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Proposed Rule2023-04180

Land Uses; Special Uses; Cost Recovery, Strict Liability Limit, and Insurance

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Published

March 9, 2023

Issuing agencies

Agriculture DepartmentForest Service

Abstract

The Forest Service (Forest Service or Agency), United States Department of Agriculture, is proposing to amend its special use regulations to update the processing and monitoring fee schedules based on current Agency costs; to provide for recovery of costs associated with processing special use proposals, as well as applications; and to remove the exemption for commercial recreation special use applications and authorizations that involve 50 hours or less to process or monitor. In addition, the Forest Service is proposing to amend its special use regulations to increase the strict liability limit consistent with the strict liability limit established by the United States Department of the Interior, Bureau of Land Management, and to expressly provide for requiring holders of a special use authorization to obtain insurance, as needed.

Full Text

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<title>Federal Register, Volume 88 Issue 46 (Thursday, March 9, 2023)</title>
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[Federal Register Volume 88, Number 46 (Thursday, March 9, 2023)]
[Proposed Rules]
[Pages 14517-14529]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-04180]

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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 251

RIN 0596-AD35

Land Uses; Special Uses; Cost Recovery, Strict Liability Limit,
and Insurance

AGENCY: Forest Service, Agriculture (USDA).

ACTION: Proposed rule; request for public comment.

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SUMMARY: The Forest Service (Forest Service or Agency), United States
Department of Agriculture, is proposing to amend its special use
regulations to update the processing and monitoring fee schedules based
on current Agency costs; to provide for recovery of costs associated
with processing special use proposals, as well as applications; and to
remove the exemption for commercial recreation special use applications
and authorizations that involve 50 hours or less to process or monitor.
In addition, the Forest Service is proposing to amend its special use
regulations to increase the strict liability limit consistent with the
strict liability limit established by the United States Department of
the Interior, Bureau of Land Management, and to expressly provide for
requiring holders of a special use authorization to obtain insurance,
as needed.

DATES: Comments on this proposed rule must be received in writing by
May 8, 2023.

ADDRESSES: Comments, identified by RIN 0596-AD35, should be sent via
one of the following methods:
1. Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow
the instructions for sending comments;
2. Email: <a href="/cdn-cgi/l/email-protection#d1829cff9782ff869e8e9db0bfb582a5b0b7b791a4a2b5b0ffb6bea7"><span class="__cf_email__" data-cfemail="a9fae487effa87fee6f6e5c8c7cdfaddc8cfcfe9dcdacdc887cec6df">[email&#160;protected]</span></a>;
3. Mail: Director, Lands and Realty Management Staff, 201 14th
Street SW, Washington, DC 20250-1124; or
4. Hand Delivery/Courier: Director, Lands and Realty Management
Staff, 1st Floor Southeast, 201 14th Street SW, Washington, DC 20250-
1124.
Comments should be confined to issues pertinent to the proposed
rule, should explain the reasons for any recommended changes, and
should reference the specific section and wording being addressed,
where possible. All comments, including names and addresses when
provided, will be placed in the record and will be available for public
inspection and copying. The public may inspect comments received on
this proposed rule at the Office of the Director, Lands and Realty
Management Staff, 201 14th Street SW, 1st Floor Southeast, Sidney R.
Yates Federal Building, Washington, DC 20024, on business days between
8:30 a.m. and 4 p.m. Visitors are encouraged to call ahead at 202-205-
1680 to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT: Reginal Woodruff, Acting Assistant
Director, Washington Office Lands and Realty Management Staff, 202-644-
5974 or <a href="/cdn-cgi/l/email-protection#354750525c5b54591b425a5a514740535375404651541b525a43"><span class="__cf_email__" data-cfemail="225047454b4c434e0c554d4d465057444462575146430c454d54">[email&#160;protected]</span></a>. Individuals who use
telecommunication devices for the deaf and hard of hearing (TDD) may
call the Federal Relay Service at 800-877-8339 24 hours a day, every
day of the year, including holidays.

SUPPLEMENTARY INFORMATION:

1. Background and Need

The Forest Service administers approximately 74,000 special use
authorizations for use and occupancy of National Forest System (NFS)
lands for a wide variety of purposes, including powerline facilities,
communications facilities, outfitting and guiding, campground
concessions, and four-season resorts. The activities and facilities
authorized by special use authorizations contribute significantly to
the national economy and the social

[[Page 14518]]

and economic foundation of rural communities and towns.
To obtain a special use authorization for a new use or activity, a
proponent must submit a special use proposal which meets two sets of
screening criteria outlined in the Agency's existing special uses
regulations at 36 CFR 251.54(e)(1) and (5). If the proposal passes the
screening, the proponent may submit a special use application for
evaluation by the Forest Service. Per existing 36 CFR 251.54(e)(6),
environmental analysis and documentation are required for special use
applications, but not for special use proposals. Under the Forest
Service's existing special use regulations at 36 CFR 251.58(c), the
Agency may charge a processing fee for evaluating applications, but not
for screening proposals. Under existing 36 CFR 251.58(d), the Agency
may charge a monitoring fee for ensuring compliance with the terms of a
special use authorization. Per existing 36 CFR 251.58(g)(4), minor
category recreation special uses (requiring 50 hours or less to process
or monitor) are exempt from cost recovery fees.
Ensuring that the Forest Service's Special Uses Program is
delivered efficiently and effectively is critical to its ongoing
success. The Forest Service's special uses cost recovery fees, which
are expressly authorized by several Federal statutes and existing
Forest Service regulations and directives, are a critical tool for
achieving those goals because they cover the Agency's costs to process
special use applications and monitor compliance with special use
authorizations. In addition, the Agency has the statutory authority to
retain and spend the cost recovery fees it collects to cover those
costs.
The Forest Service based its cost recovery regulations on the
United States Department of the Interior, Bureau of Land Management
(BLM)'s preexisting regulations and adopted the BLM's cost recovery fee
schedules, since both agencies use title V of the Federal Land Policy
and Management Act (FLPMA) and section 28(l) of the Mineral Leasing Act
of 1920 as a cost recovery authority and have comparable land use
programs. Both agencies charge flat fees from processing and monitoring
fee schedules for special use applications and authorizations that take
50 hours or less to process or monitor. The rates in the cost recovery
fee schedules are based on the hourly cost of a Forest Service or BLM
employee to process an application or monitor an authorization and are
indexed annually based on the Implicit Price Deflator-Gross Domestic
Product.
The Forest Service's existing cost recovery regulations at 36 CFR
251.58(i)(2) state that within 5 years of their effective date of March
23, 2006, the Agency must review the rates in the Agency's cost
recovery fee schedules to determine whether they are commensurate with
the actual costs incurred by the Agency in processing special use
applications and monitoring compliance with special use authorizations
and to assess consistency with the BLM's cost recovery fee schedules.
However, the rates in the Forest Service's cost recovery fee schedules
have not been updated other than for inflation since the Forest
Service's cost recovery rule was promulgated in 2006, and the rates in
the schedules no longer reflect current Agency costs.
In addition, current Forest Service cost recovery regulations do
not provide for recovery of Agency processing costs for a special use
application that are incurred before it is accepted, including but not
limited to costs incurred in meeting with the proponent (36 CFR
251.54(a)) and screening the proponent's proposal (36 CFR 251.54(e)(1)
and (5)). These costs are incurred by the Agency in performing work
that is a prerequisite to submission of an application, and they are
therefore properly covered by processing fees charged by the Agency.
The connectivity between special use proposals and applications is
further demonstrated by the fact that the same form, SF-299, is used
for both special use proposals and applications. Processing costs
incurred for a special use application before it is submitted can be
significant, especially for complex infrastructure projects such as
large-scale powerline facilities or oil and gas pipelines.
Although existing Federal statutes authorize cost recovery fees for
commercial recreation special use applications and authorizations that
require 50 hours or less to process or monitor, these applications and
authorizations are exempt from processing and monitoring fees under
current Forest Service regulations. The Agency incurs significant costs
in processing and monitoring these applications and authorizations, and
non-recreation special use applications and authorizations requiring 50
hours or less to process or monitor are not exempt from cost recovery
fees. Without cost recovery fees for commercial recreation special use
applications requiring 50 hours or less to process, the processing of
some applications for these uses has been deferred. Removal of the
exemption would help the Agency collect fees to support a modernized
special uses authorization program to more efficiently processes
increasing applications triggered by the accelerated recent growth in
the outdoor recreation economy; further reduce the backlog of
applications for new uses and expired authorizations for existing uses;
and facilitate increased access to NFS lands. The updated cost recovery
fee schedules and removal of the exemption for minor category
commercial recreation special use applications would provide the Agency
with sufficient resources to ensure parity in timely processing of all
special use applications. The exemption from minor category cost
recovery fees would remain in place for proposals, applications, and
authorizations for a recreation residence for reasons explained below.
The Agency's special uses budget and staff have not kept up with the
increasing demand for use and occupancy of NFS lands. There were 168
million visits to NFS lands in 2020, an increase of 18 million visits
from 2019. All these factors affect the Agency's ability to process
special use applications and monitor compliance with special use
authorizations in a manner that meets the needs and customer service
expectations of applicants and authorization holders.
Under title V of FLPMA, both the Forest Service and the BLM have
authority to impose strict liability in tort up to a limit specified by
regulation on holders of right-of-way authorizations for high-risk
uses, such as powerline facilities, oil and gas pipelines, and dams
with a high hazard assessment classification. However, the strict
liability limit for high-risk special uses in the Forest Service's
regulations no longer aligns with the strict liability limit for right-
of-way authorizations in the BLM's regulations. In 2005, the BLM raised
the strict liability limit in its regulations from $1 million to $2
million and provided for adjustments of the increased limit based on
inflation. The BLM's strict liability limit is currently $2,884,000
(<a href="https://www.bl.gov/policy/im-2022-005">https://www.bl.gov/policy/im-2022-005</a>). The Forest Service's strict
liability limit is still $1 million. In addition, the Forest Service's
regulations do not expressly provide for requiring holders of a special
use authorization to obtain insurance, as needed.

