee, on a case-by-case basis, by
submitting a written request to change the fee category or estimated
costs to the immediate supervisor of the authorized officer who
determined the fee category or estimated costs.
To those respondents who doubted that cost recovery would improve
the Forest Service's responsiveness to special use applicants, the
Department reiterates its previously stated customer service standards.
Under these standards, authorized officers will be directed to
communicate with applicants within a specified time frame about the
status of processing their applications and to estimate when a
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decision will be made regarding their applications.
Comment. Holders already pay a land use fee that should include the
costs of application processing and permit monitoring. Many respondents
stated that the annual land use fee they pay covers the agency's cost
to process their applications and monitor their authorizations. Some
respondents believed that cost recovery fees constitute a tax on
applicants and holders and suggested that the agency recover its costs
through improved efficiency. Recreation residence authorization holders
stated that they were being unfairly singled out in the proposed
regulation because they must pay a higher annual land use fee due to
recent appraisals of the market value of their use of Federal lands,
and under the proposed rule also would be expected to pay cost recovery
fees. Holders of outfitting and guiding permits noted that they already
pay 3 percent of their gross revenues to the agency to operate a
business on NFS lands, and that this payment should be adequate to
cover the cost to process their applications and monitor their
authorizations.
Response. The statutes that authorize cost recovery and Office of
Management and Budget (OMB) Circular No. A-25, which implements the
IOAA, clearly distinguish between land use fees and administrative
costs. Land use fees are charged to the holder of a special use
authorization based upon the market value of the holder's use and
occupancy of Federal lands. Land use fees do not include the agency's
administrative costs to process applications or monitor authorizations.
Section 251.58(a) of the final rule specifically states that cost
recovery fees are separate from any land use fees charged for the use
and occupancy of NFS lands. Additionally, almost all the land use fees
the Forest Service collects cannot be retained and expended by the
agency and therefore are not available for processing or monitoring
special use authorizations.
In most cases, the effect of the cost recovery regulations on
recreation residence permit holders will be minimal and considerably
less than the effects on applicants for and holders of authorizations
for most of the other special uses covered by the final rule. The final
rule exempts recreation special use applications or authorizations
requiring 50 hours or less to process or monitor. Recreation residences
are defined as a recreation special use in the agency's directive
system. Recreation residence special use permits are typically issued
for a 20-year term. Upon expiration of a recreation residence permit, a
new permit is, in all but a few cases, issued to the existing holder
with no changes in the current use and occupancy. Thus, in almost every
case, an application for a new recreation residence permit will require
50 hours or less to process and will, therefore, be exempt from a
processing fee. In addition, under the final rule, a recreation
residence permit holder will be assessed a monitoring fee only if
monitoring compliance with the holder's authorization requires more
than 50 hours.
Comment. Applicants and holders already pay taxes that should cover
the agency's cost to process applications and monitor compliance with
authorizations. These respondents believed that their Federal taxes,
paid into the U.S. Treasury and Congressionally appropriated for
Federal programs, should be sufficient for the Forest Service to
administer its special uses program. Respondents stated they would be
taxed twice if required to pay cost recovery fees. Some respondents
believed that cost recovery fees should be levied on commercial or
profit-making entities, but that nonprofit entities should not have to
pay because they are otherwise relieved of taxation.
Response. The Department disagrees with the respondents. The
language in applicable statutes and OMB Circular No. A-25 is clear:
identifiable recipients who receive specific benefits or services from
a Federal agency beyond those received by the public generally may be
charged for those benefits or services. The Department believes that
the promulgation of this final rule is fully consistent with applicable
law and that no revisions to the rule or other actions are needed to
address these concerns. Like other entities, nonprofit entities may
qualify for a waiver of cost recovery fees, as described in the section
of the preamble pertaining to Sec. 251.58(f) of the final rule.
Comment. The value of cost recovery is limited if the agency is not
allowed to keep the funds and use them locally to administer the
special uses program. Respondents believed that cost recovery fees
would not improve the agency's performance in processing applications
or monitoring authorizations if cost recovery fees were not available
to the agency or retained at the administrative unit where they were
generated. Several respondents said that there should be strict limits
on the amount of overhead included in determining cost recovery rates.
Response. The Department agrees with the respondents on these
issues. The purpose of the cost recovery regulations is undermined if
cost recovery fees are deposited into the U.S. Treasury and cannot be
used to process applications more promptly and to monitor
authorizations more effectively. The preamble to the proposed rule
stated that the Forest Service did not have the authority to retain and
spend cost recovery fees collected by the agency. Since the publication
of the proposed rule, the agency has obtained statutory authority to
retain and spend cost recovery fees it collects pursuant to this rule
to cover costs incurred by the agency for processing special use
applications and monitoring compliance with special use authorizations.
This authority is contained in the Interior and Related Agencies
Appropriations Act passed on November 29, 1999 (Pub. L. 106-113), which
provides for Forest Service appropriations. Section 331 of the act
authorized the Secretary to develop and implement a pilot program for
the purpose of enhancing Forest Service administration of rights-of-way
and other land uses through September 30, 2004. Section 345 of the
Consolidated Appropriations Act for fiscal year 2005 (Pub. L. 108-447,
Division E) extended this authority through September 30, 2005. Section
425 of the Interior and Related Agencies Appropriations Act for fiscal
year 2006 (Pub. L. 109-54) extended this authority through September
30, 2006. With this pilot authority and upon adoption of this final
rule, the agency will have the necessary tools to assess, collect, and
spend cost recovery fees at the administrative unit where the special
use processing and monitoring work is performed.
The Department agrees with those respondents who expressed a
concern about excessive overhead costs associated with cost recovery
fees. For minor processing and monitoring categories 1 through 4 in the
final rule, overhead costs are included in the flat fee rates
established for each category. The only determining factor for
establishing the appropriate minor fee category will be the estimated
number of agency personnel hours needed to process an application or
monitor an authorization. For major category 5 and category 6
processing and monitoring cases, the overhead rate will be established
using the current nationwide average overhead rate for the Forest
Service. For calendar year 2005, this rate is 17.8 percent. It is the
goal of the Forest Service to reduce the overhead rate to approximately
10 percent by 2008. The overhead rate and yearly updates to it will be
included in the agency's directive system.
Comment. Adoption of cost recovery regulations will not resolve the
delays in processing applications or improve
[[Page 8896]]
agency performance; the agency must streamline the application process
and reduce the amount of environmental documentation required before
reaching a decision on whether to approve an application. This was a
significant concern for respondents and generated more comments than
any other issue. Respondents believed that the application process was
too burdensome, particularly the requirements that stem from NEPA, and
stated that the agency should not require applicants to fund this
burdensome process. Some respondents believed that cost recovery
regulations could be used by the Forest Service, special interest
groups, or individuals to prevent or dissuade special use permitting
activity on NFS lands. Respondents also referred to ``scope creep,'' a
term they used to describe use of processing fees to conduct
environmental analysis and documentation beyond that necessary to reach
a decision on the application being processed. These respondents urged
that the regulations place limits on the scope and cost of
environmental studies.
Response. The Department recognizes these respondents' concerns.
The Department emphasizes the significance of the amendments made to
the special use regulations in November 1998 to 36 CFR part 251,
subpart B, and firmly believes that those streamlining regulations
should allay most of the respondents' concerns about delays and
excessive costs in processing applications. The Department points out
that the Government-wide requirements for environmental analysis and
documentation for activities that impact Federal lands are well
established and must be strictly observed. The agency has implemented
those requirements through procedures issued in its directive system.
The agency acknowledges that its NEPA procedures regarding special use
application processing may not provide sufficient flexibility to
expedite processing and prevent excessive analysis. Therefore, the
agency revised its environmental analysis requirements by adding two
new categorical exclusion categories for certain special use
authorization actions to its environmental policy and procedure
handbook (FSH 1909.15 ) on July 6, 2004 (69 FR 40591). This revision
streamlines NEPA compliance in the special use application process
within the context of statutory and regulatory requirements. Further,
the final cost recovery regulations include guidance at 36 CFR
251.58(c) on processing requirements. Additional direction in the
agency's directive system, employee training during implementation of
the final rule, and internal agency oversight will specifically focus
on this concern to ensure consistency in assessing a processing fee
that is based only on costs necessary for processing an application.
Comment. Adoption of the cost recovery regulations would violate
other Federal laws and would conflict with the Forest Service's own
regulations at 36 CFR 251.54(g)(2). Respondents stated that the agency
lacks the authority to promulgate cost recovery regulations and in so
doing would violate one or more Federal laws. For example, a national
trade association stated that the agency violated the Administrative
Procedure Act (APA) in not giving notice that it would consider public
comments submitted in response to BLM's proposed amendments to its cost
recovery regulations.
Another respondent stated the proposed rule would violate the Civil
Rights Act of 1964 because it would impose fees on low-income Hispanic
families who seek authorizations to gather on NFS lands. Other
respondents stated that the regulation would violate the IOAA because
costs and activities that benefit a broad segment of the public, such
as environmental protection, cannot be passed on to individual
applicants and holders. Respondents also cited the IOAA in claiming
that water storage facilities on NFS lands are specifically exempted
from cost recovery fees.
Several respondents stated that the Forest Service, not the
applicant, is responsible for costs associated with NEPA compliance.
These respondents supported this position by citing 36 CFR
251.54(g)(2), which states that ``the authorized officer shall evaluate
the proposed use for the requested site, including effects on the
environment.''
Response. The IOAA authorizes all agencies of the Federal
Government to recover costs associated with providing specific benefits
and services to an identifiable recipient. This authority applies to
costs incurred by the Forest Service in processing applications for
special use authorizations, including costs incurred in completing
analyses required by NEPA and the Endangered Species Act. These studies
are conducted to meet legal requirements in processing applications and
monitoring authorizations, which are submitted on behalf of individuals
or entities, not the public. Therefore, the Department disagrees with
respondents who stated that the proposed cost recovery rule violates
the IOAA. It is appropriate to require applicants for special use
authorizations to provide information necessary to process their
applications. While the Forest Service must comply with NEPA and other
statutes in processing special use applications, the costs associated
with complying with those statutory requirements in that context are
incurred for the benefit of the applicants.
