Proposed Rule2023-11622
Minerals Cost Recovery
Primary source
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Published
June 13, 2023
Issuing agencies
Agriculture DepartmentForest Service
Abstract
The Forest Service proposes regulations to impose new fees to recover the agency's costs for processing proposals related to mineral activity on National Forest System lands. This would include costs for actions such as environmental review and analysis, monitoring authorized activities, and other processing-related costs. The proposed rule would establish a fee schedule based on categories of Federal hours needed to complete processing for most mineral-related actions and charge a fixed fee for low-volume mineral material disposals. This proposal to recover costs is based on statutory authority, which authorizes Federal agencies to charge for work it performs to provide a service or benefit to identifiable entities and on policy guidance from the Office of Management and Budget (OMB) which directs charging these fees. This rulemaking also responds to a Government Accountability Office (GAO) recommendation made in an audit report that the Forest Service recover costs for processing locatable mineral plans of operation. The Forest Service invites written comments on this proposed rule and its supporting economic analysis of impacts to small businesses.
Full Text
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<title>Federal Register, Volume 88 Issue 113 (Tuesday, June 13, 2023)</title>
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[Federal Register Volume 88, Number 113 (Tuesday, June 13, 2023)]
[Proposed Rules]
[Pages 38416-38430]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-11622]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 228
RIN 0596-AD47
Minerals Cost Recovery
AGENCY: Forest Service, USDA.
ACTION: Proposed rule; request for public comment.
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SUMMARY: The Forest Service proposes regulations to impose new fees to
recover the agency's costs for processing proposals related to mineral
activity on National Forest System lands. This would include costs for
actions such as environmental review and analysis, monitoring
authorized activities, and other processing-related costs. The proposed
rule would establish a fee schedule based on categories of Federal
hours needed to complete processing for most mineral-related actions
and charge a fixed fee for low-volume mineral material disposals. This
proposal to recover costs is based on statutory authority, which
authorizes Federal agencies to charge for work it performs to provide a
service or benefit to identifiable entities and on policy guidance from
the Office of Management and Budget (OMB) which directs charging these
fees. This rulemaking also responds to a Government Accountability
Office (GAO) recommendation made in an audit report that the Forest
Service recover costs for processing locatable mineral plans of
operation. The Forest Service invites written comments on this proposed
rule and its supporting economic analysis of impacts to small
businesses.
DATES: Comments concerning this proposed rule must be received by
August 14, 2023.
ADDRESSES: Comments, identified by RIN 0596-AD47, 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#91c2dcbfd7c2bfc6decedcd6dcc2e5f0f7f7d1e4e2f5f0bff6fee7"><span class="__cf_email__" data-cfemail="b4e7f99af2e79ae3fbebf9f3f9e7c0d5d2d2f4c1c7d0d59ad3dbc2">[email protected]</span></a>;
3. Mail: Director, Minerals and Geology Management Staff, 201 14th
Street SW, Washington, DC 20250-1124; or
4. Hand Delivery/Courier: Director, Minerals and Geology Management
Staff, 1st Floor South East, 201 14th Street SW, Washington, DC 20250-
1124.
Please confine written comments to issues pertinent to the proposed
rule and the supporting economic analysis; explain the reasons for any
recommended changes; and, where possible, reference the specific
wording being addressed. 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, Minerals and
Geology Management, 201 14th Street SW, 1st Floor Southeast, Sidney R.
Yates Federal Building, Washington, DC, on business days between 8:30
a.m. and 4:00 p.m. Visitors are encouraged to call ahead at 202-205-
1680 to facilitate entry into the building. Comments may also be viewed
on the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the
Searchbox, enter ``RIN 0596-AD47'' and click the ``Search'' button.
FOR FURTHER INFORMATION CONTACT: Tim Abing, Affiliate to the Minerals
and Geology Management Staff at <a href="/cdn-cgi/l/email-protection#8cf8e5e1e3f8e4f5a2edeee5e2ebccf9ffe8eda2ebe3fa"><span class="__cf_email__" data-cfemail="05716c686a716d7c2b64676c6b6245707661642b626a73">[email protected]</span></a>. Individuals who
use telecommunication devices for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339 between 8 a.m. and 8
p.m., Eastern Daylight Time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
Background and Need for Proposed Rule
The Forest Service proposes regulations to recover its costs for
processing applications and other proposals related to mineral activity
conducted on National Forest System (NFS) lands. The proposed rule
would
[[Page 38417]]
also recover agency costs for monitoring compliance with construction
and reclamation requirements for authorizations issued by the Forest
Service pursuant to 36 CFR part 228. Each year the Forest Service
processes nearly 3,000 applications and other proposals to use and
occupy NFS lands to prospect, explore, develop, and remove mineral
resources. NFS lands currently host approximately 138 authorized
locatable mineral operations, 47 operations associated with coal and
other non-energy solid leasable minerals, 5,490 Federal oil and gas
leases, 3,170 active oil and gas wells, 11 geothermal leases, and 4,155
community pits and common use areas for disposal of mineral materials.
Each of these activities was subject to a case-specific review,
analysis, and decision process before approval and implementation,
requiring substantial Forest Service time and expense.
The Forest Service responds to requests from businesses and
individuals to prospect, explore, develop, and/or dispose of mineral
resources on NFS lands. Depending on the statutory classification of
the mineral resource involved, these requests fall into three distinct
program areas: locatable minerals, leasable minerals, and mineral
materials. The action the Forest Service takes to process these
requests varies as does the associated commitment of agency resources
to complete their processing. Examples of mineral-related agency
actions include approving locatable mineral plans of operation or oil
and gas surface use plans of operation, issuing contracts or permits to
dispose of mineral materials, and providing surface management agency
responses to mineral leases and operating plan proposals that are filed
with other government agencies such as the Bureau of Land Management.
Governing statutes related to minerals management on NFS lands
include the General Mining Law of 1872; the Mineral Resources on Weeks
Act Lands of March 4, 1917; the Mineral Leasing Act of 1920, as
amended; the Bankhead-Jones Farm Tenant Act of 1937; the Mineral
Leasing Act of 1947 for Acquired Lands; the Materials Act of 1947; the
Surface Resources Act of 1955; the Geothermal Steam Act of 1970; the
Federal Coal Leasing Amendments Act of 1975; the Surface Mining Control
and Reclamation Act of 1977; the Federal Onshore Oil & Gas Leasing
Reform Act of 1987; and the Energy Policy Act of 2005. The basic
authority of the Secretary of Agriculture to regulate the use and
occupancy of NFS lands is the Organic Administration Act of 1897 (16
U.S.C. 551).
Some of the aforementioned statutes provide the Forest Service with
direct authority to authorize certain mineral-related activity (such as
approving the surface use plan of operations for oil and gas drilling
permits under the Federal Onshore Oil and Gas Leasing Reform Act).
Other statutes provide that the Forest Service consent, concur, or make
recommendations for mineral leases and operating plans filed with
another government agency (such as, consent to the Bureau of Land
Management [BLM] for coal leasing under the Federal Coal Leasing
Amendments Act, and concurring to Federal mine plan decisions made by
the Office of Surface Mining Reclamation and Enforcement [OSMRE]). The
BLM, which manages federally owned minerals on all Federal lands,
including NFS lands, has existing regulations for cost recovery for its
minerals program. However, BLM's regulations do not include provisions
for the Forest Service to recover its costs for actions where there are
joint processing responsibilities.
Requirements of the National Environmental Policy Act, the National
Historic Preservation Act, the Endangered Species Act, the
Archaeological Resources Protection Act of 1979, and Executive Order
Nos. 11998 (Floodplains) and 11990 (Wetlands) also bear directly on
costs the Forest Service incurs in processing mineral-related actions.
These statutory authorities and directives require the Forest Service
to complete varying levels of analysis and document the effects of
proposed activities on environmental, cultural, and historical
resources. Oftentimes, specific consultation with agencies overseeing
the resource protected under these statutes must also occur. The
practical effect of these requirements lengthens the time required and
increases the cost associated with processing mineral-related actions.
The time and cost impacts weigh on Forest Service staff and financial
resources, on proponents seeking authorization for new activity, and on
holders of existing authorizations. These impacts are a principal
factor in the development of this proposed cost recovery rule.
At current levels of appropriated funding, staffing, and other
resources to manage its minerals program, the Forest Service finds it
increasingly difficult to provide timely reviews and evaluation of
mineral-related proposals and to monitor activity to ensure it is
conducted in compliance with applicable requirements. Under current
circumstances, the Forest Service is challenged to deliver efficient
and effective customer service in its minerals program to meet the
needs of proponents and the public.