2. Proposed Regulatory Revisions

Updates to the Rates in the Forest Service's and BLM's Cost Recovery
Fee Schedules

The Forest Service is proposing to update the rates in its cost
recovery fee

[[Page 14519]]

schedules to reflect the Agency's current costs to process applications
and monitor compliance with land use authorizations. These changes are
consistent with the Agency's existing regulations at 36 CFR
251.58(i)(2)(i). There are minor discrepancies between the rates in the
Forest Service's proposed cost recovery fee schedule and the rates in
the BLM's proposed cost recovery fee schedule, which was published for
public comment November 7th, 2022. These discrepancies will be
reconciled when the two rules are finalized. Like the Forest Service's
current fee schedules, the updated fee schedules would be maintained in
the Agency's directive system (36 CFR 200.4, 251.58(i)(1)).
The table below displays the current and proposed rates in the
processing and monitoring fee schedules for the Forest Service, which
the Forest Service has coordinated with the BLM's national linear
right-of-way program manager. To determine the proposed cost recovery
fees for categories 1 through 4 and minor cases in category 5, an
average hourly wage of $63.71 was calculated (including additions to
pay and indirect costs) for processing and monitoring activities during
fiscal year (FY) 2019. The average hourly wage of $63.71 was calculated
by:
<bullet> Dividing the annual salary for a Federal employee at
General Schedule grade 11, step 5 (the average General Schedule grade
and step for a Federal employee who works on land use applications and
authorizations), which is $70,537, by 2,087 hours per year (the divisor
on the Office of Personnel Management's website used to compute Federal
employees' hourly rates), or $33.80 per hour; and
<bullet> Multiplying $33.80 by a surcharge of 1.55 for leave (27%
of annual salary) and benefits (28% of annual salary) and by a
surcharge of 1.216 for indirect costs (21.6% of annual salary) and
rounding to the nearest dollar.
For categories 1 through 4, the average hourly wage of $63.71 was
multiplied by the midpoint of the range of hours in each category and
rounded to the nearest dollar to determine the fee in that category.
Thus, the proposed fee for category 1 is $63.71 x 4 = $255; the
proposed fee for category 2 is $63.71 x 16 = $1,019; the proposed fee
for category 3 is $63.71 x 32 = $2,039; and the proposed fee for
category 4 is $63.71 x 52 = $3,313.
Cost recovery fees in category 5 (master agreements) would continue
to vary based on the applicable category (the fee for category 1, 2, 3,
or 4 for minor cases or full costs for major cases). Cost recovery fees
in category 6 would continue to be based on full costs.
Current category 1, more than 1 hour to 8 hours, would be increased
to more than 0 hours to 8 hours to reflect costs incurred by the
agencies for less than an hour of work. In addition, current category
3, more than 24 hours to 36 hours, would be increased to more than 24
hours to 40 hours; current category 4, more than 36 hours to 50 hours,
would be increased to more than 40 hours to 64 hours; and current
category 6, more than 50 hours, would be increased to more than 64
hours. As a result, fewer cases would be subject to full cost recovery.
In addition to the request for public comment on the entire
proposed rule, the Forest Service requests specific public comment on
alternatives for mitigating impacts on small entities as a result of
the updated cost recovery fee schedules and removal of the exemption
from cost recovery fees for commercial recreation special uses.

----------------------------------------------------------------------------------------------------------------
Current cost recovery fee schedules (CY 2020) Proposed cost recovery fee schedules
----------------------------------------------------------------------------------------------------------------
Category Estimated hours Fee Category Estimated hours Midpoint Fee
----------------------------------------------------------------------------------------------------------------
1............. >1 to 8......... $130............ 1............ >0 to 8......... 4 $255.
2............. >8 to 24........ $459............ 2............ >8 to 24........ 16 $1,019.
3............. >24 to 36....... $864............ 3............ >24 to 40....... 32 $2,039.
4............. >36 to 50....... $1,239.......... 4............ >40 to 64....... N/A $3,313.
5............. varies depending varies depending 5............ varies depending ......... varies depending
on whether on whether on whether on whether
master master master master
agreement agreement agreement agreement
covers minor or covers minor or covers minor or covers minor or
major category major category major category major category
uses. uses. uses. uses.
6............. >50............. full costs...... 6............ >64............. ......... full costs.
----------------------------------------------------------------------------------------------------------------

Cost Recovery Fees for Proposals

To align the Agency's cost recovery program more closely with the
BLM's program, the Forest Service is proposing to expand the scope of
processing fees under its existing cost recovery regulations to include
costs for a special use proposal that are incurred before a special use
application is submitted, including but not limited to costs incurred
in meeting with the proponent (36 CFR 251.54(a)) and screening the
proponent's proposal (36 CFR 251.54(e)(1) and (e)(5)). To effect this
change, the Forest Service would add a reference to proposals wherever
applications are mentioned in the Agency's cost recovery regulations at
36 CFR 251.58 and would revise Sec. 251.58(c)(1)(i) to provide that
separate processing fees will be charged for processing special use
proposals and for processing special use applications.
Under the proposed processing fee schedule based on the updated
hourly Agency employee rate, special use proponents would pay $255 to
$3,313, depending on the applicable cost recovery fee category, for
special use proposals requiring 64 hours or less to process. Special
use proposals requiring more than 64 hours to process would be subject
to cost recovery fees based on full costs. Special use applicants would
pay a separate processing fee of $255 to $3,313, depending on the
applicable cost recovery fee category, for special use applications
requiring 64 hours or less to process. Special use applications
requiring more than 64 hours to process would be subject to cost
recovery fees based on full costs.

Removal of the Exemption for Minor Category Commercial Recreation
Special Use

The Forest Service is proposing to remove the exemption in the
Agency's existing cost recovery regulations at 36 CFR 251.58(g)(4) for
commercial recreation special use applications and authorizations that
require 50 hours or less to process or monitor. Under the proposed cost
recovery fee schedules, processing and monitoring fees for commercial
recreation special use proposals, applications, and authorizations
requiring 64 hours or less to process or monitor would be $255 to
$3,313, depending on the applicable cost recovery fee category.
Commercial recreation special use proposals, applications, and
authorizations requiring more than 64 hours to process,

[[Page 14520]]

or monitor would be subject to cost recovery fees based on full costs.
All applicants for special use permits, regardless of size, will
receive the same level of attention and service on a first-come, first-
served basis. Removing the exemption for minor category commercial
recreation special use applications and authorizations in the existing
rule would provide for parity by treating minor category commercial
recreation special use applications and authorizations commensurate
with minor category non-recreation special use applications and
authorizations. In practice, the existing 50-hour exemption for
recreation special use applications and authorizations results in
Agency staff prioritizing non-recreation special use applications and
authorizations, since costs incurred in connection with this work are
covered by cost recovery fees and funding for the work is more
predictable. By not implementing its cost recovery authority
consistently across different types of uses, the Agency has
inadvertently reduced its capacity to support a modernized special uses
authorization program to more efficiently processes increasing
applications triggered by the accelerated growth in the outdoor
recreation economy.
Applying cost recovery fees to minor category commercial recreation
special use proposals and applications would subject them to the
customer service standard in the Forest Service's existing cost
recovery regulations at 36 CFR 251.58(c)(7). In addition, proposals are
required only for new uses. The categorical exclusions from
documentation in an environmental assessment or environmental impact
statement in the Forest Service's regulations implementing the National
Environmental Policy Act streamline the processing of commercial
recreation special use applications for new uses and modifications of
existing uses, thereby further reducing processing fees for commercial
recreation special uses such as outfitting and guiding and recreation
events (36 CFR 220.6(d)(11) and (12)). Without cost recovery fees for
minor category commercial recreation special uses, the processing of
some applications for these uses has been deferred. Charging processing
fees for these applications would help reduce backlogs.
Under the proposed rule, proposals, applications, and
authorizations for a recreation residence requiring 64 hours or less to
process or monitor would still be exempt from processing and monitoring
fees. Charging a processing fee for minor category recreation residence
proposals and applications would be redundant because issuance of a
recreation residence special use authorization is now subject to an
administrative fee of $1,200 under the Cabin Fee Act (16 U.S.C. 6214).
Since recreation residences have been in place for many years, and
since experience in administering this type of use has shown that
continuation of the use does not cause significant environmental
impacts, a new special use authorization can typically be issued
without incurring extensive processing costs, such as for supplemental
environmental analysis. Likewise, monitoring compliance with recreation
residence special use authorizations is typically not time-intensive.