The IOAA authorizes Federal agencies to recover all types of costs
associated with providing goods and services that benefit an
identifiable recipient. The IOAA does not limit cost recovery to
certain types of goods and services and therefore does not preclude
recovery of processing and monitoring costs associated with special use
authorizations for water storage facilities. Moreover, the cost
recovery provisions in FLPMA also apply to processing and monitoring
costs associated with special use authorizations for water storage
facilities. FLPMA's cost recovery provisions apply to rights-of-way,
which, as defined in FLPMA, include authorizations for water uses.
BLM and the Forest Service published separate proposed cost
recovery rules in the Federal Register for public notice and comment
(64 FR 32106, Jun. 15, 1999 and 64 FR 66342, Nov. 24, 1999,
respectively). BLM's proposed rule addressed cost recovery procedures
specific to applications and authorizations for rights-of-way
authorized by FLPMA and the MLA. Nevertheless, because of the
significant overlap in the subject matter of the agencies' proposed
rules, each agency notified the public that the Forest Service would
consider comments on BLM's proposed rule, which was published first.
Therefore, both BLM and the Forest Service complied with the rulemaking
requirements in the APA.
Subsequently, BLM published another proposed rule in the Federal
Register (65 FR 31234, May 16, 2000) for public notice and comment that
proposed changes to BLM's cost recovery regulations for special
recreation permits. To maximize consistency between the agencies, the
Forest Service also considered comments received by BLM regarding cost
recovery for special recreation permits. On October 1, 2002, BLM
published in the Federal Register (67 FR 61732) the final rule amending
its cost recovery regulations for special recreation permits. In that
rule, BLM changed its threshold for exempting special recreation permit
applicants and holders from processing and monitoring fees, from cases
where BLM's costs to process an application or monitor an
[[Page 8897]]
authorization do not exceed $5,000 to cases where an application or
authorization requires more than 50 hours to process or monitor.
Applicants for and holders of a BLM special recreation permit are now
assessed cost recovery fees only when BLM requires more than 50 hours
to process an application or monitor a permit. This final rule
establishes the same threshold for assessing a processing or monitoring
fee for all Forest Service recreation special uses. A further
discussion of consistency between the Forest Service and BLM cost
recovery regulations is found in the section of the final rule entitled
``Response to Comments on the Supplementary Information Section in the
Preamble to the Proposed Rule.''
The Department disagrees with the respondent who stated that the
cost recovery regulation violates the Civil Rights Act of 1964.
Families gathering on NFS lands will not have to pay a processing or
monitoring fee under the final rule. A family gathering does not
require a special use permit unless it involves 75 or more people (36
CFR 251.50(c)(3) and 251.51). Moreover, such a family gathering would
constitute a noncommercial group use, and the final rule exempts
noncommercial group uses from cost recovery fees. In addition, any cost
recovery fees applicable to other special uses under the final rule
will be assessed in a fair and nondiscriminatory manner.
Comment. Adoption of cost recovery regulations will adversely
impact small businesses operating on the National Forests and/or will
impact the economies of local communities. These respondents, mostly
those providing recreation services to the public, believed that the
regulations would increase the cost of doing business on NFS lands and
would force current and future holders of authorizations off those
lands. Other respondents felt the potential loss of business through
higher costs would ultimately impact those local communities where the
businesses are headquartered. Some respondents suggested that the
agency could prevent such an eventuality by asking Congress for the
necessary funds to process special use applications and monitor special
use authorizations.
Response. The Department recognizes these respondents' concerns but
notes that implementation of these regulations, coupled with the
recently adopted streamlining regulations, will allow the agency to
become more efficient and cost-effective in administering its special
uses program. Applicants and holders will directly benefit from these
efficiencies.
The final rule exempts individuals and entities, including small
businesses, from cost recovery fees for recreation special use
applications and authorizations requiring 50 hours or less to process
or monitor. The final rule also exempts from processing or monitoring
fees those applications or authorizations that take one hour or less to
process or monitor. In addition, the basis for assessing a monitoring
fee has been limited in the final rule.
For nonrecreation special use applications and authorizations
requiring 50 hours or less to process or monitor, the cost recovery
fees, which will be determined from the applicable rate in a schedule,
will be modest and should not adversely impact small businesses, other
entities, or individuals who wish to use Federal lands for personal or
commercial gain.
For example, an application that is subject to a categorical
exclusion pursuant to FSH 1909.15, section 31, most likely will take 50
hours or less to process. In the absence of extraordinary
circumstances, i.e., a significant environmental effect on certain
sensitive resource conditions, FSH 1909.15, section 31, categorically
exempts from documentation in an environmental assessment or
environmental impact statement (1) approval, modification, or
continuation of minor, short-term (1-year or less) special uses of NFS
lands; (2) approval, modification, or continuation of minor special
uses of NFS lands that require less than 5 contiguous acres of land;
and (3) issuance, amendment, or replacement of a special use
authorization that involves only administrative changes (such as a
change in ownership of the authorized facilities or a change in control
of the holder) and does not involve any changes in the authorized
facilities, an increase in the scope or intensity of the authorized
activities, or an extension of the term of the authorization, and the
applicant is in full compliance with the terms and conditions of the
authorization.
For processing or monitoring fees for more complex applications or
authorizations, the authorized officer will estimate the agency's full
actual costs. The Forest Service has prepared a cost-benefit analysis
of the final rule, which concludes that the final rule could have an
economic impact on small businesses if their application or
authorization requires a substantial amount of time and expense to
process or monitor. These entities could be economically impacted, for
example, when they apply for agency approval to expand or change their
authorized use, or when an expired authorization prompts them to apply
for a new authorization to continue their use and occupancy, and the
application requires a substantial amount of time and expense to
process.
Because for major category processing and monitoring fees, the
authorized officer will estimate the agency's full actual costs, it is
difficult to quantify the impacts of those fees programmatically.
However, the agency will endeavor to minimize these costs. In addition,
the final rule provides all applicants and authorization holders with
the opportunity to discuss with the authorized officer determinations
that are made to establish a cost recovery fee category (for minor
processing and monitoring cases) or estimated costs (for major category
processing and monitoring cases). The final rule also provides
applicants and authorization holders the opportunity to request that
the authorized officer's immediate supervisor review an authorized
officer's determination of a fee category or estimated costs. Based on
the foregoing, the Department believes that cost recovery fees adopted
by this final rule will not broadly impact or pose an economic barrier
to local economies.
It is not reasonable to assume that Congress will support
additional funding for the agency's special uses program as an
alternative to cost recovery. In recent years, Federal agencies'
appropriations have remained relatively constant or have decreased.
Congress has, however, provided alternative authorities to fund
government programs that are equitable and fiscally and
administratively sound. The Department firmly believes that the cost
recovery provisions contained in this final rule exemplify this
approach. Respondents raised a similar issue regarding regulatory
impact that is discussed in the following section concerning comments
on the preamble to the proposed rule.
Response to Comments on the Supplementary Information Section in the
Preamble to the Proposed Rule
Many respondents commented on the supplementary information section
in the preamble to the proposed rule, which outlined the agency's
expected procedures for implementing cost recovery and explained the
provisions of the proposed rule. The preamble also provided readers
with a table showing the Forest Service's and BLM's proposed processing
and monitoring fee rates.
Comment. The information in the preamble is vague and open-ended.
Respondents stated that the descriptions
[[Page 8898]]
for the specific sections of the proposed rule were insufficient. A few
were concerned that certain types of special uses were not addressed,
leaving the respondents uncertain as to whether they would be affected
by the proposed rule. Others were uncertain whether cost recovery would
apply to existing applications and authorizations on file with the
agency. Some respondents cited the need for clarification of certain
terms used in the preamble. Several respondents said that the
definition for authorized officer gives too much discretion to the
deciding official in determining cost recovery fees. Respondents
questioned the definition for monitoring in the proposed rule and
stated that the term ``reasonable costs'' as discussed in the preamble
and fee schedule was vague. Use of the term ``noncommercial group
uses'' caused confusion among several respondents as to its
applicability to special uses. Some respondents commented that the term
``right-of-way'' in FLPMA refers only to roads, and since the right-of
way granted to these respondents is not a road, it is not subject to
the cost recovery provisions of FLPMA or any other statute.
Response. The proposed language at 36 CFR 251.58(b) outlined the
situations in which a cost recovery fee would be assessed. In response
to concerns about the scope of the proposed rule, the Department is
tightening and more clearly stating the types of applications and
authorizations that will be subject to processing and monitoring fees.
This final rule will be incorporated into existing regulatory text,
which already includes the definitions for authorized officer, group
use, and noncommercial use or activity at 36 CFR 251.51. Nevertheless,
the Department recognizes the need for clarification of some of the
terms and processes described in the preamble of the proposed rule. The
final rule has been carefully reviewed and revised to ensure that the
purpose and intent of cost recovery are fully documented and explained
and that respondents' concerns about clarity of terms are addressed.
The authorized officer has a specific role within the Forest
Service as the agency official delegated the authority to perform the
duties and responsibilities for managing an administrative unit of NFS
lands. Specific to the special uses program, the Chief of the Forest
Service is responsible for accepting and evaluating special use
applications and issuing, amending, renewing, suspending, or revoking
special use authorizations. This authority is delegated to the
appropriate line officer at the Regional, Forest, or District level as
provided in 36 CFR 251.52. This line officer, or authorized officer,
has the authority to issue special use authorizations and assess land
use fees for use and occupancy of NFS lands and, once this final rule
goes into effect, will have the authority to determine and assess
processing and monitoring fees associated with issuance and
administration of those authorizations. The Department has addressed
respondents' concerns that too much authority would rest with the
authorized officer in determining processing and monitoring fee
categories and estimated costs by providing in the final rule that
applicants and holders may request a review of these determinations by
the authorized officer's immediate supervisor.