Some proponents voluntarily fund agency costs and hire third-party
contractors to conduct required environmental reviews to help speed the
approval process for a particular proposed use. However, without the
appropriate regulatory authority, the Forest Service has no means to
require a proponent to pay for the agency's costs to process a proposal
or monitor compliance with an authorization.
The Independent Offices Appropriations Act of 1952 (IOAA), as
amended (31 U.S.C. 9701) authorizes Federal agencies to prescribe
regulations to charge fees to recover the government's costs for
providing special benefits to recipients beyond those that accrue to
the general public.
The IOAA requires agencies to promulgate regulations to charge
proponents for the cost of processing documents which the Forest
Service is proposing to do through this rulemaking. Charges imposed
under the authority of the IOAA must be fair and equitable and take
into consideration the costs to the Federal Government, value to the
recipient, public interest served, and other pertinent factors. The
IOAA acknowledges that other statutes may prohibit or impose
limitations on fees that the government may charge.
Government-wide policy for implementing the cost recovery
provisions of the IOAA are described in the Office of Management and
Budget (OMB) Circular No. A-25 entitled ``User Charges.'' The general
Federal policy is that a charge will be assessed against each
identifiable recipient for special benefits beyond those received by
the general public. Unless prohibited by statute or other authority,
the Circular states that agencies must impose a charge against each
identifiable recipient that recovers the full cost to the agency of
providing the service. Section 7 of the Circular directs that user
charges be instituted through promulgation of agency regulations.
Adoption of this proposed rule would comply with the requirements of
OMB Circular No. A-25.
In 2016, the Government Accountability Office (GAO) completed a
review to assess the Forest Service and BLM processing of mine plans of
operation for hardrock minerals under the 1872 Mining Law (GAO-16-165).
The GAO recommended the Forest Service issue a rule that establishes a
fee structure for hardrock mine plan processing activities and request
[[Page 38418]]
authority from Congress to retain any fees it collects. Adoption of
this proposed rule would implement GAO's recommendation.
Additionally, Section 40206 of the 2021 Bipartisan Infrastructure
Law (Pub. L. 117-58) specified that cost recovery is to be among
options considered by the Secretaries of Agriculture and Interior to
ensure adequate staffing of federal entities responsible for processing
authorizations related to critical mineral activities on Federal land.
This rulemaking is needed for the Forest Service to comply with
those statutory requirements and Federal policy as well as to implement
GAO's recommendation. The proposed rule aims to increase capacity and
improve customer service in the Forest Service minerals program.
The Forest Service expects to use the processing and monitoring
fees paid by proponents to fund the costs the agency incurs in the
review and decision-making process responding to mineral-related
proposals to use and occupy NFS lands; to prepare and issue mineral
authorizations in those cases where the agency approves the proposed
use and occupancy; to provide required responses to mineral proposals
filed with other government agencies; and to monitor compliance with
the terms and conditions of mineral authorizations. The recovery of
costs from applicants and holders would provide the Forest Service with
additional resources to deliver more efficient and timely responses to
requests for agency action. Similarly, cost recovery also would
increase the Forest Service's ability to monitor on-site activities to
adequately protect NFS lands and resources, in accordance with the
terms and conditions of mineral authorizations. Upon final adoption,
this rule would not provide the agency with the authority to retain and
spend any of the funds collected. The agency's retention and
expenditure of collected fees pursuant to this rule would need to be
authorized by Congress. The Forest Service will seek such authority in
conjunction with final adoption of this proposed rule. If Congress does
not authorize retention authority, the funds received under this rule
will be deposited in the General Treasury.
The proposed rule would require a proponent or holder to pay a
processing fee and, where applicable, a monitoring fee. The rule
creates a schedule of six categories where fees for a submitted
proposal would be based on agency work hours involved to complete
processing or to monitor an authorization. The proposed rule would also
establish a fixed fee for low-volume mineral material disposals. In
determining the appropriate processing fee, the Forest Service will
include time needed to collect all data and information needed for the
agency to: (1) fully describe the proposed use; (2) identify, evaluate,
and prepare documentation of the environmental effects of the proposed
use; and (3) make a decision or provide a required response to the
proposal. Proponents would be encouraged to fulfill documentation
aspects to the extent feasible from sources other than limited agency
resources to maintain the agency's ability to process proposals in as
efficient and timely a manner as possible. Processing tasks completed
by the proponent, or a third party would reduce the amount of time the
Forest Service spends on each case, thereby reducing the processing fee
assessed to the proponent.
The cost recovery provisions of this proposed rule would apply to
requests and applications as specified in the rule and received on or
after the effective date of a final rule. The Forest Service may
propose future rulemaking to recover other mineral program costs that
are recoverable under the IOAA.
The proposed rule would give the authorized Forest Service officer
discretion to waive all or part of processing fees in certain
circumstances, such as for disposal of mineral materials to a
government entity for a public works project.
The proposed rule would specify that a separate monitoring fee
would not be charged for proposals subject to the fixed fee. Given the
high annual number and minimal impact of these type of disposals, the
Forest Service proposes to not collect a monitoring fee in the interest
of administrative efficiency.
For authorizations issued by the Forest Service on or after the
effective date of a final rule, this rule proposes to charge fees for
monitoring compliance during the construction and reclamation phases of
the authorization. The agency's experience monitoring over 4,600
mineral operations annually indicates that the cost to process a
mineral proposal frequently has no relationship to the cost of
monitoring the activity after an authorization is issued. Proposals
that can be time consuming to process may require minimal time (or
cost) for the agency to monitor. Alternately, an action requiring
little time to process may require more time to monitor due to
sensitive resource concerns or compliance issues. Therefore, the Forest
Service proposes that the processing fee category and amount for each
case would be determined independently of the monitoring fee category
and amount; that is, the processing fee charged for non-fixed fee
authorizations would not dictate the corresponding monitoring fee
category or amount.
The processing fee for the fixed fee proposal must be paid at the
time the proposal is submitted to the Forest Service. For category 1
through 4 proposals, the authorized officer would determine the
processing fee based on the processing fee schedule. For category 5 and
6 proposals, the processing fee would be estimated on a case-by-case
basis. The fee for Category 1 through 6 proposals would be due before
the Forest Service begins processing the proposal. If the non-fixed fee
proposal is approved by the authorized officer, a monitoring fee for
the authorization would be the rate for the category determined
appropriate for the activity (or estimated on a case-specific basis for
category 5 and 6 authorizations). Payment of the monitoring fee would
be due at the time the authorization is issued. Payment of monitoring
fees for a multiyear project may be established in an agreement between
the Forest Service and the operator.
The Forest Service would publish the cost recovery fees for the fee
category schedule in the agency's directive system in Forest Service
Handbook (FSH), Minerals and Geology Handbook 2809.15 (which can be
accessed via the internet at the agency's directives home page: <a href="https://www.fs.usda.gov/im/directives/">https://www.fs.usda.gov/im/directives/</a>). Fees would be adjusted annually for
inflation.
The fees collected by the Forest Service under this rule would be
in addition to fees that may be due to another government agency for a
specific proposal.
Description of Proposed Rule by Section
A section-by-section discussion of the proposed cost recovery rule
follows.
New Subpart F
Proposed Sec. 228.200 Authority. This section identifies the IOAA
as the statutory authority for the cost recovery rule.
Proposed Sec. 228.201 Definitions. This section defines terms that
have a unique meaning within the context of the proposed rule. The
terms defined in this section allow for simplifying references to the
variety of terms used throughout mineral regulations associated with
the proposed rule.
Proposed Sec. 228.202 Cost recovery. This section implements the
authority provided for in the IOAA and OMB
[[Page 38419]]
Circular No. A-25 that directs Federal agencies to recover costs for
services provided to identifiable recipients beyond those accruing to
the general public. This section specifies requirements for the agency
to recover costs to process mineral-related proposals and to monitor
authorized mineral activities. The proposed rule would not apply to
agency costs associated with administering reserved and outstanding
mineral rights activities that may be exercised as a property right
without an authorization from the Forest Service or under the rules
found at 36 CFR 251.15.
Paragraph (a) directs the Forest Service to assess fees to recover
the agency's processing and monitoring costs for mineral proposals
pursuant to the regulations of Part 228. Fees may either be fixed or
determined from one of six processing categories. By definition, a
proposal would include applications, plans, or other requests
associated with mineral resources on NFS lands, including those
proposals filed with another government entity which require input from
the Forest Service. It would establish that cost recovery fees payable
to the Forest Service under the rule would be separate from fees
charged by other government entities. An example would be the fee
charged by the Forest Service to process a surface use plan of
operations for an oil and gas drilling permit would be separate from,
and in addition to, the permit fee the BLM collects for processing the
associated Application for Permit to Drill. The provisions of the rule
do not apply to or supersede written agreements to recover processing
costs executed by the Forest Service and a proponent prior to the
effective date of the rule.