Conforming and Clarifying Revisions to the Liability Provisions in the
Forest Service's Special Use Regulations

To track the BLM's regulations, the Agency is further proposing to
raise the strict liability limit in tort for high-risk special uses in
the Forest Service's regulations at 36 CFR 251.56(d)(2) from $1 million
to the BLM's current strict liability limit of $2,884,000 and to
provide for adjustments of the increased limit based on inflation.
The Forest Service is also proposing to update and clarify the
liability provisions at 36 CFR 251.56(d). These liability provisions
were promulgated to implement title V of FLPMA, which was enacted in
1976. Since then, other statutes with different liability standards,
such as the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et seq., have been
enacted. Revisions to Sec. 251.56(d) are needed to reflect the
liability standards in those subsequent statutes. These revisions are
consistent with current liability clauses in the Agency's special use
authorization forms.
Specifically, to clarify the scope of existing Sec. 251.56(d) and
(d)(1), the Agency is proposing to add the heading ``Damages'' to
existing Sec. 251.56(d) and renumber it as Sec. 251.56(d)(1); add the
heading ``Indemnification'' in existing Sec. 251.56(d)(1) and renumber
it as Sec. 251.56(d)(2); and add the heading ``Strict liability in
tort'' to existing Sec. 251.56(d)(2) and renumber it as Sec.
251.56(d)(3). In addition, the Agency is proposing to revise the
indemnification provision in existing Sec. 251.56(d)(1) to clarify
that it applies to strict liability under environmental laws such as
CERCLA, as well as to negligence in tort, consistent with the current
liability clauses in the Agency's special use authorization forms. The
Agency is proposing to revise the strict liability provision in
existing Sec. 251.56(d)(2) to clarify that the strict liability limit
applies only to liability in tort, consistent with section 504(h)(2) of
FLMPA (43 U.S.C. 1764(h)(2)). The Agency is proposing to add a new
paragraph at Sec. 251.56(d)(4), entitled ``Other remedies,'' to
clarify that the maximum strict liability limit in tort does not apply
to environmental liability, including liability under the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601
et seq.), or any other liability that is not subject to a strict
liability limit under applicable law.
The Forest Service is also proposing to revise its regulations at
36 CFR 251.56(e) to change the heading to ``Bonding and insurance'' and
to expressly provide for requiring holders of a special use
authorization to obtain insurance, as needed.
The proposed rule would directly support USDA's strategic goals for
FY 2022 through FY 2026 by expanding opportunities for economic
development and improving the quality of life in Rural Tribal
communities (USDA Strategic Plan, Goal 5). By updating the cost
recovery fee schedules to reflect current Agency costs, expanding the
scope of processing fees to include Agency costs incurred for
applications before they are submitted, and removing the 50-hour
exemption from cost recovery fees for commercial recreation special
uses, the proposed rule would enable the Agency to respond in a more
timely manner to requests for new uses, further reduce the backlog of
expired special use authorizations, and avoid deferring action on minor
category commercial recreation special use applications and
authorizations based on limited funds.

Regulatory Certifications

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will determine whether a regulatory action is significant as
defined by E.O. 12866 and will review significant regulatory actions.
OIRA has determined that this proposed rule is significant as defined
by E.O. 12866. E.O. 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Agency has developed the proposed rule consistent with E.O. 13563.
Comments

[[Page 14521]]

are invited on all methods, assumptions, and data used for the cost-
benefit analysis completed for the proposed rule, consistent with E.O.
12866 and the invitation and directions for public comment provided in
the summary at the beginning of this document.
An estimated 30,695 special use authorizations for which an
application was accepted from FY 2015 through FY 2020 would potentially
be subject to the proposed rule. The greatest number of authorizations
were for recreation special uses, followed by industry and
transportation special uses, collectively accounting for almost 80% of
the authorizations. The most common types of authorizations were for
outfitting and guiding (use code 153) and recreation events (use code
181), while commercial filming (use code 552) and FLPMA authorizations
for road rights-of-way (use code 753) are the most common types of
special uses in the industry and transportation series, respectively.
Together, these four types of special uses account for almost two-
thirds (67%) of all authorizations that would potentially be subject to
the proposed rule. The next most common types of special uses are still
photography (use code 551) and water pipelines of less than 12 inches
in diameter (use code 915), which account for an additional 6% of the
authorizations.
A total of 22,102 entities with unique names were identified in the
Forest Service's Special Uses Data System as holders of the 30,695
authorizations for which an application was accepted from FY 2015
through FY 2020. An estimated 1,596 entities are identified as
households. Of the remaining 20,506 business, governmental, and
organizational entities that would be subject to the proposed rule per
existing authorization data, 25 out of 13,736 business entities (0.2%),
962 out of 2,603 governmental entities, and no organizational entities
are assumed to be large. All large governmental entities are associated
with state, Federal, or foreign governmental agencies. As a result, the
potential economic impacts of the proposed rule on small entities
summarized by the initial RFA analysis (see Regulatory Flexibility Act
Analysis section in this document) encompasses the vast majority of
potential economic impacts of the proposed rule on all entities;
economic impacts on large entities are expected to be negligible under
the proposed rule.
The greatest number of authorizations are estimated to be held by
businesses (62% of entities), followed by organizations (19%),
governmental entities (12%), and households (7%). A total of 8,662
unique entities, most of which were businesses (5,587 or 65%), paid
cost recovery fees under the current cost recovery rule. Most of the
entities were engaged in industry special uses (36% in the 500 series),
followed by transportation special uses (27% in the 700 series). The
number of unique entities making cost recovery fee payments increases
from 8,662 under the current rule to 22,102 under the proposed rule.
The increase in the number of entities is due to the addition of
entities with authorizations that were not subject to cost recovery
fees under current conditions but would be subject to cost recovery
fees under the proposed rule.
Annual cost recovery fees under the proposed rule are therefore
estimated to range from $3.5 million to $5.4 million (2020). After
accounting for annual cost recovery fees under baseline conditions
($780,000), increases in annual cost recovery fees under the proposed
rule are projected to be $2.7 million to $4.7 million. The overall
magnitude of this increase is a function of the large number of
authorizations that would be subject to the proposed rule (e.g., 30,695
special use authorizations for which applications were accepted between
FY 2015 and FY 2020 have been identified as being potentially subject
to the proposed rule) and relatively large increases in minor cost
recovery category fee rates of 100% to 170%, depending on the cost
recovery fee category. Each of the three drivers of change in costs
associated with the proposed rule (i.e., increases in fixed rates for
minor category cost recovery fees; charging cost recovery fees for
processing proposals; and removing the exemption from cost recovery
fees for commercial recreation special use applications and
authorizations requiring 50 hours or less to process or monitor) plays
a significant role in the estimated increases in annual cost recovery
fees collected. If the proposed processing fees for proposals were
eliminated, annual cost increases under the proposed rule might decline
by 38%. Annual cost increases might decline by a similar value of 40%
if the cost recovery fee exemption for minor category commercial
recreation special use applications and authorizations were retained.
Annual cost increases are estimated to decline by about 66% if the
existing cost recovery fee rates for minor categories were retained
(i.e., if the rates were not increased). These percentages do not sum
to 100 because the drivers of change in cost recovery fees associated
with the proposed rule are not exclusive. The present value of
increases in annual cost recovery fees under the proposed rule over a
15-year period is projected to range from $26 million to $45 million,
assuming annual cost savings remain constant over that time and a
discount rate of 7%, and $33 million to $57 million using a discount
rate of 3%. There is a small subset of applications in category 5 or 6
under baseline conditions that would be subject to processing fees for
proposals under the proposed rule and that have not been accounted for
in the quantified cost results. However, proposals associated with
applications that would be assigned to cost recovery category 5 or 6
would account for only approximately 2% to 3% of the estimated costs of
the proposed rule, a small fraction when compared to the range of
quantified costs described above that vary by as much as 74%. The
greatest number of entities would be engaged in recreation special uses
(45% in the 100 series) under the proposed rule, compared to industry
special uses under baseline conditions, due to new cost recovery fees
for minor category commercial recreation special uses.
Most, if not all, of the increases in cost recovery fees resulting
from compliance with new cost recovery fee requirements under the
proposed rule are transfer payments from the Federal Government to
authorization holders, and therefore are not analyzed as costs in the
cost-benefit analysis. Given the nature of transfer effects, absent
this rulemaking, the foregone fees would instead be paid by taxpayers
through budget appropriations from general revenue, and the savings in
cost recovery fees to industry would otherwise be used by industry.
By (i) updating the cost recovery fee schedules to reflect current
Agency costs; (ii) expanding the scope of processing fees to include
Agency costs incurred for applications before they are submitted; and
(iii) removing the 50-hour exemption from cost recovery fees for
commercial recreation special uses, the proposed rule would establish
regulatory conditions for charging cost recovery fees and generating
funds necessary to modernize the special uses program. A modernized
program would enhance the Agency's ability to provide opportunities
more expeditious and equitable opportunities for meeting public demand
for goods and services from special use authorizations by:
<bullet> Improving customer service and facilitating rural
prosperity and economic development (USDA's strategic goals for FY 2018
through FY 2022);
<bullet> Enabling the Agency to respond more quickly to requests
for new uses;