Section 251.51 of the current special use regulations contains
definitions for group use and noncommercial use or activity. The term
``group use'' applies to those activities that involve a group of 75 or
more people, either as participants or spectators; the term
``noncommercial use or activity'' is a use or activity that does not
involve the charging of an entry or participation fee or the sale of a
good or service as its primary purpose. The phrase ``noncommercial
group use'' in the proposed rule combined the two terms to identify a
specific type of special use. This type of activity may involve the
exercise of First Amendment rights. Federal court decisions required
the Department to amend its special use regulations with regard to this
type of activity to meet First Amendment requirements. These revisions
were made to 36 CFR 251.51 and 251.54 in accordance with the court
decisions (60 FR 45293, Aug. 30, 1995).
The definition for monitoring has been revised in the final rule to
address respondents' concerns about the activities included in
monitoring, specifically for minor category cases, and is further
explained in the specific comments on 36 CFR 251.51.
The term ``reasonable cost'' is used in section 504(g) of FLPMA,
which provides that the Secretary concerned may, by regulations or
prior to promulgation of such regulations, require an applicant for or
holder of a right-of-way to reimburse the United States for all
reasonable administrative and other costs incurred in processing an
application for the right-of-way, and in monitoring the construction,
operation, and termination of the facilities authorized pursuant to the
right-of-way. Applicants for and holders of authorizations issued under
the MLA may be required to pay full actual costs instead of full
reasonable costs.
Section 4 of the preamble to the proposed rule (64 FR 66342)
clearly stated that processing fee provisions would apply to all
special use applications, not just to applications for rights-of-way
under FLPMA. In addition, section 501(a) of FLPMA defines right-of-way
as a reservoir, canal, ditch, flume, lateral, pipe, pipeline, tunnel,
facility for the impoundment, storage, transportation, or distribution
of water, electronic communications use, road, trail, railroad,
tramway, or airway. Therefore, the definition for right-of-way under
FLPMA includes more than roads and other linear uses. In addition,
FLPMA is just one of the numerous statutes that authorize use and
occupancy of NFS lands.
Comment. If a special use provides a public benefit, it is not
subject to the cost recovery provisions in the IOAA and FLPMA. Several
respondents, commenting on the listing in the preamble of the statutory
authorities governing special uses administration, stated that certain
water uses and recreation residences are not subject to the cost
recovery requirements of the final rule because these uses provide
benefits to the public.
Response. This comment relates to the concern addressed previously
about violation of Federal statutes. The Department reiterates that
this final cost recovery rule is well founded in law. The IOAA
authorizes all agencies of the Federal Government to recover costs
associated with providing specific benefits and services to an
identifiable recipient, including applicants for and holders of water
use and recreation residence special use authorizations. Additional
authority to recover processing and monitoring costs is provided by
section 504(g) of FLPMA and section 28(l) of the MLA. There is no
exemption in these statutes for uses that provide a public benefit in
addition to benefiting identifiable recipients.
Comment. Facilities authorized on NFS lands that are financed, or
eligible to be financed, with a loan pursuant to the Rural
Electrification Act of 1936 (REA) should be exempted from cost recovery
fees. The preamble to the proposed rule stated that the provisions of
the cost recovery regulations would apply in situations where the land
use fee may be exempted or waived. The preamble specifically mentioned
facilities financed or eligible to be financed under the REA as an
example where the land use fee is exempted, but a cost recovery fee
would be assessed.
[[Page 8899]]
Several REA entities and their national representatives commented that
a 1984 amendment to FLPMA specifically exempts REA-financed facilities
on NFS lands from cost recovery fees. These respondents believed that
it was the intent of Congress, in passing the 1984 amendment to FLPMA,
to exempt these facilities from all fees, including cost recovery fees.
Response. The Department disagrees with these respondents. The 1984
amendment to FLPMA explicitly differentiated between a land use fee and
an administrative fee and excluded the latter from the fee exemption
provided for by that amendment. With respect to administrative fees,
the proviso to the amendment stated that ``nothing in this sentence
shall be construed to affect the authority of the Secretary granting,
issuing, or renewing the right-of-way to require reimbursement of
reasonable administrative and other costs pursuant to the second
sentence of this subsection'' (43 U.S.C. 1764(g), as amended by Pub. L.
98-300). The Department also notes that BLM has been collecting cost
recovery fees from holders of rights-of-way for these facilities on
public lands for many years under its cost recovery regulations. No
revision to 36 CFR 251.51(g) of the final rule has been made to respond
to this concern.
Comment. Processing and monitoring fees should be displayed in
separate schedules. Several respondents stated that displaying both
processing and monitoring fees in the same schedule was confusing
because it appeared to link the two fees, when in fact they were not
linked. They recommended that the two types of fees be displayed in
separate schedules.
Response. The Department concurs with this recommendation. The
processing and monitoring fees that appear in section 3 of the preamble
are displayed in separate schedules. These separate schedules will be
incorporated into the Forest Service's directive system.
Comment. The proposed regulations constitute a significant rule.
Several respondents disagreed with the agency's conclusion in the
preamble that the proposed rule is not significant and would not have
an annual effect of $100 million or more on the economy or adversely
affect productivity, competition, jobs, the environment, public health
or safety, or State or local governments. These respondents believed
that the proposed regulations could impose substantial financial
burdens on small businesses and their customers, which could hurt local
economies. Therefore, the proposed regulations should be subject to OMB
review. In a related concern, a few respondents stated that the agency
failed to consider the economic impacts of the proposed rule on small
entities pursuant to the Regulatory Flexibility Act.
Response. The criteria for determining whether a proposed rule is
significant are prescribed by United States Department of Agriculture
procedures and Executive Order 12866 on regulatory planning and review.
The Department has estimated that the annual cost recovery fees
collected under the provisions of this final rule will be less than $10
million, well below the $100 million threshold for significance of a
rule.
The Forest Service's final rule has been deemed significant under
the EO 12866. Accordingly, the agency has prepared a programmatic cost-
benefit analysis and a threshold Regulatory Flexibility Act analysis
for the final rule, as referenced in section 5 of the supplementary
information section in the preamble of this rule. The threshold
Regulatory Flexibility Act analysis was conducted to ascertain if the
final rule would have a significant economic impact on a substantial
number of small entities and if so, if more detailed analyses were
required pursuant to the Regulatory Flexibility Act. Based on the cost-
benefit and threshold Regulatory Flexibility Act analyses, the
Department believes that the final rule will not have a significant
economic impact on a substantial number of small entities.
Comment. Greater use should be made of master agreements. Some
respondents, particularly large commercial entities holding several
authorizations involving several sites on NFS lands, advocated use of
master agreements to allow for processing multiple applications and
monitoring multiple authorizations through a single document. These
respondents suggested that master agreements should be issued for a 10-
year period and should cover an entire Forest Service administrative
unit, up to and including a Regional unit. Some suggested that master
agreements provide for monitoring by the holder, rather than by the
Forest Service.
Response. The Department agrees that there should be greater use of
master agreements. The Forest Service, as part of its efforts to
increase the efficiency and cost-effectiveness of its special uses
program, will seek to expand use of master agreements with the
implementation of this final rule. In addition, the final rule has been
modified to include provisions for master agreements in the monitoring
fee schedules. The Department does not believe, however, that master
agreements should provide for monitoring solely by the holder, rather
than by the Forest Service. Master agreements may provide for some
monitoring tasks to be performed by the holder. Any monitoring tasks
performed by the holder under a master agreement will not be subject to
cost recovery fees under the final rule.
Comment. Greater consistency is needed between the Forest Service
and BLM on cost recovery. Respondents stated that there were
inconsistencies between the regulations proposed by each agency and
urged that the final regulations be made consistent. The inconsistency
that respondents mentioned most often was that under its proposed rule,
BLM would not assess cost recovery fees for outfitters and guides
operating on BLM-administered lands. The same respondents believed that
BLM is more responsive to requests to use BLM-administered lands.
Response. The Forest Service and BLM sought consistency between the
Forest Service's proposed cost recovery rule (64 FR 66342, Nov. 24,
1999) for special uses and BLM's proposed cost recovery rule for its
right-of-way program (64 FR 32106, Jun. 15, 1999) in terms of schedule
categories, rates, definitions, and other matters relating to
implementation of cost recovery. However, the Department agrees that
there can be greater consistency between the Forest Service's and BLM's
cost recovery rules, and the final rules of both agencies have been
modified to achieve that goal, as discussed below.
Subsequent to publication of the Forest Service's proposed cost
recovery rule for special uses and BLM's proposed regulations for its
right-of-way program, BLM published another proposed cost recovery rule
in the Federal Register (65 FR 31234, May 16, 2000) to amend cost
recovery requirements for its special recreation permit program in 43
CFR part 2900. In their proposed rule, BLM proposed to change its
threshold for exempting special recreation permit applicants and
holders from processing and monitoring fees where BLM's costs to
process an application or monitor an authorization do not exceed
$5,000, to cases where an application or authorization requires more
than 50 hours to process or monitor. The proposed rule also stated that
full costs would be charged for special recreation permit applications
or authorizations that require over 50 hours to process or monitor. A
final cost recovery rule for BLM's special recreation permits that
adopted this new
[[Page 8900]]
threshold was published in the Federal Register on October 1, 2002 (67
FR 61732).
To maximize consistency with BLM, the Department is adopting the
same approach for Forest Service recreation special uses in this final
rule. Recreation special uses are identified in FSH 2709.11, chapter
50, by use codes 111 through 165. Recreation special use applications
or authorizations that require 50 hours or less to process or monitor
will be exempt from cost recovery fees. This change from the proposed
rule also addresses the concerns that many small businesses expressed
regarding the financial hardship that would be created by the cost
recovery rule if it were adopted as originally proposed. Other
revisions to the final rule that provide for greater consistency
between the Forest Service and BLM are addressed in the response in the
following comment.