Paragraph (b) states that cost recovery requirements of Part 228
would apply to processing proposals received on or after the effective
date of the rule (paragraph (b)(1)) and to monitoring of authorizations
issued or amended under Part 228 on or after the effective date of the
rule (paragraph (b)(2)).
Paragraph (c) outlines processing fee requirements in paragraphs
(1) through (7). The introductory paragraph would require a fee for
each proposal identified in paragraph (b) processed by the Forest
Service and states that processing fees would not include costs
incurred by the proponent to prepare information and documentation
needed by the authorized officer to take action. The paragraph would
also describe the basis for fixed fee proposals as well as for
processing category proposals. Six processing categories would be
established in this section and are based on the agency work hours
needed to process the proposal, as shown in Table 1 below.
Table 1--Proposed Processing Categories
------------------------------------------------------------------------
Processing category Federal work hours
------------------------------------------------------------------------
1................................... Up to 8.
2................................... Over 8 up to 24.
3................................... Over 24 up to 40.
4................................... Over 40 up to 64.
5 (Master Agreements)............... Varies.
6................................... Over 64.
------------------------------------------------------------------------
Paragraphs (c)(3)(ii)(A) through (F) establish that the Forest
Service and the proponent could enter into master agreements (category
5) to recover processing costs associated with a single proposal, group
of proposals, or similar proposals filed by the same proponent within a
specified geographic area. Each proposal covered by a master agreement
would be assigned its own processing fee category and rate. Master
agreements may be considered an efficient alternative to case-specific
estimates of processing time, particularly when a proponent routinely
submits proposals or has several authorizations within a defined area
or administrative unit.
Processing fees for category 5 (master agreements) and category 6
could be assessed and collected in periodic installments. The
authorized officer would estimate the processing fees for category 5
and 6 proposals on a case-specific basis and would reconcile the fees
based on the ultimate full cost to process. Upon the agency's
completion of all processing tasks for category 5 and 6 proposals, any
remaining balance of the processing fee would be either refunded to the
proponent or credited towards monitoring fee assessments. When the
estimated processing fee for category 5 and 6 proposals is lower than
the agency's costs for processing a proposal, the proponent would be
obligated to pay the difference between the estimated costs and the
agency's full costs. For all categories, a proponent's payment of the
processing fee would neither ensure nor imply agency approval of the
proposed use or occupancy. The proponent would be liable for the
agency's processing costs regardless of whether the proposal is
subsequently denied by the agency or withdrawn by the proponent.
Establishing processing fees are expected to encourage prospective
proponents to discuss their proposed use and occupancy with the Forest
Service prior to submitting a formal proposal. The agency anticipates
that this fee may also provide an incentive for proponents to better
design their proposals to meet the agency's resource management
concerns and objectives. The agency would not duplicate processing
activities to be conducted by the proponent. Proponents would be
encouraged to conduct as many of the necessary processing steps as
possible (such as collecting data; performing studies; completing
resource surveys, evaluations, and assessments; and conducting and
documenting environmental analyses), subject to review and acceptance
by the Forest Service. Having the proponent conduct these steps would
minimize the time the Forest Service needs to process a proposal and
would reduce the impact the proposal may have on limited Forest Service
resources. The applicant also would minimize the proposal processing
fee charged by the Forest Service and, in many cases, expedite the
Forest Service's processing of the proposal.
Paragraph (c)(1) provides the basis for processing fees. Paragraph
(c)(1)(i) states that fixed fees are based on a projected cost to
process proposals that are identified as being subject to a fixed fee.
In its agency directives, the Forest Service would specify that fixed
fees would apply to mineral material disposals of 25 cubic yards or
less from community pits or common use areas. This action was
identified for a fixed fee in the interest of administrative efficiency
because the Forest Service processes many of these minimal-impact
actions annually. The fixed fee amount was based on an assumed
processing cost that the Forest Service believes is a reasonable
estimate of agency effort expended on these actions. The agency will
continue to collect and analyze cost data to assess the reasonableness
of the proposed fixed fee.
Paragraph (c)(1)(ii) states that fees for the six processing
categories would be based on costs incurred by the agency to formally
acknowledge receipt and initial review of a proposal, conduct
environmental reviews and analyses, meet with the proponent, and
prepare documentation and permits, as applicable. These costs would be
specific to a project and would not include the cost of agency services
or benefits that are programmatic in nature or benefit the general
public. This paragraph would emphasize that processing work conducted
by the proponent, or a third party contracted by the proponent,
minimizes the costs the Forest Service will incur and thus would reduce
the processing fee.
Paragraph (c)(2) provides the Forest Service Handbook reference
where the
[[Page 38420]]
amounts for the fixed fee action and categories 1 through 4 would be
published. Categories 5 and 6 fees are determined on a case-by-case
basis.
Table 2 below displays the fees proposed to be implemented under
the rule. The table shows proposed fees for both the fixed fee action
and for each of the six processing categories.
Table 2--Proposed Mineral Program Cost Recovery Fees
------------------------------------------------------------------------
Action/category Proposed fee
------------------------------------------------------------------------
Low Volume (<=25 cubic yards) Mineral $65.
Material Disposal.
Category 1................................ $271.
Category 2................................ $1,084.
Category 3................................ $2,168.
Category 4................................ $3,522.
Category 5 (Master Agreements)............ Case-by-case; Determined by
agreement.
Category 6................................ Case-by-case.
------------------------------------------------------------------------
The proposed fee for low-volume mineral material disposals is based
on two Federal work hours of processing time multiplied by an hourly
rate of $32.57 per hour. The hourly rate used in the fee calculation
includes salary, leave, benefits, and indirect costs. The hourly rate
uses the 2019 salary for a Rest-of-US (RUS) General Services (GS) 5,
Step 05 Federal employee which is assumed to be representative of the
grade level of an employee typically processing low volume mineral
material disposals from existing community pits and common use areas.
To determine the proposed cost recovery fee for categories 1
through 4, an average hourly wage was multiplied by the midpoint of the
work hour range. The proposed fees are based on an average rate of
$67.74 per hour of federal work time. This is the same average hourly
wage (which includes pay additives and indirect costs) that was used in
BLM's proposed revised fee rates for its right-of-way program published
in the Federal Register on November 7, 2022 (87 FR 67306). The BLM's
processing and monitoring cost data is presumed to reasonably represent
costs incurred by the Forest Service within its minerals program
because the work involves the same types of tasks at both agencies and
is generally performed by employees at similar GS and experience
levels. Given the recurring need for minerals projects to sometimes
require a Forest Service special use authorization or a BLM right-of-
way grant, it is important to have a consistent fee structure across
agencies and programs. For this reason, the Forest Service proposes
cost recovery fee rates for minerals that will mirror BLM's proposed
revised fee rates for its right-of-way program published in the Federal
Register on November 7, 2022 (87 FR 67306).
Paragraph (c)(3) describes criteria specific to processing fee
categories for proposals not subject to a fixed fee. Paragraph
(c)(3)(i) presents a table of the six processing fee categories and the
associated Federal work hours involved. Paragraph (c)(3)(ii) provides
for the use of master agreements as an instrument to recover costs
associated with a proposal, a group of proposals, or similar proposals
for a specified geographic area. Paragraphs (c)(3)(ii)(A) through (F)
contain the minimum content requirements for a master agreement. An
example of where a master agreement may be used is in recovering costs
for processing an oil and gas Master Development Plan (Sec.
228.105(a)(1)) for multiple proposed wells. Paragraph (c)(3)(iii)
describes requirements for category 6 processing actions which include
determining fees on a case-by-case basis and the Forest Service and the
proponent entering into a written agreement that consists of a work
plan and a financial plan.
Paragraph (c)(4) states that processing costs incurred for
processing multiple proposals must be paid in equal shares or on a
prorated basis, as deemed appropriate by the authorized officer, among
the proponents involved.
Paragraph (c)(5) describes procedures for how fees for proposals
assigned to a processing category would be billed and revised.
Paragraph (c)(5)(i) states that the authorized officer would issue the
proponent a bill for the processing fee when the Forest Service is
ready to process the action. Paragraph (c)(5)(ii) states that once a
proposal is assigned to a processing category, it would not be
reclassified into a higher category unless previously undisclosed
information is discovered. Should that happen, the authorized officer
would notify the proponent in writing before continuing with processing
the proposal. The proponent has the option to accept the change, revise
the proposal, withdraw the proposal, or invoke the rule's fee dispute
procedure at Sec. 220(e).