[[Page 14522]]

<bullet> Reducing the backlog of expired special use
authorizations; and
<bullet> Avoiding deferring action on commercial recreation special
use applications and authorizations requiring 50 hours or less to
process or monitor due to limited availability of appropriated funds
and increasing demand for recreational services.
The benefits derived from revisions to the liability provisions (36
CFR 251.56(d) and (e)) under the proposed rule include greater
programmatic transparency, consistency with the BLM, and making it
easier for the United States government (the public) to recover damages
for high-risk uses of NFS lands by raising the strict liability limit
in tort from $1 million to $2,884,000. Revisions to Sec. 251.56(e)
providing for requiring holders of a special use authorization to
obtain insurance, as needed, are consistent with current insurance
clauses in the Agency's special use authorization forms. These
revisions therefore constitute a codification of current Agency policy
and practice regarding insurance requirements. Changes in costs and
benefits are assumed to be negligible and are not evaluated in
connection with these revisions.
The benefits of the proposed rule are expected to exceed its costs,
given (i) most or all increases in cost recovery fees are transfer
payments; (ii) the relatively low economic impacts of the proposed rule
on most authorization proponents and holders; (iii) the proposed rule's
potential to enhance the Agency's efficiency and consistency in
processing special use proposals and applications as well as monitoring
compliance with special use authorizations; and (iv) the proposed
rule's potential to facilitate the Agency's ability to respond to
increasing demand for all types of special uses in a more equitable and
expeditious manner and to reduce the backlog of expired authorizations
using cost recovery fee revenues generated under the proposed rule.

Congressional Review Act

Pursuant to subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C.
801 et seq.), OIRA has designated this proposed rule as not a major
rule as defined by 5 U.S.C. 804(2).

National Environmental Policy Act

This proposed rule would revise the Forest Service's cost recovery
regulations to update the Forest Service's processing and monitoring
fee schedules based on current BLM and Forest Service costs; to provide
for charging cost recovery fees for processing special use proposals;
to remove the exemption from cost recovery fees for commercial
recreation special uses involving 50 hours or less to process or
monitor; to increase the maximum strict liability limit in tort for
high-risk special uses; and to provide expressly for requiring holders
of a special use authorization to obtain insurance, as needed. Forest
Service regulations at 36 CFR 220.6(d)(2) establish a categorical
exclusion for ``rules, regulations, or policies to establish service-
wide administrative procedures, program processes, or instructions,''
which therefore do not require the preparation of an environmental
assessment or impact statement. The Agency's preliminary assessment is
that this proposed rule falls within this category of actions and that
no extraordinary circumstances exist which would require preparation of
an environmental assessment or environmental impact statement. A final
determination will be made upon adoption of the final rule.

Regulatory Flexibility Act Analysis

Consistent with the Regulatory Flexibility Act (RFA) and E.O.
13272, a threshold RFA analysis is conducted to determine if a proposed
rule would have a significant economic impact on a substantial number
of small entities. If the threshold RFA analysis supports a
determination that a proposed rule would not have a significant
economic impact on a substantial number of small entities, an RFA
analysis is not needed. If such a determination cannot be supported, an
initial RFA analysis is completed, followed by a final RFA analysis
reflecting public comment, to be completed as part of the final
rulemaking. Comments are invited on methods, assumptions, and data used
to estimate the number of small entities potentially affected by the
proposed rule, as well as potential economic impacts on small entities
from the proposed rule, consistent with E.O. 13272 and the invitation
and directions for public comment provided in the summary at the
beginning of this document.
To measure the economic impacts of a proposed rule that would
impose fees on small entities, annual projected changes in fees for
those entities are divided by their estimated annual gross receipts or
expenditures.
The RFA analysis results are presented separately for small
governmental entities, small organizations, and small businesses.
Small Governmental Entities
An estimated 1,641 of the 2,603 governmental entities that held an
authorization for which an application was accepted from FY 2015
through FY 2020 were identified as small based on the holder (Federal,
State, and foreign governmental entities were assumed to be large and
were excluded from the threshold RFA analysis). For context, the Forest
Service has identified 2,116 counties located within economic impact
areas or zones around National Forest units. An estimated 1,400 of the
2,116 counties were determined to have populations of less than 50,000
and therefore were classified as small. The 1,641 governmental entities
determined to be small in this analysis could constitute a substantial
number when considered in the context of the population of small
counties, towns, or communities concentrated in local areas influenced
by NFS lands.
Projected increases in cost recovery fees for small governmental
entities, annualized at 3% over the term of each authorization, average
$215 to $528 per year across small governmental entities and range as
high as $1,432 to $1,782 per year for recreation special use
authorizations. Annualized increases in cost recovery fees for small
governmental entities under the proposed rule are projected to be less
than 0.5% of annual salary and wage expenditures for small governmental
entities, even assuming higher estimates of annualized cost recovery
fee increases ($1,782) and lower estimates of annual governmental
expenses (e.g., $400,000). Although numbers of affected small
governmental entities could constitute a substantial number of entities
in local areas influenced by NFS lands, these results suggest that the
proposed rule would not have a significant economic impact on small
governmental entities.
Small Organizations
There are an estimated 4,167 unique small organizations with an
authorization for which an application was accepted from FY 2015
through FY 2020 that could be subject to the proposed rule. A little
more than half of these small organizations (2,199 or 53%) hold an
authorization for a recreation special use.
Increases in annualized fees for small organizations average $160
to $497 per year across all types of small organizations and types of
uses, and averages range as high as $449 to $1,265 per year for
organizations that hold a recreation special use authorization.
Annualized increases in cost recovery

[[Page 14523]]