Comment. Some respondents recommended that the fee rates and
schedules be revised. There were 7 respondents who thought the proposed
fees were acceptable, 20 who thought the fees were too high, and 4 who
thought the fees were too low. Forty-one respondents offered other
comments on the proposed cost recovery fees presented in the schedules
in the preamble of the proposed rule. Several respondents stated that
the fees for category A, the minimal impact processing fee category in
the proposed rule, were too high considering the processing effort
required. A fee of $25 was suggested as an alternative. Others
suggested that subcategories of category A be established that would
recognize that some actions have substantially no impact. Others
suggested that issuance of a temporary permit (with less than a 1-year
term), issuance of a new permit due to a change in ownership, and
renewal of a permit were actions with minimal impact that should have a
flat processing fee of $75. One respondent stated that there is a
disparity in the hourly rate for each processing and monitoring
category when that rate is determined by dividing the rate in each
category by the maximum number of hours for each category. Respondents
also suggested that the table display a fee in the proposed policy for
monitoring category B-IV and that monitoring fees be limited to
construction or reconstruction activities. Several respondents
suggested that the Department add a master agreement category for
monitoring.
Response. The Forest Service proposed two separate fee schedules to
track the two separate fee schedules in BLM's cost recovery rule for
its right-of-way program: One for applications and authorizations
subject to the MLA, and one for applications and authorizations subject
to FLPMA. Separate fee schedules were established because of the
differences in the legal standard for calculating cost recovery fees
under the MLA and FLPMA. The preamble of the proposed rule also stated
that the Forest Service proposed to adopt cost recovery fee rates
similar to BLM's proposed fee rates for processing applications and
monitoring authorizations because (1) the Forest Service's costs to
process applications and monitor authorizations for use and occupancy
of NFS lands are comparable to BLM's costs to process applications and
monitor authorizations for rights-of-way on BLM-administered lands and
(2) the public is better served by maintaining consistency in
administration of special uses and rights-of-way by the Forest Service
and BLM. To maximize interagency consistency, the fee schedules and
rates established in this final rule are the same as those adopted by
BLM in its final right-of-way rule published in the Federal Register
(70 FR 20969, Apr. 22, 2005). Changes to the fee schedules and rates in
the Forest Service's proposed rule are discussed below.
In the preamble of its final rule, BLM acknowledged that in
establishing processing and monitoring fees under FLPMA, the agency is
required to consider the reasonableness factors in section 304(b) of
FLPMA. These factors include an agency's actual costs, the monetary
value of the rights and privileges sought, that portion of the costs
which may be incurred for the benefit of the general public interest,
the public service provided, the efficiency of the Government
processing involved, and other factors relevant to determining the
reasonableness of costs.
However, BLM also stated that in its proposed rule (64 FR 32110) it
recognized that ``for all but complex projects * * * the reasonability
factors have little or no effect on actual costs.'' BLM's final rule
reflects this conclusion. In its final rule, BLM determined that for
categories 1 through 4, processing and monitoring fees under FLPMA are
identical to processing and monitoring fees under the MLA, which does
not require consideration of reasonableness factors in establishing
cost recovery fees. For example, a category 2 processing fee for
applications submitted under authorities other than the MLA is
identical to a category 2 processing fee for applications submitted
under the MLA. A category 3 monitoring fee for authorizations issued
under authorities other than the MLA is identical to a category 3
monitoring fee for authorizations issued under the MLA.
BLM supported this analysis by citing a 1996 Solicitor's Opinion on
cost recovery (M-36987), entitled ``BLM's Authority to Recover Costs of
Minerals Document Processing.'' That opinion clarified that ``[a]
factor such as the `monetary value of the rights and privileges sought
by the applicant' could, when that value is greater than BLM's
processing costs, be weighed as an enhancing factor, offsetting a
diminution due to another factor such as `the public service provided'
'' (see M-36987 at 36).
Conversely, BLM's final rule acknowledged that there is more likely
to be a disparity between FLPMA and MLA fees for category 5 and
category 6 cases, which are equivalent to the agency's full costs.
Accordingly, BLM's final rule establishes one schedule for minor
category processing fees and one schedule for minor category monitoring
fees, both of which are based on actual costs. In addition, BLM's final
rule establishes two schedules for major category processing fees and
two schedules for major category monitoring fees to differentiate
between applications or authorizations subject to the MLA, for which
full actual costs will be charged, and applications and authorizations
subject to FLPMA, for which full reasonable costs will be charged.
In the preamble of its proposed rule, the Department acknowledged
that the proposed fee schedules and rates for categories B-I through B-
IV (categories 1 through 4 in the final rule), would be identical to
those proposed by BLM and are based on the cost data that BLM has
collected to support those schedules and rates. Therefore, it is
logical for the Department to adopt the same fee schedules and rates
established in BLM's final rule. Thus, the Department's final rule
establishes one schedule for minor category processing fees and one
schedule for minor category monitoring fees, both of which are based on
actual costs. Also consistent with BLM, the Department's final rule
establishes two schedules for major category processing fees and two
schedules for major category monitoring fees to differentiate between
applications or authorizations subject to the MLA, for which full
actual costs will be charged, and applications or authorizations
subject to other authorities, for which full reasonable costs will be
charged.
Several respondents thought that the rates in the Department's
proposed rule (64 FR 66342) were either too high or too low. However,
none of these
[[Page 8901]]
respondents offered documentation or other information as to what the
rates should be.
The Department concurs with the respondent who expressed concern
about disparity among the hourly rates for the minor categories in the
processing and monitoring fee schedules. BLM received a similar comment
on its proposed regulations for its right-of-way program (64 FR 32106).
In response to those comments, BLM and the Department revised their
minor category rates.
In its final rule, BLM defined each minor processing and monitoring
category by the estimated number of hours needed to process or monitor
an application or authorization. In doing so, BLM needed to determine a
mean hour or average number of hours for processing and monitoring for
each category. For example, for category 1 the mean hour is 4.5; for
category 2 the mean hour is 16; for category 3 the mean hour is 30; and
for category 4 the mean hour is 43.
BLM derived a mean per-hour rate using category 4 (which in the
Forest Service proposed rule was processing Category B-III) and
determined the mean per-hour rate to be $21.46 (which reflects actual
costs based on BLM field studies). BLM then multiplied the mean hour in
each category by the same mean per-hour rate, to ensure that each minor
category is cost-weighted the same. Multiplying the mean hour for each
category by the mean per-hour rate produced the fee for each category.
For example, the mean hour for minor category 2 (> 8 and <= 24 hours)
is 16. Thus, the rate for minor category 2 is $21.46 multiplied by 16,
or $343. As another example, the mean hour for minor category 4 (> 36
and < = 50 hours) is 43. Thus, the rate for that category is $21.46
multiplied by 43, or $923. The Department reiterates that it is
adopting in this final rule the same rates and the same rationale for
those rates as BLM (70 FR 20969, Apr. 22, 2005) and considers the
changes to be within the scope of public comment on both agencies'
proposed cost recovery rules.
In justification of the mean hour and mean per-hour rate for each
category, BLM stated in the preamble of its final right-of-way rule
that the $21.46 mean per-hour rate for processing and monitoring fees
would approximate the hourly wage in 2005 for an employee at the GS-9,
Step 3, level. These rates compare favorably with BLM's 1987 minor
category processing rates. These rates, if adjusted to a mean per-hour
rate, would average $11 per mean hour, which was the hourly wage earned
by a BLM employee in 1987 at the GS-9, Step 2, level, according to the
1987 General Schedule. Most of BLM's right-of-way applications and
authorizations are processed and monitored by employees who are at the
GS-9 to GS-11 levels and who will earn between $20.02 (GS-9, Step 1)
and $31.48 (GS-11, Step 10) per hour in 2005.
The Department is adding a new processing fee category 1 (> 1 and
< = 8 hours) (formerly category A for applications processed under
authorities other than the MLA) to its minor category processing fee
schedule to exempt those applications that require 1 hour or less to
process and is also adding a new minor category monitoring fee category
1 (> 1 and <= 8 hours, paragraph (d)(2)(i)) to its monitoring fee
schedule, to provide consistency between the processing and monitoring
fee schedules. With the addition of the new category 1 (> 1 and <= 8
hours) to the monitoring fee schedule, the range of hours for
monitoring fee category 2 in the final rule is revised to more than 8
and up to and including 24 hours.
The Department agrees with some of the concerns regarding the $75
minimal impact category. Revisions to the minimal impact category are
discussed further in the next section in the response to comments on 36
CFR 251.58(b), (d), and (f) of the proposed rule. The Department also
agrees with those who suggested the need for a master agreement
category for monitoring, and one has been added in 36 CFR
251.58(d)(2)(v) of the final rule.
Additional changes to the processing and monitoring fee schedules
in the final rule include enumerating categories by Arabic numerals
instead of alpha-Roman numerals, establishing one minor category
processing fee schedule and one minor category monitoring fee schedule,
clarifying the criteria in the minimal impact processing category, and
distinguishing between minor and major fee categories. The final
processing and monitoring fee schedules and rates are set out in
section 3 of the preamble. As displayed, all minor category fee rates
are consistent with those established by BLM in its final rule and have
been indexed using the cumulative rate of change from the calendar year
(CY) 2004 second quarter to the CY 2005 second quarter in the Implicit
Price Deflator-Gross Domestic Product (IPD-GDP) index to reflect CY
2006 rates. This approach is consistent with the indexing of these
minor category fee rates that was identified in the proposed rule, and
will be used to index these minor category processing and monitoring
fee rates annually for CY 2007 and beyond.
The following tables have been prepared to display the differences
between the proposed and final processing and monitoring fee
categories:
------------------------------------------------------------------------
Final rule processing
Proposed rule processing category category
------------------------------------------------------------------------
Processing Fees for Minor Category Applications
------------------------------------------------------------------------
None proposed............................. No processing fee < = 1 hour.