Paragraph (c)(6) through (6)(iii) provide direction on paying
processing fees. The agency would not initiate processing a proposal
until the prescribed fee was paid in full. The fee for a proposal
subject to a fixed fee is due when the proposal is filed with the
Forest Service. For all other proposals, payment of the processing fee
is due within 30 days after the Forest Service issues a bill for the
fee. When estimated costs are lower than the final processing costs for
category 5 and 6 proposals, paragraphs (c)(6)(ii) and (iii) require
proponents to pay the difference.
Paragraph (c)(7) addresses refunds of processing fees. Paragraphs
(c)(7)(i) through (7)(iv) would specify that that processing fees for
fixed fee proposals and for categories 1 through 4 are nonrefundable
and would describe under what conditions the processing fee for
category 5 and 6 proposals would be refunded to a proponent or credited
towards monitoring fees due. If a proponent withdraws a category 5 or 6
proposal, the proponent is responsible for any costs incurred by the
Forest Service in terminating processing of the proposal.
Paragraphs (d) through (5)(iii) establish procedures for the Forest
Service to recover costs incurred to monitor compliance for
authorizations issued by the Forest Service under the 36 CFR part 228
regulations. Monitoring would be conducted at a frequency commensurate
with the work necessary to ensure compliance with the surface use
requirements of an authorization.
Paragraph (d)(1) describes the basis for monitoring fees. For
monitoring fees in categories 1 through 4, holders of approved
operating plans are assessed fees based upon the estimated time needed
for Forest Service monitoring to ensure compliance with surface use
requirements during the construction or reconstruction phase of the
approval and rehabilitation of the construction or reconstruction site.
Category 5 and category 6 monitoring fees shall be based upon the
agency's estimated costs to ensure compliance with the surface use
terms and conditions during all phases of the authorized activity,
including but not limited to monitoring to ensure compliance with
surface use requirements during the construction or reconstruction
phase of the authorization and rehabilitation of the construction or
reconstruction site. Monitoring for all categories does not include
billings, maintenance of case files, or scheduled inspections to
determine compliance generally with the terms and conditions of an
authorization.
Paragraph (d)(2) states monitoring fees for authorizations assigned
to categories 1 through 4 would be assessed from a fee schedule
published in the Forest Service directives. Monitoring fees for
category 5 and category 6 authorizations would be determined on a case-
by-case basis.
Paragraph (d)(3)(i) displays a table of the six monitoring
categories and the range of Federal work hours for each. Paragraph
(d)(3)(ii) provides
[[Page 38421]]
requirements for the use of master agreements for monitoring and
paragraph (d)(3)(iii) provides requirements for category 6 cost
recovery cases. The monitoring fee categories use the same categories
and Federal work hours as the processing fee categories.
Paragraphs (d)(4)(i) through (iii) contain requirements for billing
and paying monitoring fees. Paragraph (d)(4)(i) specifies that
monitoring fees for categories 1 through 4 must be paid in full at the
time the authorization is issued. Estimated monitoring fees for
categories 5 and 6 must also be paid in full when the authorization is
issued unless the authorized officer and the proponent agree in writing
to a payment schedule. Paragraph (d)(4)(ii) provides guidance for
reconciling category 5 cases when the estimated monitoring costs are
lower than the final actual monitoring costs and similarly, paragraph
(d)(4)(iii) provides guidance for reconciling monitoring costs for
category 6 cases.
Paragraphs (d)(5)(i) through (iii) contain requirements for refunds
of monitoring fees. Paragraph (d)(5)(i) states that monitoring fees for
categories 1 through 4 are nonrefundable. Paragraph (d)(5)(ii)
addresses reconciling monitoring fee overpayments for category 5 cases
and paragraph (d)(5)(iii) addresses reconciling overpayments for
category 6 cases.
Paragraphs (e)(1) through (5) address proponent disputes of
processing or monitoring fee assessments. Paragraph (e)(1) states that
the assessment for a fixed fee case is not subject to review under this
section. The fixed fee assessment would be established as a part of
this rulemaking process and would not subject to adjustment by an
administrative review process once the rule is finalized. Paragraph
(e)(2) allows proponents who dispute the processing or monitoring fee
category assigned by the authorized officer for category 1 through 4
cases or with the estimate of processing or monitoring costs for
category 5 and 6 cases. The paragraph states that before the disputed
fee is due, the proponent may submit a written request, along with
supporting documentation, to the immediate supervisor of the authorized
officer who made the determination for the case. Paragraphs (e)(3)(i)
and (ii) provide that if the proponent pays the disputed processing
fee, processing of the case would continue while the fee is pending the
supervisory officer's review; and if the proponent chooses not to pay
the disputed fee, the Forest Service will suspend processing the case
until the fee dispute is resolved. Paragraphs (e)(4)(i) and (ii)
provide that if the proponent pays a disputed monitoring fee, the
authorization shall be issued or use and occupancy allowed to continue
while the fee is pending the supervisory officer's review; and if the
proponent chooses not to pay the disputed fee, the Forest Service will
not issue the authorization in question or suspend the activity until
the fee dispute is resolved. Paragraph (e)(5) directs the immediate
supervisor of the authorized officer to render a decision on a disputed
fee within 30 days of receipt of the proponent's written request,
otherwise the dispute will be decided in favor of the proponent.
Paragraphs (f)(1) through (2) identify the circumstances under
which the authorized officer may waive all or part of a processing or
monitoring fee. Waiving all or any part of a fee pursuant to these
criteria would be discretionary on the part of the authorized officer
and would not be an entitlement of the proponent or holder.
Paragraph (f)(1)(i) provides for waiving fees for a local, State,
Federal or tribal governmental entity that waives similar fees for
comparable, like-kind service provided to the Forest Service.
Paragraph (f)(1)(ii) allows the authorized officer to waive part of
the processing fee when a major portion of the costs results from
issues not related to the actual project being proposed. For example, a
proposal for a mineral material sale is requested from a community pit
that lacks sufficient material to meet the request. The pit in question
is expected to experience continued demand for material from the public
and local government, so the Forest Service would like to analyze a
larger area for a pit expansion. Although the analysis is triggered by
the new proposal, the purpose of the analysis is only minimally
attributable to the proponent's proposed use and occupancy. Thus, it is
inappropriate to assess that proponent for the total cost of such an
analysis.
Paragraph (f)(1)(iii) provides for a waiver or partial waiver of
processing or monitoring fees when a proposed project is intended to
prevent or mitigate damage to real property or to mitigate hazards to
public health and safety resulting from an act of God, an act of war,
or negligence of the United States. For example, a storm destroys a
culvert crossing of a road that was constructed to provide access to an
oil and gas well located within a federal lease on NFS land. The
operator offers to replace the culvert and mitigate the associated
damages that have resulted from the storm, and the repair work requires
disturbance beyond what was authorized in the original surface use plan
of operations. The fee for processing a proposal for this work may be
waived by the authorized officer because of the public and/or agency
benefits to be realized by the proposed use (that is, mitigating
damages to National Forest System lands and resources by repairing the
culvert crossing and adjacent lands to standards established by the
Forest Service).
Paragraph (f)(1)(iv) provides for a waiver or partial waiver of
processing or monitoring fees when a proposed activity is necessary to
move a facility or improvement to a new location to comply with public
health and safety or environmental requirements that were not in effect
at the time the authorization was issued. For example, the discovery of
habitat critical to threatened or endangered species requires an
authorized officer to relocate a permitted access road for a mineral
project. The authorized officer may waive the fee to process the
holder's proposal for relocation of the road to avoid its use within
the critical habitat.
Paragraph (f)(1)(v) provides for a waiver or partial waiver where
an improvement or facility must be relocated because the land is needed
by a Federal agency or Federally funded project for an alternative
public purpose. For example, the Forest Service decides to construct a
recreational trail in a location occupied by an authorized use, such as
an access road to an oil and gas well. The new recreational trail
requires relocation of a segment of the access road to preclude user
conflicts between the operator and the recreating public. The road
relocation requires a new or amended authorization. Processing fees
associated with the operator's proposal for the authorization may be
waived by the authorized officer.
Paragraph (f)(1)(vi) provides for waiving fees for processing a
proposal or monitoring an authorization when studies undertaken in
processing the proposal have a public benefit or the proposed facility
or project would provide a free service to the public or to a USDA
program.
Paragraph (f)(2) requires that requests for waivers be in writing
and include an analysis of the applicability of the waiver criteria.