fees for small organizations with a recreation special use
authorization (53% or 2,199 out of 4,167 small organizations) average
1% to 2.5% of annual gross receipts. Average economic impacts range
from less than 0.1% to 2.3% of annual gross receipts for small
organizations with authorizations for other types of special uses (47%
or 1,959 out of 4,167 organizations), with the exception of a small
number of organizations (categorized as associations) (0.2% or 9 out of
4,167) with authorizations for multiple types of special uses where
impacts are estimated to average 3.7%.
The estimated number of small organizations (4,167) potentially
impacted (particularly in relation to recreation special uses) and the
possibility that they might be concentrated in local areas influenced
by NFS lands suggest that a substantial number of small organizations
could be affected by the proposed rule. However, with the exception of
economic impacts of 3.7% for a small number of associations (9 out of
4,167), low potential economic impacts, averaging 0.1% to 2.5% of
annual gross receipts for small organizations of all types across all
types of uses, suggest that the proposed rule would not have a
significant economic impact on small organizations.
Small Businesses
A total of 13,711 small business entities had an authorization for
which an application was accepted from FY 2015 through FY 2020 that
could be impacted by the proposed rule.
Average annualized cost recovery fee increases are projected to
range from $329 to $1,160 for small businesses across different types
of special uses. Potential economic impact results indicate that
average annualized changes in cost recovery fees under the proposed
rule could range from 0.3% to 2.3% of annual gross receipts for small
businesses earning $0 to $100,000 in gross receipts per year (with a
median of $50,000) for 3,705 (27%) of 13,711 small businesses that
could be affected by the proposed rule. The 3,705 small businesses are
estimated to account for 0.1% of all U.S. small businesses in the
relevant North American Industry Classification System (NAICS)
industries. Average economic impacts are estimated to be 0.5% or less
of annual gross receipts for the remaining 10,006 (73%) of the 13,711
potentially affected small businesses, which have annual gross receipts
greater than $100,000.
The number of small businesses that would be subject to the
proposed rule is projected to be less than 0.1% to 15% of all U.S.
small businesses in the NAICS industries correlating to the types of
special uses conducted by small businesses under their authorizations.
On a regional level, in economic impact areas influenced by NFS lands,
a substantial number of small businesses conducting recreation special
uses could be affected by the proposed rule. Recreation and industry
are the only use series in which the number or percentage of businesses
as well as potential economic impacts are relatively high compared to
those in the other use series. Projected economic impacts average 2.1%
to 2.3% for small businesses in the smallest receipt category ($0 to
$100,000 in gross receipts per year) with authorizations for recreation
and industry special uses. The number of small businesses affected (620
to 1,000) is estimated to be 1.6% to 1.8% of U.S. small businesses in
NAICS industries representing businesses with authorizations for those
special uses.
The proposed rule could affect a substantial number of small
businesses with a recreation special use authorization (6,473)
concentrated in local areas influenced by NFS lands, particularly in
the case of small businesses conducting outfitting and guiding.
However, potential economic impacts are estimated to average less than
0.1% to 2.1% of annual gross receipts for small businesses with
recreation special use authorizations. Economic impacts are estimated
to range from 1% to 6% of annual gross receipts for small businesses
conducting outfitting and guiding or recreation events in the 90th
percentile (upper bound) estimates of increases in fees for
authorizations for outfitting and guiding or recreational events,
depending on the applicable annual receipt category. Impacts in the
90th percentile are projected to occur for 10% of small businesses
conducting outfitting and guiding or recreation events (i.e., 63 of 627
small business conducting outfitting and guiding and 25 of 252 small
businesses conducting recreation events). For small businesses with an
industry special use authorization (in the 500 series), there could be
approximately 600 still photography and 2,500 commercial filming small
businesses that would be subject to the proposed rule, and
approximately 200 still photography small businesses and 800 commercial
filming small businesses might fall in the smallest receipt category
($0 to $100,000 in gross receipts per year), where the potential for
economic impacts would be highest. These small businesses would account
for 5% to 6% of U.S. small businesses in the corresponding NAICS
industries. However, average annualized changes in cost recovery fees
are projected to be 2.4% of annual gross receipts for these small
businesses, suggesting that the proposed rule would not have a
significant economic impact on a substantial number of small businesses
conducting still photography or commercial filming. Economic impacts
are estimated to range from 1% to 6% of annual gross receipts for small
businesses conducting still photography or commercial filming in the
90th percentile (upper bound), depending on the applicable annual
receipt category. Impacts in the 90th percentile are projected to occur
for 10% of affected small businesses conducting still photography or
commercial filming or 20 of 200 small businesses conducting still
photography and 80 of 800 small businesses conducting commercial
filming, accounting for 0.5% to 0.6% of the U.S. population of small
businesses in those industries.
Of the 553 small business that could be affected by the proposed
rule with authorizations for communications special uses, 109 are
projected to have annual gross receipts of $0 to $100,000 and economic
impacts averaging 0.4% of annual gross receipts. Economic impacts are
estimated to average 0.1% or less of annual gross receipts for the
remaining 444 small businesses with communications special use
authorizations. The Agency has published a separate proposed rule that
would require an annual programmatic administrative fee for
communications special use authorizations. Economic impacts for the
proposed annual programmatic administrative fee are estimated to range
from 3% to 7% of annual gross receipts for small businesses with annual
receipts of $0 to $100,000. The cumulative economic impacts of the
pending proposed programmatic administrative fee and the proposed
special uses cost recovery fees are estimated to range from 3.4% to
7.4% of annual gross receipts for the 109 small businesses in the $0 to
$100,000 annual gross receipt category with authorizations for
communications special uses. Economic impacts of the proposed
programmatic administrative fee are estimated to be 0.7% to 1.4% of
annual gross receipts for small businesses with annual gross receipts
of greater than $100,000 and to increase only marginally to 0.8% to
1.5% of annual gross receipts when taking into account the proposed
special uses cost recovery fees.

[[Page 14524]]

Of the 449 small businesses with a research and culture special use
authorization that would be subject to the proposed cost recovery rule,
132 are projected to be in the smallest annual gross receipt category
(with annual gross receipts of $0 to $100,000), with economic impacts
averaging 2.3% of annual gross receipts. The 132 small business are
estimated to be 0.5% of U.S. small businesses in the corresponding
NAICS industries. Economic impacts average 0.5% or less of annual gross
receipts for the remaining 317 small businesses with research and
culture special use authorizations. The proposed rule could affect a
significant number of small businesses with an energy authorization
(228 or 15% of total U.S. small firms in relevant NAICS industries).
However, the proposed rule would not have a significant economic impact
on these small businesses. Only 13 small businesses with energy special
use authorizations are estimated to experience an economic impact of
0.4% of annual gross receipts, while economic impacts are projected to
be 0.1% or less of annual gross receipts for the remaining 215 small
businesses with energy authorizations. The initial RFA analysis results
for small businesses with authorizations in other series (agriculture,
community services, transportation, and water) indicate that the
proposed rule would not have a significant economic impact on a
substantial number of these small businesses.
Although the number of small businesses that could be affected by
the proposed rule could be substantial in local areas influenced by NFS
lands, particularly in the case of outfitting and guiding small
businesses, the potential economic impacts of the proposed rule would
be low or insignificant in most cases. Potential economic impacts could
be high for small subsets of small businesses, ranging up to 6% of
annual gross receipts for 63 businesses with outfitting and guiding
permits, 25 businesses with recreation event permits, 20 businesses
with still photography permits, and 80 businesses with commercial
filming permits. Cumulative economic impacts are estimated to range as
high as 3.4% to 7.4% of annual gross receipts for 109 small businesses
with authorizations for communications special uses when accounting for
the additional economic impacts of a pending proposed rule that would
require a programmatic administrative fee for communications special
use authorizations.
Based on this analysis of small entities, a substantial number of
small governmental entities and small organizations and most small
businesses are not expected to experience a significant economic impact
from the proposed rule. As noted above, small subsets of small
businesses might experience increases in annualized cost recovery fees
that range up to 6% of annual gross receipts. In the case of small
businesses seeking authorizations for commercial recreation special
uses, the proposed rule is expected to generate additional revenue to
improve processing of applications and issuance of authorizations for
these special uses, thereby generating opportunities for small
businesses to generate revenue to help offset, in whole or in part,
increases in annualized cost recovery fees under the proposed rule.
For this proposed rule, the Agency could not conclude that costs to
small subsets of small businesses are sufficiently low or that net
benefits of the proposed rule are sufficiently high to certify that the
proposed rule would not have a significant economic impact on a
substantial number of small entities. Instead, the Agency has prepared
an initial RFA analysis of the economic impacts of the proposed rule on
small entities that seek or hold a special use authorization for use
and occupancy of NFS lands. Comments are invited on methods,
assumptions, and data used to estimate the number of small entities
potentially affected by the proposed rule, as well as potential
economic impacts on small entities from the proposed rule, consistent
with E.O. 13272 and the invitation and directions for public comment
provided in the summary at the beginning of this document.
Section 603(c) of the RFA lists the types of alternatives that must
be considered for mitigating economic impacts on small entities. The
Agency has considered and is accepting public comment on the following
alternatives consistent with that requirement:
1. Establishment of different compliance or reporting requirements
for small entities or timetables that take into account the resources
available to small entities. Providing for a two-year phase-in of the
proposed rule for small entities that could experience a significant
economic impact has been identified as a legally and programmatically
feasible option to mitigate impacts on small entities. This alternative
would provide for phasing in the increased cost recovery fee rates,
processing fees for proposals, and processing and monitoring fees for
minor category commercial recreation special uses for particular types
of uses (e.g., outfitting and guiding) to mitigate impacts on types of
small entities potentially subject to a significant economic impact
from the proposed rule. In the first year, the increased costs would
apply to actions in minor categories 1 and 2. In the second year, the
increased costs would apply to actions in minor categories 1, 2, and 3.
In the third year, the increased costs would apply to actions in all
minor categories (1 through 4). Selection of this alternative could
result in continued delay in processing or failure to process
applications and issue authorizations for commercial recreation special
uses during the phase-in period, in contrast to the more efficient
processing of applications and issuance of authorizations for non-
recreation special uses. While small entities seeking a commercial
recreation special use authorization might avoid the cost of processing
fees, those entities could experience losses in benefits (e.g.,
revenue) resulting from processing delays.
2. Clarification, consolidation, or simplification of compliance
and reporting requirements for small entities. This option is already
addressed by the proposed rule to the extent it would clarify the rates
in the cost recovery fee schedules and would expand the cases subject
to a flat cost recovery fee, rather than full cost recovery under major
cost recovery categories. The proposed revisions would provide for more
current and effective cost recovery, which would translate into better
customer service. Existing compliance and reporting requirements
associated with processing proposals and applications and monitoring
compliance with special use authorizations are necessary to meet the
Agency's statutory mission and mandates. The proposed rule would not
alter reporting requirements for special use authorizations. Cost
recovery fees would not be routinely, much less annually, incurred
under the proposed rule. Processing fees would be incurred only when a
proposal and application are submitted; a proposal would be submitted
only once for each use, and an application for an existing use would
typically be subject to a CE, which would greatly minimize the Agency's
costs and any associated processing fee. Monitoring fees would
typically be charged only for construction, reconstruction, and site
rehabilitation. Most of the monitoring activities conducted by the
Agency would not be subject to cost recovery fees.
3. Use of performance rather than design standards. This option
does not apply to this proposed rule, which involves recovery of Agency
costs