(A) Minimal Impact < 8 hours.............. (1) Minimal Impact > 1 and
< = 8 hours.
(B-I) > 8 and <= 24 hours................. (2) > 8 and <= 24 hours.
(B-II) > 24 and <= 36 hours............... (3) > 24 and <= 36 hours.
(B-III) > 36 and <= 50 hours.............. (4) > 36 and <= 50 hours.
-------------------------------------------
Processing Fees for Major Category Applications
------------------------------------------------------------------------
(C) Master Agreement...................... (5) Master Agreement.
(B-IV) > 50 hours......................... (6) > 50 hours.
-------------------------------------------
Monitoring Fees for Minor Category Authorizations
------------------------------------------------------------------------
None proposed............................. No monitoring fee < = 1 hour.
-------------------------------------------
(A) Minimal Impact <8 hours............... (1) Minimal Impact >1 and <=
8 hours.
(B-I) > 8 and <= 24 hours................. (2) > 8 and <= 24 hours.
(B-II) > 24 and <= 36 hours............... (3) > 24 and <= 36 hours.
(B-III) > 36 and <= 50 hours.............. (4) > 36 and <= 50 hours.
-------------------------------------------
Monitoring Fees for Major Category Authorizations
------------------------------------------------------------------------
None proposed............................. (5) Master Agreement.
(B-IV) > 50 hours......................... (6) > 50 hours.
------------------------------------------------------------------------
Response to Comments on Specific Sections of the Proposed Rule
The following are comments on specific sections of the proposed
rule and the Department's responses.
Section 251.51 Definitions. The proposed rule added a definition
for monitoring to ensure consistency in the identification of
activities subject to a monitoring fee and in the determination of
monitoring fee categories and amounts. The term encompassed monitoring
of construction and reconstruction activities and on-site inspections
of facilities and activities to ensure compliance with an
authorization, and excluded costs associated with routine
administrative actions. Activities that would be
[[Page 8902]]
included in determining monitoring costs were identified in Sec.
251.58(d)(1) of the proposed rule.
Comment. Several respondents stated that the definition was too
broad and provided too much discretion to the authorized officer. Some
stated that it should be revised to exempt routine compliance
inspections of authorized activities and that it should be limited to
construction activities. Others believed that the definition as
proposed would limit cost recovery for monitoring to 1 year, and that
it should instead be an annual event for the life of the authorization.
Response. The Department agrees that the term ``monitoring'' in the
proposed rule was unclear and that the activities that would be covered
by that term could be interpreted differently than intended. In the
proposed rule, ``monitoring'' was intended to include actions required
to ensure compliance during construction or reconstruction of
facilities and the estimated time needed to inspect the authorized
facility or operations during a 1-year period. This latter provision
concerning the estimated time needed to ensure compliance during a 1-
year period seemed to create the most confusion. Therefore, the final
rule distinguishes between monitoring in general and the basis for
charging monitoring fees. In the final rule, monitoring, which is an
activity that occurs in administration of the special uses program
generally, is defined as ``actions needed to ensure compliance with the
terms and conditions in a special use authorization.'' The basis for
charging a monitoring fee for minor category cases has been limited in
the final rule to include only those activities required to monitor
construction or reconstruction of temporary or permanent facilities and
rehabilitation of the construction or reconstruction site. The 1-year
restriction on charging monitoring fees has been removed, and a minimal
impact monitoring fee category 1 (>1 and <=8) has been added. With the
addition of the minimal impact category 1 to the monitoring fee
schedule, the range of hours in category 2 has been modified to >8 and
< =24, which is consistent with the range of hours established for
processing fees.
In the final rule, major category 5 and category 6 monitoring fees
may include the agency's estimated cost to ensure compliance with the
terms and conditions of the authorization during all phases of its
term, including, but not limited to, monitoring to ensure compliance
with the authorization during the construction or reconstruction of
temporary or permanent facilities and rehabilitation of the
construction or reconstruction site. For example, monitoring fees may
be charged for communications site engineering inspections, ski area
tramway inspections, water quality monitoring, or threatened or
endangered species habitat monitoring. For major category 5 and
category 6 cases, the authorized officer will estimate the agency's
full actual monitoring costs.
Monitoring for all categories does not include billings,
maintenance of case files, annual performance evaluations, or scheduled
inspections to determine compliance generally with the terms and
conditions of an authorization.
Based on the respondents' concerns with the provisions of Sec.
251.58(c), the Department believes that the categories for processing
and monitoring fees need to be clarified. Accordingly, definitions for
major category and minor category have been added to this section. A
minor category in the final rule refers to actions in processing
categories 1 through 4 (in the proposed rule, categories A through B-
III for applications other than those authorized under the MLA, and B-1
through B-III for applications authorized under the MLA) and monitoring
categories 1 through 4 (in the proposed rule monitoring categories A
through B-III for authorizations other than those issued under the MLA,
and B-1 through B-III for authorizations issued under the MLA). This
revision to the final rule incorporates several changes to Sec.
251.58(c) and (d) to ensure that the processing and monitoring fee
categories are correctly identified.
Section 251.58 Cost Recovery
Section 251.58(a) Assessment of fees to recover agency processing
and monitoring costs. This section of the rule provides an overview of
the cost recovery concept. This section states that the agency shall
assess processing and monitoring fees and that those fees are to be
separate from any fees charged for use and occupancy of NFS lands. This
section also provides broad guidance on how these fees are to be
determined.
Comment. Respondents asked for clarification of the provisions on
several points. Several requested that agency overhead costs not be
included in the fee calculation; that current authorizations, including
renewals, be exempted from the regulations; and that authorizations
issued annually for the same activity to the same holder, such as some
outfitting and guiding permits, be charged a one-time processing fee
covering a 5-year period. Finally, one respondent recommended that
processing fees not include costs incurred in compiling baseline
information and resource data.
Response. The Department acknowledges these concerns, but notes
that this section provides broad guidance and that the subsequent
sections of the rule set forth detailed requirements. Thus, these
issues are addressed in the response to comments in several of the
following sections. Several other sections have been revised in
response to these comments, and Sec. 251.58(a) of the final rule has
been revised as needed for consistency with the revised text of those
other sections.
The provision in Sec. 251.58(b)(3) of the proposed rule requiring
applicants and holders to submit sufficient information for the
authorized officer to assess the number of hours required to process
their applications or monitor their authorizations was revised in the
final rule for clarity and moved to Sec. 251.58(a) because this
requirement relates to processing and monitoring fees generally, not
just to processing fees charged under Sec. 251.58(b)(3).
The Department has removed provisions in Sec. 251.58(a) regarding
fee categories and rates because they are addressed in Sec.
251.58(c)(2), (d)(2), and (i).
Section 251.58(b) Special use applications and authorizations
subject to cost recovery requirements. This section of the final rule
describes those situations in which processing and monitoring fees will
be assessed.
Comment. Many respondents commented on this section. Nearly all
stated that cost recovery should not apply to those special uses that
are currently authorized on NFS lands, including modifications of
existing authorizations and issuance of new authorizations when
existing authorizations terminate according to their terms or when
there is a change in ownership or control of the authorized facilities
or the holder of the authorization. For example, recreation residence
holders stated that their authorization does not require them to apply
for a new authorization upon termination of their existing
authorization. Therefore, they should not be subject to a processing
fee each time they seek a new authorization to continue their use and
occupancy of NFS lands. Several respondents stated that authorizations
the agency issues annually, such as many outfitting and guiding
permits, should not be subject to an annual processing fee. Several
other respondents suggested that cost recovery not apply to
applications the agency accepted prior to adoption of the final rule.
Some respondents stated that
[[Page 8903]]
cost recovery fees should apply only to commercial activities, or that
the fees should be credited back to the holder upon payment of the
annual land use fee. In addition, some respondents believed that the
minimal impact processing fee in the proposed regulation was excessive
in some situations. Several respondents suggested that special uses
that take very little time to process or have minimal impact should not
be subject to a $75 processing fee, or to any processing fee at all.
Response. The Department believes that a number of these
recommendations have merit. Applications that are being processed with
funding provided by the applicant under the terms of a collection
agreement negotiated by the agency and the applicant should proceed and
not be disrupted by the provisions of the final rule. Similarly, in
cases where the agency has started processing an application before
adoption of the final rule, it is fair to complete processing the
application with appropriated funds. However, the Department believes
that where a proposal has been formally accepted as an application and
the Forest Service has not yet initiated processing the application,
the cost recovery regulations should apply. Accordingly, the final rule
at Sec. 251.58(b)(1) has been revised to state that the processing fee
provisions of the final rule will not apply to or supersede written
agreements providing for recovery of processing costs executed by the
agency and applicants prior to adoption of the final rule. Further,
Sec. 251.58(b)(1) now states that proposals accepted as applications
which the agency has commenced processing prior to adoption of the
final rule will not be subject to processing fees.
The Department also has revised Sec. 251.58(g) of the final rule
regarding exemptions from cost recovery. The Department has amended the
proposed rule to exempt from cost recovery all recreation special use
applications and authorizations that require 50 hours or less to
process or monitor. This change, as previously mentioned, is consistent
with BLM's cost recovery rule for special recreation permits on BLM-
administered lands. This change will alleviate the concerns expressed
by most holders of recreation residence special use permits, as an
application for a new permit to replace an expiring permit often will
require 50 hours or less to process.
The Department does not agree, however, with those respondents who
wish to exempt from cost recovery noncommercial activities other than
noncommercial group uses (which may involve First Amendment activities
and therefore are already properly exempted), or special uses that are
currently authorized on NFS lands. The Department points out that it is
inappropriate to exempt these types of uses, as they generate the same
administrative costs to the agency as other uses. Applicants and
holders who benefit from having the agency process their applications
or monitor their authorizations should have to pay the costs of those
government services. Therefore, the Department has not changed the
provisions in the final rule for charging cost recovery fees for these
uses.