Paragraph (g) provides that decisions to assess a processing or
monitoring fee or to determine the fee category or amount are not
appealable. Paragraph (g) also would provide that a decision in
response to a disputed processing or monitoring fee is not subject to
administrative appeal.
[[Page 38422]]
Paragraph (h)(1) provides that the proposed schedules for
processing and monitoring fees applicable to mineral proposals and
authorizations would be set out in the Forest Service directive system.
This paragraph specifies that the agency will keep fee schedules
current with annual adjustments of fee rates in each cost category
using the Implicit Price Deflator-Gross Domestic Product (IPD-GDP)
index and will round up changes in the rates to the nearest dollar. The
Forest Service will strive to update fee schedules on a calendar year
basis. Fee schedules will remain in effect until updates are published
in agency directives. Because the fee recalculations per the IPD-GPD
are simply based on a mathematical formula, the Forest Service will
update the fees in the directive without opportunity for notice and
comment. In accordance with OMB Circular A-25, the Forest Service will
review user charges biennially to assure whether existing charges need
adjusting to reflect unanticipated changes in costs or market values.
Proposed Sec. 228.203 Information collection requirements. This
section states that information collected under Subpart F is required
by law or already approved for use under existing information
collection approvals for Part 228.
Proposed Changes to the Authority Listing for Part 228
The authority listing would be expanded to include references to
other statutes that mandate action by the Forest Service as surface
management agency in responding to mineral proposals as well as a
reference to the IOAA.
Proposed Changes to Subpart A--Locatable Minerals
Proposed 228.4 Plan of Operations--Notice of Intent--Requirements
Paragraph (a)(3) would be revised to state that an operator
submitting a plan of operations must pay a processing fee determined by
the authorized officer in accordance with the cost recovery
requirements of Subpart F.
Paragraph (e) would be revised to state that for each proposed
modification to an approved plan of operations an operator must pay a
processing fee determined by the authorized officer in accordance with
the cost recovery requirements of Subpart F.
Proposed 228.5 Plan of Operations--Approval
Paragraph (a)(1) would be revised to state that approval of a plan
of operations is conditioned upon the operator paying a monitoring fee
as determined by the authorized officer in accordance with the cost
recovery requirements of Subpart F.
Proposed Changes to Subpart B--Leasable Minerals
Proposed 228.20 Cost Recovery Fees. New paragraphs (a) through (c)
would be added to this Subpart to require cost recovery for costs
incurred by the Forest Service to provide responses required by law or
regulation for leasable mineral proposals. Paragraph (a) would be
specific to recovery of agency costs for responding to lease,
exploration license, and prospecting permit proposals for coal and
other solid leasable minerals which are filed with the BLM. Paragraphs
(a)(1) through (4) would prescribe the process for recovering agency
costs when the successful bidder for a competitively bid lease is
someone other than the proponent. The process described is like that
utilized by the BLM for competitive leasing of these resources.
Paragraph (b) would require recovering costs for the Forest Service to
review proposals to conduct operations for leasable minerals other than
oil and gas. This would include applications required to be filed with
the Forest Service under special legislation and those filed with the
BLM, OSMRE or a State entity with delegated coal program authority. Oil
and gas activity is excluded from this section because it is addressed
in proposed changes to Subpart E. Paragraph (c) would direct the
authorized officer to charge a monitoring fee for leasable mineral
authorizations issued by the Forest Service and required by law, but
not addressed elsewhere in Part 228, such as approval of surface use
for geothermal activity within the Newberry National Volcanic Monument.
Proposed 228.21 Information Collection. This new section would be
added to address information collection requirements of 5 CFR part
1320.
Proposed Changes to Subpart C--Disposal of Mineral Materials
Proposed 228.43 Policy governing disposal. Paragraph (b) would be
revised to state that the authorized officer will assess a fee to cover
the cost of issuing and administering a contract or permit in
accordance with the cost recovery requirements of Subpart F.
Proposed 228.51 Fees and bonding. This section would be retitled to
include the topic ``fees'' and add a new paragraph (a) to include
authority for recovery of costs for mineral material permits and
contracts in accordance with the cost recovery requirements of Subpart
F.
Proposed 228.58 Competitive Sales. A new paragraph (b) would be
added to establish requirements for competitive mineral material sales.
The Forest Service proposes to utilize a cost recovery process that
mimics that used by the BLM for its competitive mineral material sales
to account for situations where the successful bidder for a sale is
someone other than the applicant. Existing paragraphs in the section
would be redesignated to accommodate the addition of the new paragraph.
Paragraph (b)(2) in the existing rule would be redesignated as
paragraph (c)(2) and amended to state that the advertisement of sale
must specify the applicable processing and monitoring fees that a
successful bidder would be responsible for. Paragraph (d)(4) in the
existing rule would be redesignated as paragraph (e)(4) and amended to
state that a successful bidder would be required to pay the processing
and monitoring fees specified in the sale advertisement within 30 days
of receiving the sales contract.
Proposed 228.63 Removal under terms of a timber sale contract. This
paragraph would be amended to include language for the authorized
officer to charge a processing and monitoring fee in accordance with
the cost recovery requirements of Subpart F for operating plans
associated with timber sales that require the use of mineral materials
from NFS lands for various physical improvements.
Proposed Changes to Subpart E--Oil and Gas Resources
Proposed 228.106 Operator's submission of surface use plan of
operations. Paragraph (a) would be amended to include language to state
that the authorized officer shall charge a processing fee and, as
appropriate, a monitoring fee for each surface use plan of operations
in accordance with the cost recovery requirements of Subpart F.
Proposed 228.107 Review of surface use plan of operations.
Paragraph (d) would be amended to state that for decisions to approve a
surface use plan of operations, the authorized Forest officer's
notification to BLM and the operator will include the monitoring fee
that the operator must pay, in accordance with the cost recovery
requirements of Subpart F, before surface use begins if the BLM
approves the permit to drill. Paragraph (e) would be amended to state
that a supplemental surface use plan of operation shall be subject to
cost recovery and reviewed in the same manner as an initial surface use
plan of operations.
[[Page 38423]]
Regulatory Certifications
Executive Orders 12866 and 13563 Regulatory Planning and Review
This proposed rule has been reviewed under USDA procedures and
Executive Order (E.O.) 12866, on regulatory planning and review, and
the major rule provisions of the Small Business Regulatory Enforcement
and Fairness Act (5 U.S.C. 800).
The Forest Service has determined that the proposed rule will not
have an annual effect on the economy of $100 million or more. It will
not adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities. This determination is based on the Initial Regulatory
Flexibility Act (IRFA) analysis the Forest Service prepared in
conjunction with this proposed rule. For more detailed information, see
the IRFA prepared for this proposed rule. The IRFA has been posted in
the docket for the proposed rule on the Federal eRulemaking Portal:
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Searchbox, enter ``RIN 0596-AD47,''
click the ``Search'' button, open the Docket Folder, and look under
Supporting Documents. Comments are invited on the data, methodology,
and results of the Forest Service's IRFA analysis completed for the
proposed rule per the invitation and directions for public comment
provided in the summary at the beginning of this notice.
This rule will not create inconsistencies or otherwise interfere
with an action taken or planned by another agency. This proposed rule
does not change the relationships of the Forest Service's minerals
programs with other agencies' actions. These relationships are based in
law, regulation, agreements, and memoranda of understanding that would
not change with this proposed rule.
In addition, this proposed rule would not materially affect the
budgetary impact of entitlements, grants, loan programs, or the rights
and obligations of their recipients. However, this rule does propose to
create new fees for processing documents associated with the agency's
minerals programs because of the IOAA, 31 U.S.C. 9701 as well as
recommendations made by the GAO (Report No. GAO-16-165). As stated
earlier in this preamble, the IOAA authorizes the Forest Service to
charge proponents the cost of processing documents. In addition, the
IOAA states that these charges should cover the agency's costs for
these services to the degree practicable. Federal policy per OMB
Circular A-25 directs agencies to assess user charges against
identifiable recipients of special benefits derived from Federal
activities.
Finally, although this rule does not raise novel legal issues, it
is possible that it may raise novel policy issues because the agency
would charge processing and monitoring fees that the Forest Service
does not currently impose for mineral-related activity.
Regulatory Flexibility Act
For this proposed rule, fee increases for some small businesses in
the mineral materials sector are estimated to be in the range of 3
percent to 4 percent of annual receipts. The Forest Service could not
conclude that costs to that subset 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 Forest
Service has prepared an initial RFA (IRFA) analysis of the economic
impacts of the proposed rule on small entities that seek or hold
mineral-related authorizations for use and occupancy of NFS lands.