[[Page 14525]]

incurred in providing benefits to identifiable recipients (i.e.,
proponents and holders of a special use authorization). The proposed
rule would revise the Agency's existing cost recovery regulations to
provide for charging cost recovery fees commensurate with the Agency's
current costs. To the extent performance is an issue, it is addressed
in the Agency's existing cost recovery regulations, which establish a
customer service standard in connection with processing fees.
4. Exemption for some or all small entities from the proposed rule,
in whole or in part. Exempting some or all small entities from cost
recovery fees in whole or in part is not expected to be feasible. These
exemptions would be difficult to implement programmatically and would
be inconsistent with the statutory authorities providing for recovery
of the Agency's costs incurred in conferring discrete benefits to
identifiable recipients, including small entities. Equally important,
these exemptions would be inconsistent with the purposes of the
proposed rule, which include revising the cost recovery rates
commensurate with the Agency's current costs, charging processing fees
for proposals, and removing the existing exemption from cost recovery
fees for commercial recreation special use applications and
authorizations in minor categories.
The public is invited to suggest other alternatives to mitigate
economic impacts on small entities that the Agency has not considered
that are consistent with the Agency's statutory cost recovery authority
and the purposes of the proposed rule.

Federalism

The Agency has considered this proposed rule under the requirements
of E.O. 13132, Federalism. The Agency has determined that the proposed
rule conforms with the federalism principles set out in this executive
order; would not impose any compliance costs on the States; and would
not have substantial direct effects on the States, on the relationship
between the Federal Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Therefore, the Agency has concluded that this proposed rule would not
have federalism implications.

Consultation and Coordination With Indian Tribal Governments

This proposed rule has been reviewed in accordance with the
requirements of Executive Order 13175, Consultation and Coordination
with Indian Tribal Governments. Executive Order 13175 requires Federal
agencies to consult and coordinate with Tribes on a government-to-
government basis on policies that have Tribal implications, including
regulations, legislative comments or proposed legislation, and other
policy statements or actions that have substantial direct effects on
one or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
The Forest Service has determined that this proposed rule, if
finalized, may have substantial direct effects on one or more Tribes
and that affording Tribes an opportunity for consultation is therefore
warranted. The Forest Service is committed to full compliance with the
provisions of Executive Order 13175 and will undertake, through the
USDA Office of Tribal Relations, Tribal consultation following
publication of this proposed rule and before proceeding with a final
rulemaking.

Environmental Justice

The Agency has considered the proposed rule under the requirements
of E.O. 12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations. The Forest Service has
determined that the proposed rule is not expected to result in
disproportionately high and adverse impacts on minority or low-income
populations or the exclusion of minority and low-income populations
from meaningful involvement in decision-making.

No Takings Implications

The Agency has analyzed this proposed rule in accordance with the
principles and criteria in E.O. 12630, Governmental Actions and
Interference with Constitutionally Protect Property Rights. The Agency
has determined that the proposed rule would not pose the risk of a
taking of private property.

Energy Effects

The Agency has reviewed this proposed rule under E.O. 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that this proposed rule
would not constitute a significant energy action as defined in E.O.
13211.

Civil Justice Reform

The Forest Service has analyzed this proposed rule in accordance
with the principles and criteria in E.O. 12988, Civil Justice Reform.
After adoption of this proposed rule, (1) all State and local laws and
regulations that conflict with this proposed rule or that impede its
full implementation would be preempted; (2) no retroactive effect would
be given to this proposed rule; and (3) it would not require
administrative proceedings before parties may file suit in court
challenging its provisions.

Unfunded Mandates

Pursuant to title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Agency has assessed the effects of this proposed
rule on State, Tribal, and local governments and the private sector.
This proposed rule would not compel the expenditure of $100 million or
more by any State, Tribal, or local government or anyone in the private
sector. Therefore, a statement under section 202 of the act is not
required.

Controlling Paperwork Burdens on the Public

The proposed rule does not contain any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 CFR part 1320 that are not already required by law or not already
approved for use and therefore imposes no additional paperwork burden
on the public. Accordingly, the review provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing
regulations at 5 CFR part 1320 do not apply.

List of Subjects in 36 CFR Part 251

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

Therefore, for the reasons set forth in the preamble, the Forest
Service proposes to amend part 251 of title 36 of the Code of Federal
Regulations as follows:

PART 251--LAND USES

Subpart B--Special Uses

0
1. The authority citation for part 251, subpart B, continues to read:

Authority: 16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551,
580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1772.

0
2. In Sec. 251.56, revise paragraphs (d) and (e) to read as follows.

Sec. 251.56 Terms and conditions.

* * * * *
(d) Liability--(1) Damages. Holders shall pay the United States in
accordance with applicable Federal and State law for all injury, loss,
or damage, including fire suppression costs or other

[[Page 14526]]

costs associated with rehabilitation or restoration of natural
resources, the United States may incur in accordance with existing
Federal and State law in connection with the holders' use or occupancy.
(2) Indemnification. Holders shall indemnify, defend, and hold
harmless the United States for any judgments, liabilities, claims,
damages, and costs, including fire suppression costs or other costs
associated with rehabilitation or restoration of natural resources,
arising from the holders' past, present, and future acts or omissions
in connection with their use or occupancy.
(3) Strict liability in tort. Holders of a special use
authorization for high-risk use and occupancy, including but not
limited to powerline facilities, oil and gas pipelines, and dams with a
high hazard assessment classification, shall be strictly liable in tort
to the United States for all injury, loss, or damage, including fire
suppression costs or other costs associated with rehabilitation or
restoration of natural resources, arising from the holders' past,
present, and future acts or omissions in connection with their use or
occupancy, provided that the maximum strict liability in tort shall be
specified in the special use authorization as determined by a risk
assessment, prepared in accordance with established agency procedures,
and shall not exceed $2,884,000 for any one occurrence, as adjusted
annually as prescribed below. The Forest Service shall update the
maximum $2,884,000 strict liability limit in tort annually by using the
annual rate of change from July to July in the Consumer Price Index for
All Urban Consumers, U.S. City Average (CPI-U), rounded to the nearest
$1,000. The maximum strict liability limit in tort does not apply to
environmental liability, including liability under the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601
et seq.), or any other liability that is not subject to a strict
liability limit under applicable law. Liability in tort for injury,
loss, or damage, including fire suppression costs or other costs
associated with rehabilitation or restoration of natural resources,
exceeding the specified maximum strict liability in tort shall be
determined by the laws governing ordinary negligence of the
jurisdiction in which the injury, loss, or damage occurred.
(4) Other remedies. The provisions of paragraph (d) of this section
do not limit or preclude other remedies that may be available to the
United States under applicable law.
(e) Bonding and insurance. An authorized officer may require the
holder of a special use authorization for other than a noncommercial
group use to obtain insurance that includes the United States as an
additional insured and to furnish a bond or other security acceptable
to the authorized officer to secure any of the obligations to the
United States imposed by the terms of the authorization or by any
applicable law, regulation, or order.
* * * * *
0
3. In Sec. 251.58, revise paragraphs (a), (b) introductory text,
(b)(1), (c), and (e) through (g) to read as follows:

Sec. 251.58 Cost recovery.