However, the Department has revised Sec. 251.58(b)(2) to clarify
that the cost recovery provisions also apply to agency actions to amend
a special use authorization, not just to proposals submitted by an
applicant or holder to amend a special use authorization.
Section 251.58(b)(3) of the final rule clarifies that the cost
recovery provisions apply to agency actions to issue a special use
authorization, such as situations where an authorization does not
specifically require submission of an application to request
continuation of the authorized use upon termination of the
authorization, as is the case with recreation residence permits. In
addition, Sec. 251.58(b)(3) of the final rule provides that cost
recovery fees apply to applications for issuance of a new special use
authorization after termination of an existing special use
authorization. Section 251.58(b)(3) gives examples of events triggering
termination, including expiration, a change in ownership or control of
the authorized facilities, or a change in ownership or control of the
holder of the authorization. The final rule adds the example of
termination due to a change in ownership or control of the holder of
the authorization.
The Department concurs that applications and authorizations that
take very little time to process or monitor, that is, 1 hour or less,
should not be charged a processing or monitoring fee. The Department
has revised the final rule at Sec. 251.58(c)(2) and (d)(2) to provide,
in concert with BLM, that an application or authorization taking 1 hour
or less to process or monitor is not subject to a cost recovery fee.
Section 251.58(c) Processing fee requirements. This section
describes those agency actions that would require applicants to pay
processing fees. It sets forth 6 processing fee categories; describes
how processing fees are handled when multiple related applications are
submitted, such as when the agency solicits applications for special
uses, and when unsolicited proposals are submitted and competitive
interest exists; and describes how refunds of processing fees are
handled.
Comment. This section generated many comments that generally
focused on the need to clarify what agency costs are properly included
in cost recovery. Many respondents had concerns about what constitutes
``reasonable costs'' as set forth in the fee schedule for category B-IV
(> 50 hours) for processing and monitoring fees in the proposed rule.
Several respondents asked for clarification concerning those situations
where applicants respond to a Forest Service prospectus and stated that
cost recovery should not apply in those situations. Several respondents
stated that applicants should not be required to pay processing fees
for environmental analysis, since it is the Federal Government's
responsibility, or for environmental documentation beyond the scope of
the application. Some respondents suggested that the agency might
overcharge or overestimate processing costs and inappropriately use
those funds to complete unfunded field studies or assessments not
pertinent to the applicant's request but important to the agency. In a
related concern, respondents stated that processing fees should be
reduced when an applicant provides data or studies relevant to the
environmental documentation needed to process an application.
Respondents holding authorizations in the National Forests in
Alaska concluded that all processing activities in Alaska would fall
into proposed categories B-IV (> 50 hours) and C (master agreement),
which the respondents believed would increase already burdensome
paperwork requirements. Some respondents asked that bills for payment
of cost recovery fees be due and payable in 60 days, rather than the 30
days set forth in the proposed regulation. Several respondents asked
that processing fees for proposed categories A (minimal impact) through
B-III (> 36 and <= 50 hours) be refunded to the applicant when payments
exceed the agency's costs, as they would be in proposed categories B-IV
and C, and that processing fees for proposed category B-IV (>= 50
hours) applications remaining after withdrawal of an application be
refunded to the applicant.
Response. The Department recognizes respondents' concerns about the
scope of environmental documentation
[[Page 8904]]
required and what would be considered reasonable costs. As stated
earlier, some level of environmental analysis pursuant to NEPA must be
conducted with respect to the environmental effects of a proposed use
and occupancy. This analysis considers the use proposed by the
applicant, and includes a cumulative effects analysis with respect to
other activities related to the proposed use. There is also a need,
however, to place limits on how far the environmental analysis should
go, and to identify where the responsibility of the applicant ends and
the public benefit begins. Therefore, the Department has incorporated
in the final rule direction that the processing fee for an application
be based only on costs necessary for processing that application.
Some examples of where the responsibility of the applicant ends and
the public benefit begins include studies to determine the capacity of
the land and its resources to accommodate a type of use in an area,
analysis and development of a habitat management plan, and utility
corridor studies. In general, cost recovery fees should not be charged
for studies that relate to management programs that affect more than
one applicant and that could involve amendment of a land management
plan.
The Department believes that clearer direction on this point is
needed and has modified Sec. 251.58(c)(1) to state that the processing
fee for an application will be based only on costs necessary for
processing an application and will not include costs for studies for
programmatic planning or analysis or other agency management
objectives, unless they are necessary for the application being
processed. The processing fee for an application shall be based on
costs for studies relating to programmatic planning or analysis or
other agency management objectives to the extent these costs are
necessary for the application to be processed. ``Necessary for'' means
that but for the application, the costs would not have been incurred
and that the costs cover only those activities without which the
application cannot be processed.
In the first sentence of the provision governing the basis for
processing fees, the Department is changing the phrase ``the amount of
time that the Forest Service spends'' to ``the costs that the Forest
Service incurs'' because in major category cases the basis for the
processing fee may in some instances be based on costs other than
agency time. In the eighth sentence, governing processing work
conducted by the applicant or a third party, the Department is adding
the phrase ``contracted by the applicant'' to distinguish between costs
incurred by the applicant and costs incurred by the Forest Service.
In addition, the Department has reorganized and revised Sec.
251.58(c)(1) to clarify how processing fees are determined and to
provide for reconciliation of category 5 and category 6 processing
fees.
For category 6 applications submitted under authorities other than
the MLA, the Department has clarified in Sec. 251.58(c)(1)(ii)(A) that
the Forest Service will determine whether actual costs should be
reduced based upon an analysis submitted by the applicant or holder of
the factors relevant to determining the reasonableness of the costs,
and will notify the applicant or holder in writing of this
determination.
For category 5 applications, the Department has clarified in Sec.
251.58(c)(2)(v), consistent with BLM, that in signing a master
agreement for a major category application submitted under authorities
other than the MLA, an applicant waives the right to request a
reduction of the processing fee based upon the factors relevant to
determining the reasonableness of the costs.
The Department disagrees with the comment that cost recovery fees
should not be charged in the case of agency-driven solicitations.
Solicitations come in many forms, from simple campground concession
offerings to complex offerings that require two levels of environmental
analysis spread over several years of implementation. The Department
accepts responsibility for the programmatic level of environmental
analysis to determine whether the concept of the agency offering is
environmentally acceptable. Under the proposed rule at Sec.
251.58(c)(3)(ii), when the agency solicited applications for the use
and occupancy of NFS lands, the agency would be responsible for the
costs of environmental analyses conducted prior to issuance of the
prospectus. The selected applicant would pay a processing fee that
would cover only the agency's costs to process the selected applicant's
proposal, including any subsequent project-level environmental analysis
and documentation.
To address this comment and to distinguish solicitations driven by
the agency from solicitations driven by multiple applications for a
limited number of authorizations, Sec. 251.58(c)(3) in the final rule
has been retitled ``multiple applications other than those covered by
master agreements (category 5).'' Paragraphs (i) through (iii) under
Sec. 251.58(c)(3) also have been added to the final rule to address
different cases of multiple related applications.
Paragraph (i) deals with multiple unsolicited applications where
there is no competitive interest. Processing costs that are incurred in
processing more than one of these applications, such as the cost of
environmental analysis or printing an environmental impact statement
that relates to all of the applications, must be paid by each applicant
in equal shares or on a prorated basis, as deemed appropriate by the
authorized officer.
Paragraph (ii) covers unsolicited proposals where competitive
interest exists. Under this scenario, a prospectus will be issued, and
all proposals accepted pursuant to the solicitation will be processed
as applications. The applicants will be responsible for the costs of
environmental analyses that are necessary for their applications and
that are conducted prior to issuance of the prospectus. Processing fees
for these cases will be determined pursuant to the procedures for
establishing a category 6 (> 50 hours) processing fee and will include
such costs as those incurred in printing and mailing the prospectus;
having parties other than the Forest Service review and evaluate
applications; establishing a case file; recording data; conducting
financial reviews; and, for selected applicants, any additional
environmental analysis required in connection with their applications.
The processing fee determined by the authorized officer will be paid in
equal shares or on a prorated basis, as deemed appropriate by the
authorized officer, by all parties who submitted proposals that were
processed as applications pursuant to the solicitation.
Paragraph (iii) covers agency-solicited applications. The agency
will be responsible for the cost of environmental analyses conducted
prior to issuance of the prospectus. All proposals accepted pursuant to
that solicitation will be processed as applications. Processing fees
for these cases will be determined pursuant to the procedures for
establishing a category 6 processing fee and will include such costs as
those incurred in printing and mailing the prospectus; having parties
other than the Forest Service review and evaluate applications;
establishing a case file; recording data; conducting financial reviews;
and, for selected applicants, any additional environmental analysis
required in connection with their applications. Processing fees will be
paid in equal or prorated shares, as deemed appropriate by the
authorized officer, by all parties who submitted proposals that were
[[Page 8905]]
processed as applications pursuant to the solicitation.
Provisions have been added in the final rule to address
applications for recreation special uses that individually are exempt
from cost recovery because the estimated time to process each of them
is 50 hours or less but, when combined with other similar applications
for a single project or type of use, the cumulative processing time
exceeds 50 hours. In those situations, a cost recovery fee will be
assessed, but the costs associated with processing all applications for
a single project or type of use will be spread evenly among all the
applicants.
The Department does not agree with respondents from Alaska who
stated that the proposed processing fees would perpetuate burdensome
paperwork requirements. The process for determining cost recovery fees
is not overly complex and is based upon information that the applicant
is already required to submit to the Forest Service for purposes of
determining the appropriateness of the request. The Department
acknowledges that costs for all goods and services are generally more
expensive in Alaska. However, the Department reiterates that the minor
category fee rates are reasonable costs and that all applicants may
elevate disputes in processing fee determinations to the next higher
administrative level within the Forest Service.