For the purposes of this section, a small entity is defined by the
Small Business Administration (SBA) for mining (broadly inclusive of
metal mining, coal mining, oil and gas extraction, and the mining and
quarrying of nonmetallic minerals) as an individual, limited
partnership, or small company considered to be at arm's length from the
control of any parent companies, with fewer than 500 employees. The SBA
defines a small entity differently, however, for leasing Federal land
for coal mining: a coal lessor is a small entity if it employs not more
than 250 people, including people working for its affiliates. The
Forest Service notes that this proposed rule does not affect service
industries, for which the SBA has a different definition of ``small
entity.''
The proposed rule is expected to have non-significant effects on a
substantial number of entities that conduct activity on NFS lands since
most fit SBA's ``small entity'' definition and nearly all of them will
face fee increases for activities on NFS lands. As presented in the
IRFA analysis prepared by the Forest Service, and available as a
supporting document for this proposed rule, except for mineral
materials, when the total estimated fees paid by these entities are
expressed as a percentage of the sales value of production from NFS
land, the relative size and effect of the fees are small and are not
expected to have a significant effect on these small entities.
When the total fee increases for leasable actions were compared to
receipt data of production from Federal leases in 2017, the fee
increases are 0.06 percent of receipts from NFS lands. Assuming the
burden of the fee increases are distributed evenly among all firms
operating on NFS lands the fee increases amounted to 0.30 percent of
receipts attributable to small entities. Similarly, the total fee
increases for locatable actions were 0.30 percent of estimated receipts
attributable to NFS lands in 2017. Again, assuming fee increases are
distributed evenly by active firms, the fee increases would be 2.11
percent of projected annual receipts from small entities engaged in
locatable mineral actions on NFS lands. These fee increases are not
expected to cause a significant impact on the small entities engaged in
leasable or locatable mineral activity on NFS lands.
Within the mineral materials program, the proposed fee increases
were estimated to be 61 percent of the total reported production value
for mineral materials disposals from NFS lands in 2017. Assuming the
burden of the fee increases is distributed evenly among all firms
operating on NFS lands, the fee increases for mineral materials
disposals amounted to 125 percent of receipts attributable to small
entities in 2017. These percentages would suggest the potential of a
significant impact on operators, including small entities, operating on
NFS lands. However, the unique nature of mineral material production on
NFS lands as being a high volume/low value commodity with involvement
of high numbers of individuals and small businesses warranted a more
detailed analysis beyond the coarse economic filter of comparing total
fee collections to total receipts.
The proposed fees for mineral materials are comprised of a fixed
fee for low volume disposals, a fee determined from a fee schedule for
moderately complex proposals, and a case-by-case fee for the most
complex proposals. For the five-year period 2015 through 2019, low
volume disposals (that is, less than 25 cubic yards per disposal) made
up approximately 83 percent of total number of mineral material
disposals from NFS land, but only 0.2 percent of total disposed volume.
Low volume disposals are largely made to entities for non-commercial
purposes, and when coupled with the low proposed flat fee for this type
of disposal, there is not expected to be a significant impact to
[[Page 38424]]
small business or governmental entities as a result of implementing the
rule.
Analysis of mineral material disposals for 2019 as a representative
year found that 240 entities requesting disposals exceeding 25 cubic
yards per disposal accounted for more than 99 percent of the total
volume of mineral material disposed from NFS lands during the year.
Disposal requests made by these 240 entities are expected to have
dominated agency time dedicated to processing mineral material requests
in 2019. However, within these 240 entities, disposal volumes, and
therefore cost recovery fees, are expected to be highly skewed toward a
small number of large operators. For example, 93 percent of the mineral
material volume disposed in 2019 was allocated to only 11 of the 240
entities, or 1 percent of all entities requesting disposals for the
year. Average disposal volume for these 11 entities ranged from 16,000
to 280,000 cubic yards per disposal request. Most of the time needed to
satisfy NEPA, and therefore process disposal requests, are expected to
be concentrated in this small subset of entities. Five of these 11
entities are large business or large governments with annual revenues
over $100 million and therefore not classified as small businesses.
Three of the entities have annual revenues between $2.7 million to
$10.7 million for whom the average annual cost of preparing an
environmental assessment would be less than 2.5 percent of annual
revenues. The remaining three entities in this subgroup are small
county governments, where proposed fees could entail significant
economic impacts but would be eligible to have fees waived under the
proposed rule waiver provisions.
The analysis further showed the 225 entities (16 percent of all
entities requesting disposals on NFS land in 2019) that requested
disposals between 25 and 16,000 cubic yards during 2019, would
experience fees amounting from 1 percent to 4 percent of annual
receipts for small businesses. Out of 225 entities, only 63 (less than
5 percent of all entities requesting disposals from NFS land in 2019)
that submitted multiple disposal requests during the year are expected
to be subject to fees in the range of 3 percent to 4 percent of annual
receipts. The Forest Service believes this low number of entities would
not constitute a substantial number of small entities experiencing a
significant economic impact.
We note that in all areas, the proposed fees are charged only once
per proposal and, therefore, generally the impact is spread over
several years of industry production. This has the effect of lessening
the impact of fees even further. In addition, bids at lease and
competitive mineral material sales reflect fair market value, so we can
expect associated bonus bids may decline in response to the increased
processing costs.
The estimate of the proposed fees for processing locatable plans of
operation did not include costs associated with a Forest Service
certified mineral examiner (CME) preparing reports that sometimes are
required to inform the authorized officer's decision on operating plans
and may have possible effects on small entities. Although the cost for
a CME to complete a mineral examination report (such as, validity exam,
mineral classification report, or surface use determination) would
increase the fee paid by a proponent to process a plan of operations,
it would not be significant compared to the capital expenditures
associated with many locatable mineral mining ventures, which may range
from hundreds of thousands of dollars for small operations to hundreds
of millions of dollars for large ventures. The smaller the entity, the
more likely the proposed plan of operations will be less complex or
involve fewer mining claims, reducing the time needed for the CME to
review and document their findings. Because fees for a proposed plan of
operations needing CME engagement are more likely to involve a case-by-
case tracking of actual agency time and costs, plans that are less
complex or involve fewer claims will generally be charged fees at the
low end of the possible range. Impacts to small entities is also less
likely because plans of operation needing a CME input are a relatively
rare occurrence. The Forest Service estimates only around two percent
of the locatable plans of operations that are processed in a year will
need a mineral examination report.
Energy Effects
The proposed rule was reviewed under E.O. 13211, Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use. The Forest Service finds the proposed rule is not likely to have a
significant effect (positive or negative) on energy supply or
distribution. The regulation would be administrative in nature and does
not impact agency decisions about leasing and subsequent development of
energy resources on NFS lands.
The proposed rule is not expected to have a significant adverse
effect on the supply, distribution, or use of energy; competition or
prices; other agency actions related to energy; or raise novel issues
regarding adverse effects on energy. The proposed rule is therefore not
expected to be a significant energy action or require a statement of
energy effects, consistent with OMB guidance for implementing E.O.
13211.
Consultation and Coordination With Indian Tribal Governments
Pursuant to E.O. 13175, the agency has assessed the impact of this
proposed rule on Indian tribal governments and expects that the
proposed rule would not have direct and substantial effects on
federally recognized Indian tribes. The proposed rule consists of
administrative procedures for recovering costs for processing and
monitoring proposals to conduct mineral activity and, as such, has no
direct effect on tribal consultation requirements for individual
mineral proposals on NFS land.
The Agency has also determined that this proposed rule would not
impose substantial direct compliance costs on Indian tribal
governments. This proposed rule does not mandate tribal participation
in the Forest Service cost recovery process, and allows for waivers of
cost recovery for tribal entities under certain circumstances.
Environmental Impact
This proposed rule would establish administrative fee categories
and procedures for charging, collecting, and reconciling fees to
process notices, requests, and proposals and monitor authorizations on
National Forest System lands per the regulations of 36 CFR part 228.
The charging of fees would have no bearing on where or how mineral
projects are conducted on NFS lands. No environmental impacts are
predicted with implementation of the rule. Forest Service National
Environmental Policy Act (NEPA) regulations at 36 CFR 220.6(d)(2)
excludes from documentation in an environmental assessment or impact
statement ``rules, regulations, or policies to establish Service-wide
administrative procedures, program processes, or instructions.'' The
agency's preliminary assessment is that this proposed rule falls within
this category of actions and that no extraordinary circumstances exist
which would require preparation of an environmental assessment or
environmental impact statement. A final determination will be made upon
adoption of the final rule.