(a) Assessment of fees to recover agency processing and monitoring
costs. The Forest Service shall assess separate fees to recover the
agency's processing costs for special use proposals and special use
applications and to recover the agency's monitoring costs for special
use authorizations. Proponents, applicants, and holders shall submit
sufficient information for the authorized officer to estimate the
number of hours required to process their proposals or applications or
monitor their authorizations. Cost recovery fees are separate from any
fees charged for the use and occupancy of National Forest System lands.
(b) Special use proposals, applications, and authorizations subject
to cost recovery requirements. Except as exempted in paragraphs (g)(1)
through (4) of this section, the cost recovery requirements of this
section apply in the following situations to the processing of special
use proposals and applications and monitoring of special use
authorizations issued pursuant to this subpart:
(1) Proposals and applications for use and occupancy that require a
new special use authorization. Proposals and applications for a new
special use authorization shall be subject to processing fees.
* * * * *
(c) Processing fee requirements. A processing fee is required for
each proposal and application for or agency action to issue a special
use authorization as identified in paragraphs (b)(1) through (3) of
this section. Processing fees do not include costs incurred by the
proponent or applicant in providing information, data, and
documentation necessary for the authorized officer to make a decision
on the proposed use or occupancy pursuant to the provisions in Sec.
251.54.
(1) Basis for processing fees. The processing fee categories 1
through 6 set out in paragraphs (c)(2)(i) through (vi) of this section
are based upon the costs that the Forest Service incurs in meeting with
the proponent or applicant, reviewing the proposal or application,
conducting initial and second-level screening for the proposal,
conducting environmental analyses of the effects of the proposed use,
reviewing any applicant-generated environmental documents and studies,
conducting site visits, evaluating a proponent's or an applicant's
technical and financial qualifications, making a decision on whether to
issue the authorization, and preparing documentation of analyses,
decisions, and authorizations for each application. The processing fee
for a proposal or an application shall be based only on costs necessary
for processing that proposal or application. ``Necessary for'' means
that but for the proposal or application, the costs would not have been
incurred and that the costs cover only those activities without which
the proposal or application cannot be processed. The processing fee
shall not include costs for studies for programmatic planning or
analysis or other agency management objectives, unless they are
necessary for the proposal or application being processed. For example,
the processing fee shall not include costs for capacity studies, use
allocation decisions, energy corridor or communications site planning,
or biological studies that address species diversity, unless they are
necessary for the proposal or application. Proportional costs for
analyses, such as capacity studies, that are necessary for the proposal
or application may be included in the processing fee. The costs
incurred for processing a proposal or an application, and thus the
processing fee, depend on the complexity of the proposed use and
occupancy; the amount of information that is necessary for the
authorized officer's decision in response to the proposed use and
occupancy; and the degree to which the proponent or applicant can
provide this information to the agency. Processing work conducted by
the applicant or a third party contracted by the applicant minimizes
the costs the Forest Service will incur to process the proposal or
application, and thus reduces the processing fee. The total processing
time is the total time estimated for all Forest Service personnel
involved in processing a proposal or an application and is estimated
case by case to determine the fee category for a proposal or an
application.
(i) Processing fee determinations. Separate processing fees will be
charged

[[Page 14527]]

for processing proposals and for processing applications. The
applicable fee rate for processing proposals and applications in minor
categories 1 through 4 (paragraphs (c)(2)(i) through (iv) of this
section) shall be assessed from a schedule. The processing fee for
proposals and applications in category 5, which may be either minor or
major, shall be established in the master agreement (paragraph
(c)(2)(v) of this section). For major category 5 (paragraph (c)(2)(v)
of this section) and category 6 (paragraph (c)(2)(vi) of this section)
cases, the authorized officer shall estimate the agency's full actual
processing costs. The estimated processing costs for category 5 and
category 6 cases shall be reconciled as provided in paragraphs
(c)(5)(ii) and (iii) and (c)(6)(ii) and (iii) of this section.
(ii) Reduction in processing fees for certain category 6 proposals
and applications. For category 6 proposals and applications submitted
under authorities other than the Mineral Leasing Act, the proponent or
applicant:
(A) May request a reduction of the processing fee based upon the
proponent's or applicant's written analysis of actual costs, the
monetary value of the rights and privileges sought, that portion of the
costs incurred for the benefit of the general public interest, the
public service provided, the efficiency of the agency processing
involved, and other factors relevant to determining the reasonableness
of the costs. The agency will determine whether the estimate of full
actual costs should be reduced based upon this analysis and will notify
the proponent or applicant in writing of this determination; or
(B) May agree in writing to waive payment of reasonable costs and
pay the actual costs incurred in processing the proposal or
application.
(2) Processing fee categories--(i) Category 1: Minimal Impact: More
than 0 and up to and including 8 hours. The total estimated time in
this minor category is more than 0 and up to and including 8 hours for
Forest Service personnel to process a proposal or an application.
(ii) Category 2: More than 8 and up to and including 24 hours. The
total estimated time in this minor category is more than 8 and up to
and including 24 hours for Forest Service personnel to process a
proposal or an application.
(iii) Category 3: More than 24 and up to and including 40 hours.
The total estimated time in this minor category is more than 24 and up
to and including 40 hours for Forest Service personnel to process a
proposal or an application.
(iv) Category 4: More than 40 and up to and including 64 hours. The
total estimated time in this minor category is more than 40 and up to
and including 64 hours for Forest Service personnel to process a
proposal or an application.
(v) Category 5: Master agreements. The Forest Service and the
applicant may enter into master agreements for the agency to recover
processing costs associated with a particular proposal or application,
a group of proposals or applications, or similar proposals or
applications for a specified geographic area. This category is minor if
64 hours or less are needed for Forest Service personnel to process a
proposal or an application and major if more than 64 hours are needed.
In signing a master agreement for a major category proposal or
application submitted under authorities other than the Mineral Leasing
Act, a proponent or an applicant waives the right to request a
reduction of the processing fee based upon the reasonableness factors
enumerated in paragraph (c)(1)(ii)(A) of this section. A master
agreement shall at a minimum include:
(A) The fee category or estimated processing costs;
(B) A description of the method for periodic billing, payment, and
auditing;
(C) A description of the geographic area covered by the agreement;
(D) A work plan and provisions for updating the work plan;
(E) Provisions for reconciling differences between estimated and
final processing costs; and
(F) Provisions for terminating the agreement.
(vi) Category 6: More than 64 hours. In this major category more
than 64 hours are needed for Forest Service personnel to process a
proposal or an application. The authorized officer shall determine the
issues to be addressed and shall develop preliminary work and financial
plans for estimating recoverable costs.
(3) Multiple proposals or applications other than those covered by
master agreements (category 5)--(i) Unsolicited proposals or
applications where there is no competitive interest. Processing costs
that are incurred in processing more than one of these proposals or
applications (such as the cost of environmental analysis or printing an
environmental impact statement that relates to all the applications)
must be paid in equal shares or on a prorated basis, as deemed
appropriate by the authorized officer, by each proponent or applicant.
(ii) Unsolicited proposals where competitive interest exists. When
one or more unsolicited proposals are submitted and the authorized
officer determines that competitive interest exists, the agency shall
issue a prospectus. All proposals submitted pursuant to that
solicitation shall be processed as applications. The applicants are
responsible for the costs of environmental analyses that are necessary
for their applications and that are conducted prior to issuance of the
prospectus. Processing fees for these cases shall be determined
pursuant to the procedures for establishing a category 6 processing fee
and shall include costs such as those incurred in printing and mailing
the prospectus; having parties other than the Forest Service review and
evaluate applications; establishing a case file; recording data;
conducting financial reviews; and, for selected applicants, any
additional environmental analysis required in connection with their
applications. Processing fees shall be paid in equal shares or on a
prorated basis, as deemed appropriate by the authorized officer, by all
parties who submitted proposals that were processed as applications
pursuant to the solicitation.
(iii) Solicited applications. When the Forest Service solicits
applications through the issuance of a prospectus on its own
initiative, rather than in response to an unsolicited proposal or
proposals, the agency is responsible for the cost of environmental
analyses conducted prior to issuance of the prospectus. All proposals
submitted pursuant to that solicitation shall be processed as
applications. Processing fees for these cases shall be determined
pursuant to the procedures for establishing a category 6 processing fee
and shall include costs such as those incurred in printing and mailing
the prospectus; having parties other than the Forest Service review and
evaluate applications; establishing a case file; recording data;
conducting financial reviews; and, for selected applicants, any
additional environmental analysis required in connection with their
applications. Processing fees shall be paid in equal shares or on a
prorated basis, as deemed appropriate by the authorized officer, by all
parties who submitted proposals that were processed as applications
pursuant to the solicitation.
(4) Billing and revision of processing fees--(i) Billing. The
authorized officer shall provide written notice to a proponent or
applicant when a proposal or application has been received. The
authorized officer shall not bill the proponent or applicant a
processing fee until the agency is prepared to process the proposal or
application.
(ii) Revision of processing fees. Minor category processing fees
shall not be