The Department has added a statement in Sec. 251.58(c)(4)(i) that
a processing fee will be assessed when the authorized officer is
prepared to process the application. This provision clarifies that a
processing fee will not be assessed until the Forest Service is ready
to process the application.
The provisions in Sec. 251.58(c)(4)(ii) of the proposed rule
dealing with revision of processing fees has been modified in the final
rule to state that minor category processing fees will not be
reclassified into a higher level minor category once the processing fee
category has been determined.
The Department also considered the request by respondents that the
billing period during which cost recovery fees are due and payable be
expanded from 30 to 60 days. Thirty days is the standard billing period
used in the special uses program for other fees (such as land use
fees). The Department does not believe that there are any compelling
reasons for changing the billing period for cost recovery fees.
Therefore, no changes have been made in the final rule to the billing
period in which cost recovery fees are due and payable.
The Department does not agree with respondents who requested that
unspent processing fees for categories A through B-III in the proposed
rule be refunded to the applicant. The fee rates for the minor
processing categories are designed to provide efficiencies in the
assessment and collection of cost recovery fees, one aspect of which is
avoiding a separate accounting for every application that falls into
these categories. Separate accounting would be necessary to track case-
by-case costs and provide for refunds, and would be burdensome and
expensive.
The Department has added provisions to Sec. 251.58(c)(5)(ii) and
(c)(6)(ii) of the final rule to provide for underpayment and
overpayment of category 5 processing fees. Under Sec.
251.58(c)(5)(ii), when estimated processing costs are lower than the
final processing costs for applications covered by a master agreement,
the applicant will pay the difference between the estimated and final
processing costs. Under Sec. 251.58(c)(6)(ii), if payment of the
processing fee exceeds the agency's final processing costs the
applications covered by a master agreement, the agency either will
refund the excess payment to the applicant or, at the applicant's
request, will credit it towards monitoring fees due.
The Department has clarified provisions in Sec. 251.58(c)(5)(iii)
and (c)(6)(iii) governing underpayment and overpayment of category 6
processing fees to provide that reconciliation of those fees will not
be based upon full reasonable costs for applications submitted under
authorities other than the MLA when the applicant has waived payment of
reasonable costs.
Section 251.58(d) Monitoring fee requirements. This section of the
rule describes those agency actions that would require payment of
monitoring fees and sets forth the fee categories.
Comment. Many respondents commented on this section of the proposed
rule. They indicated significant concern with and misunderstanding of
this provision. Most respondents were concerned about the activities
that would be monitored and stated that monitoring should not be
conducted annually or for ongoing operations. Several respondents noted
that BLM has exempted outfitting and guiding authorizations from
monitoring fees and suggested that the Forest Service do the same. Some
respondents recommended that all unspent monitoring fees be refunded to
the holder.
Response. Most of the issues respondents identified have been
addressed in the revision to the definition for monitoring, which was
discussed previously in the response to comments on Sec. 251.51,
``Definitions.'' Section 251.58(d) of the final rule has been revised
to narrow the basis for monitoring fees. In addition, the Department
has reorganized and revised Sec. 251.58(d)(1) to clarify how
monitoring fees are determined and to provide for reconciliation of
category 5 and category 6 monitoring fees.
For category 6 authorizations issued under authorities other than
the MLA, the Department has clarified in Sec. 251.58(d)(1)(ii)(A) that
the Forest Service will determine whether actual costs should be
reduced based upon an analysis submitted by the holder of the factors
relevant to determining the reasonableness of the costs, and will
notify the holder in writing of this determination.
For category 5 authorizations, the Department has clarified in
Sec. 251.58(d)(2)(v), consistent with BLM, that in signing a master
agreement for a major category authorization issued under authorities
other than the MLA, a holder waives the right to request a reduction of
the monitoring fee based upon the factors relevant to determining the
reasonableness of the costs.
The Department has added provisions in Sec. 251.58(d)(3)(ii) and
(d)(4)(ii) of the final rule to provide for underpayment and
overpayment of category 5 monitoring fees. Under Sec.
251.58(d)(3)(ii), when estimated monitoring costs are lower than the
final monitoring costs for authorizations covered by a master
agreement, the holder will pay the difference between the estimated and
final monitoring costs. Under Sec. 251.58(d)(4)(ii), if payment of the
monitoring fee exceeds the agency's final monitoring costs for the
authorizations covered by a master agreement, the agency either will
adjust the next periodic payment to reflect the overpayment or will
refund the excess payment to the holder.
The Department has clarified provisions in Sec. 251.58(d)(3)(iii)
and (d)(4)(iii) governing underpayment and overpayment of category 6
monitoring fees to provide that reconciliation of those fees will not
be based upon full reasonable costs for authorizations issued under
authorities other than the MLA when the holder has waived payment of
reasonable costs.
Several other revisions have been made to this section of the final
rule to ensure correct application of the monitoring fee categories; to
clarify the descriptions of the monitoring fee categories; and to make
the categories for processing and monitoring fees consistent.
[[Page 8906]]
Section 251.58(e) Applicant and holder disputes concerning
processing or monitoring fee assessments; requests for changes in fee
categories or estimated fee amounts. This section of the rule describes
the actions the agency will take when an applicant or holder disagrees
with a processing or monitoring fee category or estimated fee amount
assigned by an authorized officer.
Comment. Several respondents took issue with the provisions at
paragraphs (e)(2)(i) and (e)(3) that would suspend processing an
application or suspend an authorization while a dispute is being
resolved. Many respondents expressed concern that the authorized
officer who assigned the fee category or estimated fee amount would be
the same official who would review the dispute. Some respondents
suggested that an entity other than the Forest Service should review
disputed cost recovery fee determinations.
Response. The Department concurs with these respondents' concerns.
The regulation should allow the applicant or holder to dispute the
determined fee category or estimated costs without suspension of the
application or authorization and should provide for a Forest Service
officer other than the one who determined the fee category or estimated
costs to review cost recovery disputes. However, the Department does
not believe it is appropriate for cost recovery disputes to be reviewed
outside the agency. The final rule at Sec. 251.58(e)(1)-(4) has been
revised to provide the applicant or holder with one level of review.
Before a disputed fee is due, the applicant or holder may submit a
written request for substitution of an alternative fee category or
alternative estimated costs to the immediate supervisor of the
authorized officer who determined the fee category or estimated costs.
The applicant or holder must provide documentation that supports the
alternative fee category or estimated costs. The supervisory officer
must make a decision within 30 calendar days of receipt of the written
request disputing the fee category or estimated costs. The dispute will
be decided in favor of the applicant or holder if the supervisory
officer does not respond to the written request within 30 days of
receipt (paragraph (e)(4)).
Paragraphs (e)(2)(i)-(ii) of the final rule have been revised to
remove the reference to suspension and to set forth new provisions
describing agency action when the applicant or holder (1) has paid the
disputed processing fee or (2) has failed or refuses to pay the
disputed processing fee. In the former case, the authorized officer
will not interrupt the processing while the dispute is being reviewed
and the supervisory officer is making a decision, unless the applicant
requests it. In the latter case, the authorized officer will suspend
processing pending the supervisory officer's consideration of the
dispute and determination of an appropriate fee. Paragraph (e)(3)
dealing with monitoring fee disputes has been revised to remove the
reference to suspension and to make revisions similar to those
described above for processing fees (paragraphs (e)(2)(i)-(ii)).
Section 251.58(f) Waivers of processing and monitoring fees. This
section of the rule provides for applicant or holder requests for fee
waivers and describes criteria for the authorized officer to use in
granting full or partial waivers of processing and monitoring fees.
Comment. This section prompted more comments than any other section
of the proposed rule. Most respondents sought to clarify or expand the
criteria for granting fee waivers, particularly to benefit applicants
for or holders of authorizations for nonprofit activities. However,
other respondents insisted that nonprofit status alone should not be
the criterion for granting a fee waiver. A principal concern of these
respondents was the application of the public benefit criterion in
paragraph (f)(1)(vi)(B). Respondents asked that it be broadened to
allow waiver of processing fees for environmental analysis considered
beyond the scope of the proposed activity. Respondents also were
concerned that the authorized officer would have sole authority to
grant fee waivers. State and local governmental entities recommended
that the fee waiver criteria be clarified to ensure that activities
they conduct on NFS lands qualify for a fee waiver.
Response. The nature of the responses indicates that the public is
not familiar with the distinction between the terms ``waiver'' and
``exemption.'' Although their effect may be the same, there is a
difference between them.
A fee waiver may occur after the authorized officer has determined
the appropriate fee category or estimated costs for a processing or
monitoring activity. When one or more of the fee waiver criteria are
met, the authorized officer may waive all or part of the cost recovery
fee.
A fee exemption occurs when the authorized officer determines that
the application or authorization is not subject to processing or
monitoring fees based on law or regulation. In those situations, the
authorized officer has no discretion in exempting the application or
authorization from a cost recovery fee.
The Department has declined to broaden the criteria for fee waivers
because the agency's processing of a special use application or
monitoring of a special use authorization provides a specific benefit
or service to the applicant or holder beyond that provided to the
general public. The Department also believes that it is not appropriate
to identify specific special use activities that are eligible for fee
waiver, and thus has not done so in the final rule.
Section 251.58(f)(vi) of the proposed rule would authorize waiver
of a processing fee for nonprofit entities when ``(A) [t]he studies
undertaken in connection with processing their application have a
public benefit or (B) [t]he proposed facility or project will provide a
free service to the public or a program of the Secretary of
Agriculture.'' The Department is removing Sec. 251.58(f)(vi)(A),
redesignating Sec. 251.58(f)(vi)(B) as Sec. 251.58(f)(vi), and
clarifying its text. The Department believes that the waiver provision
in proposed Sec. 251.58(f)(vi)(A) is unnecessary because Sec.