Federalism
The agency has considered this proposed rule under the requirements
of E.O. 13132, Federalism, and has made a preliminary assessment that
the rule conforms with the Federalism
[[Page 38425]]
principles set out in the Executive Order; would not impose any
compliance costs on the States; and would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Moreover, the
cost recovery processing and monitoring fees set out in this proposed
rule may be waived or partially waived for State and local government
entities that waive similar fees they might otherwise assess the Forest
Service. The proposed rule may result in a slight decrease in bonus
bids for coal and other solid mineral leases, which are shared with the
States. Based on comments received on this proposed rule, the agency
will consider if any additional consultation will be needed with State
and local governments prior to adopting a final rule.
No Takings Implications
This proposed rule has been analyzed in accordance with the
principles and criteria contained in E.O. 12630, and it has been
determined that the proposed rule does not pose the risk of a taking of
constitutionally protected private property. The proposed rule has no
bearing on property rights, but only concerns recovery of government
processing costs for actions that benefit certain entities that acquire
rights and seek use and occupancy of NFS lands to extract publicly
owned resources. Therefore, the Forest Service has determined that the
rule would not cause a taking of private property or require further
discussion of takings implications under the Executive Order.
Civil Justice Reform Act
This proposed rule has been reviewed under E.O. 12988, Civil
Justice Reform. The Forest Service finds that this rule would not
unduly burden the judicial system. If this proposed rule were adopted,
(1) all State and local laws and regulations that are in conflict with
this proposed rule or that would impede its full implementation would
be preempted; (2) no retroactive effect would be given to this proposed
rule; and (3) it would not require administrative proceedings before
parties may file suit in court challenging its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the agency has assessed the effects of this proposed
rule on State, local, and tribal governments and the private sector.
This proposed rule would not compel the expenditure of $100 million or
more in any one year by any State, local, or tribal government or
anyone in the private sector. Therefore, a statement containing the
information required under section 202 of the Act is not required.
Controlling Paperwork Burdens on the Public
This proposed rule does not contain any new record-keeping or
reporting requirements, or other information collection requirements as
defined in 5 CFR part 1320 that are not already required by law or not
already approved for use. The information that would be collected by
the Forest Service as a result of this action have been approved by the
Office of Management and Budget (OMB) under existing Control Numbers
0596-0022 (locatable minerals), 0596-0081(mineral materials), and 0596-
0101 (oil and gas). In recovering costs for providing responses
required by law or regulation for coal and non-energy solid leasable
minerals, the Forest Service will utilize information provided under
existing OMB clearances issued to the Bureau of Land Management and the
Office of Surface Mining Reclamation and Enforcement. 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 228
Mineral resources.
Therefore, for the reasons set forth in the preamble, the Forest
Service proposes to amend part 228 of title 36 of the Code of Federal
Regulations as follows:
PART 228--MINERALS
0
1. The authority citation for part 228 is revised to read as follows:
Authority: 16 U.S.C. 478, 551; 30 U.S.C. 191, 201, 207, 226,
352, 601, 611, 1014, 1272; 31 U.S.C. 9701; 94 Stat. 2400.
0
2. Amend Sec. 228.4 by revising paragraphs (a)(3) and (e) to read as
follows:
Sec. 228.4 Plan of operations--notice of intent--requirements.
(a)* * *
(3) An operator shall submit a proposed plan of operations to the
District Ranger having jurisdiction over the area in which operations
will be conducted in lieu of a notice of intent to operate if the
proposed operations will likely cause a significant disturbance of
surface resources. An operator also shall submit a proposed plan of
operations, or a proposed supplemental plan of operations consistent
with Sec. 228.4(d), to the District Ranger having jurisdiction over
the area in which operations are being conducted if those operations
are causing a significant disturbance of surface resources but are not
covered by a current approved plan of operations. The operator must pay
a processing fee for each proposed plan of operations as determined by
the authorized officer in accordance with the cost recovery
requirements of Sec. 228 Subpart F. The requirement to submit a plan
of operations shall not apply to the operations listed in paragraphs
(a)(1)(i) through (v). The requirement to submit a plan of operations
also shall not apply to operations which will not involve the use of
mechanized earthmoving equipment, such as bulldozers or backhoes, or
the cutting of trees, unless those operations otherwise will likely
cause a significant disturbance of surface resources.
* * * * *
(e) At any time during operations under an approved plan of
operations, the authorized officer may ask the operator to furnish a
proposed modification of the plan detailing the means of minimizing
unforeseen significant disturbance of surface resources. The operator
must pay a processing fee for each proposed modification to the plan as
determined by the authorized officer in accordance with the cost
recovery requirements of Sec. 228 Subpart F. If the operator does not
furnish a proposed modification within a time deemed reasonable by the
authorized officer, the authorized officer may recommend to his
immediate superior that the operator be required to submit a proposed
modification of the plan. The recommendation of the authorized officer
shall be accompanied by a statement setting forth in detail the
supporting facts and reasons for his recommendations. In acting upon
such recommendation, the immediate superior of the authorized officer
shall determine:
* * * * *
0
3. Amend Sec. 228.5 by revising paragraph (a)(1) to read as follows:
Sec. 228.5 Plan of operations--approval.
(a) * * *
(1) Notify the operator that he has approved the plan of operations
conditioned upon payment of a monitoring fee as determined by the
authorized officer in accordance with the cost recovery requirements of
Sec. 228 Subpart F; or
* * * * *
[[Page 38426]]
0
4. Add new Sec. 228.20 to Subpart B--Leasable Minerals to read as
follows:
Subpart B--Leasable Minerals
Sec. 228.20 Cost Recovery Fees.
(a) The authorized officer shall charge applicants a fee to recover
costs to process competitive and non-competitive lease, exploration
license, and prospecting permit applications for coal or other solid
leasable minerals on National Forest System lands that are filed with
the Bureau of Land Management and require a response from the Forest
Service by law or regulation. Fees are subject to the cost recovery
requirements of Sec. 228 Subpart F. The cost recovery process for
competitive leases under this section follows:
(1) The applicant nominating coal or other solid mineral lands for
competitive leasing under this section must pay a processing fee
determined by the authorized officer in accordance with the cost
recovery requirements of Sec. 228 Subpart F, modified by the
provisions of this section. The authorized officer shall request the
Bureau of Land Management to include a statement in the notice of lease
sale of the cost recovery fee paid to the Forest Service by the
applicant up to 30 days before the competitive lease sale.
(2) The applicant nominating the tract for competitive leasing must
pay the cost recovery amount before the Forest Service takes action to
provide its response to the Bureau of Land Management.
(3) The successful bidder, if someone other than the applicant,
must pay the Forest Service the amount of Forest Service cost recovery
specified in the sale notice.
(4) If the successful bidder is someone other than the applicant,
the Forest Service will refund to the applicant the amount paid under
paragraph (b)(1) of this section.
(b) For all leasable minerals other than oil and gas, the
authorized officer shall charge proponents a fee to recover the Forest
Service's cost to process proposals to conduct operations on leases,
permits or licenses when such proposals are filed with another
government agency and require a response from the Forest Service by law
or regulation. Fees will be determined by the authorized officer in
accordance with the cost recovery requirements of Sec. 228 Subpart F.
(c) The authorized officer shall charge holders a fee to recover
monitoring costs for authorizations issued by the Forest Service which
are required by law and not addressed elsewhere in part 228. Monitoring
fees will be determined in accordance with the cost recovery
requirements of Sec. 228 Subpart F.
Sec. 228.21 Information collection requirements.
The information collection requirements of this subpart are already
approved for use through various Office of Management and Budget
information collection approvals issued to the Bureau of Land
Management for issuing and managing Federal mineral leases and to the
Office of Surface Mining Reclamation and Enforcement for managing coal
mining operations on Federal lands.
0
5. Amend Sec. 228.43 by revising paragraph (b) to read as follows:
Sec. 228.43 Policy governing disposal.
* * * * *
(b) Price. Mineral materials may not be sold for less than the
appraised value. The authorized officer shall assess a fee to cover
costs of issuing and administering a contract or permit in accordance
with the cost recovery requirements of Sec. 228 Subpart F.
* * * * *
0
6. Amend Sec. 228.51 by:
0
a. Revising the section heading; and
0
b. Redesignating paragraphs (a) and (b) as paragraphs (b) and (c) and
adding a new paragraph (a).
The revision and addition read as follows:
Sec. 228.51 Fees and Bonding.
(a) Processing fees. Applications for a permit or contract for
mineral materials shall be subject to the cost recovery requirements of
Sec. 228 Subpart F modified by the provisions of this Subpart.
Applicants will be charged a processing fee and, as applicable, a
monitoring fee determined by the authorized officer.