[[Page 14528]]

reclassified into a higher minor category once the processing fee
category has been determined. However, if the authorized officer
discovers previously undisclosed information that necessitates changing
a minor category processing fee to a major category processing fee, the
authorized officer shall notify the proponent or applicant in writing
of the conditions prompting a change in the processing fee category
before continuing with processing the proposal or application. The
proponent or applicant may accept the revised processing fee category
and pay the difference between the previous and revised processing fee
categories; withdraw the proposal or application; revise the project to
lower the processing costs; or request review of the disputed fee as
provided in paragraphs (e)(1) through (4) of this section.
(5) Payment of processing fees. (i) Payment of a processing fee
shall be due within 30 days of issuance of a bill for the fee, pursuant
to paragraph (c)(4) of this section. The processing fee must be paid
before the Forest Service can initiate or, in the case of a revised
fee, continue with processing a proposal or an application. Payment of
the processing fee by the proponent or applicant does not obligate the
Forest Service to authorize the proponent's or applicant's proposed use
and occupancy.
(ii) For category 5 cases, when the estimated processing costs are
lower than the final processing costs for proposals or applications
covered by a master agreement, the proponent or applicant shall pay the
difference between the estimated and final processing costs.
(iii) For category 6 cases, when the estimated processing fee is
lower than the full actual costs of processing a proposal or an
application submitted under the Mineral Leasing Act, or lower than the
full reasonable costs (when the proponent or applicant has not waived
payment of reasonable costs) of processing a proposal or an application
submitted under other authorities, the proponent or applicant shall pay
the difference between the estimated and full actual or reasonable
processing costs.
(6) Refunds of processing fees. (i) Processing fees in minor
categories 1 through 4 are nonrefundable and shall not be reconciled.
(ii) For category 5 cases, if payment of the processing fee exceeds
the agency's final processing costs for the proposals or applications
covered by a master agreement, the authorized officer either shall
refund the excess payment to the proponent or applicant or, at the
proponent's or applicant's request, shall credit it towards monitoring
fees due.
(iii) For category 6 cases, if payment of the processing fee
exceeds the full actual costs of processing a proposal or an
application submitted under the Mineral Leasing Act, or the full
reasonable costs (when the proponent or applicant has not waived
payment of reasonable costs) of processing a proposal or an application
submitted under other authorities, the authorized officer either shall
refund the excess payment to the proponent or applicant or, at the
proponent's or applicant's request, shall credit it towards monitoring
fees due.
(iv) For major category 5 and category 6 proposals and
applications, a proponent or an applicant whose proposal or application
is denied or withdrawn in writing is responsible for costs incurred by
the Forest Service in processing the proposal or application up to and
including the date the agency rejects the proposal, denies the
application, or receives written notice of the proponent's or
applicant's withdrawal. When a proponent or an applicant withdraws a
major category 5 or category 6 proposal or application, the proponent
or applicant also is responsible for any costs subsequently incurred by
the Forest Service in terminating consideration of the proposal or
application.
(7) Customer service standards. The Forest Service shall endeavor
to make a decision on a proposal or an application that falls into
minor processing category 1, 2, 3, or 4 and, in the case of an
application, that is subject to a categorical exclusion pursuant to the
National Environmental Policy Act, within 60 calendar days from the
date of receipt of the processing fee. If the proposal or application
cannot be processed within the 60-day period, then prior to the 30th
calendar day of the 60-day period, the authorized officer shall notify
the proponent or applicant in writing of the reason why the proposal or
application cannot be processed within the 60-day period and shall
provide the proponent or applicant with a projected date when the
agency plans to complete processing the proposal or application. For
all other proposals and applications, including all applications that
require an environmental assessment or an environmental impact
statement, the authorized officer shall, within 60 calendar days of
acceptance of the proposal or application, notify the proponent or
applicant in writing of the anticipated steps that will be needed to
process the proposal or application. These customer service standards
do not apply to proposals or applications that are subject to a waiver
of or are exempt from cost recovery fees under (f) or (g) of this
section.
* * * * *
(e) Proponent, applicant, or holder disputes concerning processing
or monitoring fee assessments; requests for changes in fee categories
or estimated costs. (1) If a proponent, an applicant, or a holder
disagrees with the processing or monitoring fee category assigned by
the authorized officer for a minor category or, in the case of a major
processing or monitoring category, with the estimated dollar amount of
the processing or monitoring costs, the proponent, applicant, or holder
may submit a written request before the disputed fee is due for
substitution of an alternative fee category or alternative estimated
costs to the superior of the authorized officer who determined the fee
category or estimated costs. The proponent, applicant, or holder must
provide documentation that supports the alternative fee category or
estimated costs.
(2) In the case of a disputed processing fee:
(i) If the proponent or applicant pays the full disputed processing
fee, the authorized officer shall continue to process the proposal or
application during the superior officer's review of the disputed fee,
unless the proponent or applicant requests that the processing cease.
(ii) If the proponent or applicant fails to pay the full disputed
processing fee, the authorized officer shall suspend further processing
of the proposal or application pending the superior officer's
determination of an appropriate processing fee and the proponent's or
applicant's payment of that fee.
(3) In the case of a disputed monitoring fee:
(i) If the applicant or holder pays the full disputed monitoring
fee, the authorized officer shall issue the authorization or allow the
use and occupancy to continue during the superior officer's review of
the disputed fee, unless the applicant or holder elects not to exercise
the authorized use and occupancy of National Forest System lands during
the review period.
(ii) If the applicant or holder fails to pay the full disputed
monitoring fee, the authorized officer shall not issue the applicant a
new authorization or shall suspend the holder's existing authorization
in whole or in part pending the superior officer's determination of an
appropriate monitoring fee and the applicant's or holder's payment of
that fee.

[[Page 14529]]

(4) The superior officer shall render a decision on a disputed
processing or monitoring fee within 30 calendar days of receipt of the
written request from the proponent, applicant, or holder. The superior
officer's decision is the final level of administrative review. The
dispute shall be decided in favor of the proponent, applicant, or
holder if the superior officer does not respond to the written request
within 30 days of receipt.
(f) Waivers of processing and monitoring fees. (1) All or part of a
processing or monitoring fee may be waived, at the sole discretion of
the authorized officer, when one or more of the following criteria are
met:
(i) The proponent, applicant, or holder is a local, State, or
Federal governmental entity that does not or would not charge
processing or monitoring fees for comparable services the proponent,
applicant, or holder provides or would provide to the Forest Service;
(ii) A major portion of the processing costs results from issues
not related to the proposed use or activity;
(iii) The proposal or application is for a proposed use or activity
that is intended to prevent or mitigate damage to real property or to
mitigate hazards or dangers to public health and safety resulting from
an act of nature, an act of war, or negligence of the United States;
(iv) The application is for a new special use authorization to
relocate facilities or activities to comply with public health and
safety or environmental laws and regulations that were not in effect at
the time the existing special use authorization was issued;
(v) The application is for a new special use authorization to
relocate facilities or activities because the land is needed by a
Federal agency or for a Federally funded project for an alternative
public purpose; or
(vi) The proposed use or activity will provide, without user or
customer charges, a valuable benefit to the general public or to the
programs of the Secretary of Agriculture.
(2) A proponent's, an applicant's, or a holder's request for a full
or partial waiver of a processing or monitoring fee must be in writing
and must include an analysis that demonstrates how one or more of the
criteria in paragraphs (f)(1)(i) through (vi) of this section apply.
(g) Exemptions from processing or monitoring fees. No processing or
monitoring fees shall be charged when the proposal, application, or
authorization is for a:
(1) Noncommercial group use as defined in Sec. 251.51;
(2) Water system authorized by section 501(c) of the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1761(c));
(3) Use or activity conducted by a Federal agency that is not
authorized under title V of the Federal Land Policy and Management Act
of 1976 (43 U.S.C. 1761-1772); the Mineral Leasing Act of 1920 (30
U.S.C. 185); the National Historic Preservation Act of 1966 (54 U.S.C.
300101 et seq.); or the Act of May 26, 2000 (16 U.S.C. 460l-6d); or
(4) Recreation residence as defined in the Forest Service's
directive system (36 CFR 200.4) and requires 64 hours or less for
Forest Service personnel to process or monitor.
* * * * *

Dated: February 22, 2023.
Meryl Harrell,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 2023-04180 Filed 3-8-23; 8:45 am]
BILLING CODE 3411-15-P

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