251.58(c)(1) of the final rule states that processing fees shall not
include costs for studies for programmatic planning or analysis or
other agency management objectives, unless they are necessary for the
application being processed. Thus, under the final rule, processing
fees for all applicants, not just nonprofit applicants, will not
include studies for programmatic planning or analysis or other agency
management objectives that are not necessary for an application. When
these studies are necessary for an application, they are providing a
specific benefit or service to the applicant beyond that provided to
the general public and therefore may be included in a cost recovery
fee. Section 251.58(c)(1) of the final rule addresses the comment that
the nonprofit status of an applicant alone should not qualify an entity
for a fee waiver.
The Department has given careful consideration to the
recommendations by State and local governmental agencies and other
Federal agencies regarding full fee waivers. The Department recognizes
that the criteria in proposed paragraph (f)(1)(i) describe only those
situations where reciprocity between the governmental entity and the
Forest Service exists. In situations where the agency has no reciprocal
business dealings or relationships with the Federal, State, or local
governmental agency, there is no opportunity for that entity to
demonstrate that it would
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waive similar fees that it might assess the Forest Service in such
dealings. Thus, the final rule has been revised at paragraph (f)(1)(i)
to state that the Forest Service may waive a processing or monitoring
fee for a local, State, or Federal governmental entity that does not or
would not charge processing or monitoring fees for comparable services
the entity provides or would provide to the Forest Service. The
comparability of fees charged will not be based on the dollar amount,
but rather on the type of services for which the fees are charged.
Section 251.58(g) Exemptions from processing or monitoring fees.
This section of the rule sets forth direction regarding those uses and
activities that are exempted from paying processing and monitoring
fees.
Comment. This section of the proposed rule prompted many comments.
Nearly all respondents who commented advocated that a particular use,
activity, or group be exempted, such as recreation residences,
houseboats, scientific studies, private clubs, and traditional Native
American groups. Several respondents stated that rights-of-way granted
under the Alaska National Interest Lands Conservation Act (ANILCA)
across NFS lands to reach non-Federal land should be exempt from cost
recovery fees because section 1323(a) of ANILCA gives those who own
non-Federal land adjoining Federal land a right of access across the
Federal land. In addition, many respondents claimed that authorized
water storage facilities on NFS lands should be exempted from cost
recovery fees.
Response. As outlined in the discussion of Sec. 251.58(f),
exemptions will be granted only as provided by law or regulation.
Relief from cost recovery fees for any special use that is not
specifically exempted will be considered under the criteria for fee
waivers set forth in Sec. 251.58(f).
The summary of the proposed rule stated that cost recovery would
not apply where processing and monitoring fees were being collected by
another Federal agency on behalf of the Forest Service. The Department
has removed this provision from the summary of the final rule because
it relates to collection, rather than assessment, of cost recovery
fees. The Forest Service has cooperative agreements with BLM for
administration of some special uses. The Forest Service's final cost
recovery rule will apply to these special uses, but the cost recovery
fees in some instances may be collected by BLM and remitted to the
Forest Service.
In response to concerns raised by the public, and to enhance
interagency consistency between the Forest Service and BLM, the
Department has exempted from cost recovery all applications and
authorizations for recreation special uses that require 50 hours or
less to process or monitor. Applications and authorizations for
recreation special uses requiring more than 50 hours to process or
monitor are subject to the cost recovery provisions of the final rule.
The Department has considered the respondents' recommendation that
rights-of-way granted under section 1323(a) of ANILCA be exempted from
processing and monitoring fees. Section 1323(a) of ANILCA provides that
land owners have a right of access to their property across NFS lands
for the reasonable use and enjoyment of the property, subject to such
terms and conditions as the Forest Service may prescribe. The
Department believes that the cost recovery regulations are a reasonable
term and condition applicable to applicants for and holders of
authorizations for rights-of-way granted under section 1323(a) of
ANILCA. Accordingly, the Department has not modified the final rule to
exempt rights-of-way granted under section 1323(a) of ANILCA from cost
recovery.
The Department disagrees with those who stated that authorized
water storage facilities on NFS lands are specifically exempted from
cost recovery fees. There are currently no provisions in law that
specifically exempt this type of use from cost recovery. Therefore, the
final rule will not provide for a specific exemption for water storage
facilities. A waiver for this use may still be considered under the
provisions set forth in Sec. 251.58(f) of the final rule.
In the fall of 1999, the Forest Service commissioned a national
task force to conduct a broad review of the agency's programs and
policies involving Tribal governments and to recommend a unified policy
regarding the need for a special use authorization for Tribal use and
occupancy of NFS lands for traditional or cultural purposes. Until the
agency adopts such a policy, it would be premature to exempt these uses
from cost recovery fees. Moreover, once such a policy is adopted,
whether a special use authorization is required, and if so, the nature
of the use, will determine whether cost recovery fees are required in
this context.
The Department is modifying the exemption relating to closure
orders by stating that it applies to ``a noncommercial activity,''
rather than ``activities,'' that are exempt from a closure order to
make it clear that the exemption does not apply to commercial
activities that are exempt from a closure order.
The Department is adding an exemption for applications and
authorizations for water systems authorized by section 501(c) of FLPMA
(43 U.S.C. 1761(c)). Section 501(c) of FLPMA precludes cost recovery
for these applications and authorizations. In addition, the Department
is adding an exemption for a use or activity conducted by a Federal
agency that is not authorized under Title V of FLPMA (43 U.S.C. 1761-
1771); the MLA (30 U.S.C. 185); the National Historic Preservation Act
(NHPA), 16 U.S.C. 470h-2; or the statute governing authorizations for
commercial filming (16 U.S.C. 460l-6d). The Forest Service does not
have the authority to require cost recovery from Federal agencies that
apply for and hold special use authorizations issued under statutes
other than FLPMA, the MLA, the NHPA, and the commercial filming
statute.
Section 251.58(h) Appeal of decisions. This section of the rule
provides that a decision by the authorized officer to assess a
processing or monitoring fee and the determination of a fee category or
estimated costs are not subject to administrative appeal.
Comment. This section received many comments, all stating that
there should be an appeal process. Without such a process, the
respondents believed that they were denied due process. Some
respondents stated that this regulation should provide an applicant or
holder the opportunity to appeal to the next higher agency line officer
or to a board or individual who was not involved in the initial fee
determination. Respondents believed that agency action on an
application or authorization should not be suspended while an appeal is
being decided.
Response. The Department believes that the determination of cost
recovery fees should be kept separate from the review process required
by the Department's administrative appeal regulations. To make that
process available to applicants and holders would reduce the value of
cost recovery to special use applicants, authorization holders, and the
agency, as it would surely lead to delays in processing applications
and monitoring authorizations while the authorized officer's attention
is diverted to responding to appeals.
The Department, however, recognizes the importance of providing
administrative recourse to those who dispute the authorized officer's
determination of a cost recovery fee category or estimated costs. Thus,
the Department has revised Sec. 251.58(e) in
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the final rule to allow an applicant or holder to submit a written
request before the disputed fee is due for substitution of an
alternative fee category or alternative estimated costs to the
authorized officer's immediate supervisor. The applicant or holder must
provide documentation that supports the alternative fee category or
estimated costs. Further, unless requested by the applicant or holder,
or unless the applicant or holder fails to pay the full disputed fee,
the revised dispute resolution process will not result in the agency
suspending action on the application or authorization while the dispute
is being addressed. The authorized officer's immediate supervisor must
render a decision on a disputed processing or monitoring fee within 30
calendar days of receipt of the written request from the applicant or
holder. The dispute will be decided in favor of the applicant or holder
if the immediate supervisor does not respond to the written request
within 30 days of receipt. The Department believes that these revisions
are sufficient to allay respondents' concerns regarding review of cost
recovery determinations.
Section 251.58(i) Processing and monitoring fee schedules. This
section provides that the agency will place its processing and
monitoring fee schedules in its directives system, and will review the
rates in the schedules 5 years after the effective date of the final
rule.
Comment. The only comment received on this section was the
suggestion that the fee schedules appear in the Code of Federal
Regulations (CFR), rather than in the agency's directive system.
Response. The Department disagrees with the suggestion that the CFR
is the appropriate place to post and update cost recovery fee
schedules. The fee schedules will be updated annually using the IPD-GDP
index. It would be cumbersome to go through the regulatory process
annually to amend the CFR to revise the cost recovery rates based on
changes in the IPD-GDP. It is appropriate to post cost recovery fee
schedules in the agency's directive system. Currently, all other Forest
Service fee schedules are found in the directive system. Directives are
easily amended, which is particularly important when fee schedules need
to be updated annually. Additionally, these directives are available at
all administrative levels within the agency and are accessible to the
public through the agency's World Wide Web directive home page (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fs.fed.us/im/directives
). Therefore, the provision in the proposed
rule for posting cost recovery fee schedules in the Forest Service's
directives system remains unchanged in the final rule.
The Forest Service, in discussions with BLM, has determined that it
should not necessarily wait 5 years to review its cost recovery fee
schedules. The agency believes that it should have the latitude to
evaluate consistency between the fee schedules and its actual costs of
doing business at any point after adoption of the final rule. The
Department concurs that the agency should review and, if necessary,
revise the minor category fee rates to make them commensurate with the
agency's cost to process applications and monitor authorizations. The
Department affirms, however, that any evaluation of fee schedules will
be based on case-specific samplings of costs that the agency will
collect following implementation of the final rule. Therefore, Sec.
251.58(i)(2) of the final rule has been revised to state that the
agency will review the cost recovery rates within 5 years of the
effective date of the final rule.
3. Final Processing and Monitoring Fee Schedules
The following schedules contain the fee categories and rates for
cost recovery that are adopted by this final rule. As displayed, all
minor category fee rates have been indexed to reflect CY 2005 rates
using the cumulative rate of change from the CY 2003 second quarter to
the CY 2004 second quarter in the IPD-GDP index, as discussed earlier
in section 2 under ``Response to General Comments'' and are consistent
with the rates adopted by BLM in its final regulations for its right-
of-way program (70 FR 20969, Apr. 22, 2005). The Forest Service wi