* * * * *
0
7. Amend Sec. 228.58 by:
0
a. Redesignating paragraphs (b), (c), and (d) as paragraphs (c), (d),
and (e) and adding new paragraph (b); and
0
b. Revising newly designated paragraphs (c)(2) and (e)(4).
The addition and revisions read as follows:
Sec. 228.58 Competitive sales.
* * * * *
(b) Fee requirements for competitive sales. For competitive sales,
the applicant requesting a mineral material sale must pay the total
processing fee up to 30 days before the sale. The cost recovery process
for a competitive mineral material sale follows:
(1) The applicant requesting the sale must pay the cost recovery
fee amount before the authorized officer will publish the invitation
for bid required in Sec. 228.58.
(2) Before the contract is issued:
(i) The successful bidder, if someone other than the applicant,
must pay to the Forest Service the cost recovery amount specified in
the invitation to bid; and
(ii) The successful bidder must pay all processing and monitoring
fees the Forest Service incurs after the date of the invitation to bid.
(3) If the successful bidder is someone other than the applicant,
the Forest Service will refund to the applicant the amount paid under
paragraph (a)(1) of this section.
(c) * * *
(2) Content of advertising. The advertisement of sale must specify
the location by legal description of the tract or tracts or by any
other means identify the location of the mineral material deposit being
offered, the kind of material, estimated quantities, the unit of
measurement, appraised price (which sets the minimum acceptable bid),
applicable processing and monitoring fees, time and place for receiving
and opening of bids, minimum deposit required, major special
constraints due to environmental considerations, available access,
maintenance required over haul routes, traffic controls, required use
permits, required qualifications of bidders, the method of bidding,
bonding requirement, notice of the right to reject any or all bids, the
office where a copy of the contract and additional information may be
obtained, and additional information the authorized officer deems
necessary.
(e) * * *
(4) Within 30 days after receipt of the contract, the successful
bidder must sign and return the contract, pay the processing and
monitoring fees specified in the sale advertisement, and provide any
required bond, unless the authorized officer has granted an extension
for an additional 30 days. The bidder must apply for the extension in
writing within the first 30-day period. If the successful bidder fails
to return the contract within the first 30-day period or within an
approved extension, the bid deposit, less the costs of re-advertising
and damages, may be returned without prejudice to any other rights or
remedies of the United States.
* * * * *
0
8. In Sec. 228.63 revise the introductory paragraph to read as
follows:
Sec. 228.63 Removal under terms of a timber sale or other Forest
Service contract.
In carrying out programs such as timber sales that involve
construction
[[Page 38427]]
and maintenance of various physical improvements, the Forest Service
may specify that mineral materials be mined, manufactured, and/or
processed for incorporation into the improvement. Where the mineral
material is located on National Forest lands and is designated in the
contract calling for its use, no permit is required as long as an
operating plan as described in Sec. 228.56 is required by the contract
provisions. The authorized officer shall charge a fee to process the
operating plan and monitor activity under the approved operating plan
in accordance with the cost recovery requirements of Sec. 228 Subpart
F.
* * * * *
0
9. Amend Sec. 228.106 by revising paragraph (a) to read as follows:
Sec. 228.106 Operator's submission of surface use plan of operations.
(a) General. No permit to drill on a Federal oil and gas lease for
National Forest System lands may be granted without the analysis and
approval of a surface use plan of operations covering proposed surface
disturbing activities. An operator must obtain an approved surface use
plan of operations before conducting operations that will cause surface
disturbance. The operator shall submit a proposed surface use plan of
operations as part of an Application for a Permit to Drill to the
appropriate Bureau of Land Management office for forwarding to the
Forest Service, unless otherwise directed by the Onshore Oil and Gas
Order in effect when the proposed plan of operations is submitted. The
authorized Forest officer shall charge the operator a processing fee
and, as appropriate, a monitoring fee, for each surface use plan of
operations in accordance with the cost recovery requirements of Sec.
228 Subpart F.
* * * * *
0
10. Amend Sec. 228.107 by revising paragraphs (d) and (e) to read as
follows:
Sec. 228.107 Review of surface use plan of operations.
* * * * *
(d) Transmittal of decision. The authorized Forest officer shall
immediately forward a decision on a surface use plan of operations to
the appropriate Bureau of Land Management office and the operator. If
the decision is to approve the plan, this transmittal shall include:
(1) The monitoring fee that would be required of the operator if
the Bureau of Land Management approves the application for permit to
drill; and
(2) The estimated cost of reclamation and restoration (Sec.
228.109(a)) if the authorized forest officer believes that additional
bonding is required.
* * * * *
(e) Supplemental plans. A supplemental surface use plan of
operations (Sec. 228.106(d)) shall be subject to cost recovery and
reviewed in the same manner as an initial surface use plan of
operations.
* * * * *
0
11. Add new Subpart F--General Cost Recovery Requirements for Minerals
to read as follows:
0
Subpart F--General Cost Recovery Requirements for Minerals
Sec. 228.200 Authority.
Authority to charge processing costs is provided by the Independent
Offices Appropriation Act of 1952, 31 U.S.C. 9701.
Sec. 228.201 Definitions.
Authorization--an approval, permit, contract, or sale issued by the
Forest Service per regulations at 36 CFR part 228.
Holder--an individual or entity that holds a valid authorization
issued by the Forest Service to conduct activity under the regulations
of this Part.
Monitoring--Actions needed to ensure compliance with the terms and
conditions of an authorization issued by the Forest Service under
regulations at 36 CFR part 228.
Operating plan--A plan of operations as provided for in 36 CFR 228,
subparts A and D, and 36 CFR 292, subparts C and G; a supplemental plan
of operations as provided for in 36 CFR part 228, subpart A, and 36 CFR
part 292, subpart G; an operating plan as provided for in 36 CFR part
228, subpart C, and 36 CFR 292, subpart G; an amended operating plan
and a reclamation plan as provided for in 36 CFR part 292, subpart G, a
surface use plan of operations as provided for in 36 CFR part 228,
subpart E; a supplemental surface use plan of operations as provided
for in 36 CFR part 228, subpart E; an operating plan and a letter of
authorization as provided for in 36 CFR part 292, subpart D; a Notice
of Intent to Conduct Geothermal Resource Exploration Operations, a
geothermal drilling permit, a utilization plan, a site license as
provided for in 43 CFR 3273; or a commercial use permit as provided for
in 43 CFR part 3200; an exploration plan or a resource recovery and
protection plan as provided for in 43 CFR, part 3400; an exploration
plan or operating plan as provided for in 43 CFR, part 3500.
Proponent--an individual or entity proposing an action associated
with mineral resources on National Forest System lands governed by the
regulations of 36 CFR part 228, 43 CFR 43 CFR part 3000, or 30 CFR
Chapter VII.
Proposal--An application, plan, or request to acquire, modify,
renew, or readjust the right to conduct activity to prospect, explore,
develop, produce, or remove mineral resources from National Forest
System lands.
Sec. 228.202 Cost recovery.
(a) Assessment of fees to recover agency processing and monitoring
costs. The Forest Service shall assess fees to recover the agency's
costs for processing proposals and monitoring authorizations pursuant
to the regulations of Part 228. Fees may be either a fixed fee or
determined from a fee category. Proponents shall submit sufficient
information for the authorized officer to estimate the number of hours
required to process their proposals or monitor their authorizations.
Cost recovery fees payable to the Forest Service under this subpart are
separate from fees that may be charged by other government entities for
mineral activity conducted on National Forest System lands such as, but
not limited to, fees collected by the Bureau of Land Management for oil
and gas Applications for Permits to Drill (APDs). The cost recovery
provisions of this section shall not apply to or supersede written
agreements providing for recovery of processing costs executed by the
agency and proponents prior to (the effective date of the rule).
(b) Proposals subject to cost recovery requirements. Cost recovery
requirements of this Part apply to:
(1) Processing of proposals received on or after (the effective
date of the rule); and
(2) Monitoring of authorizations issued or amended under this Part
on or after (effective date of the rule).
(c) Processing fee requirements. A processing fee is required for
each proposal as identified in paragraph (b)(1) of this section.
Processing fees do not include costs incurred by the proponent in
providing information, data, and documentation necessary for the
authorized officer to take action on a proposal.
(1) Basis for processing fees.
(i) Fixed fee proposals: A fixed fee is based on a projected cost
the Forest Service incurs to process proposals identified as being
subject to a fixed fee.
(ii) Processing category proposals: Processing category proposals
have fees based on an estimate of the total time for all involved
Forest Service personnel to process a proposal. The time bands for
processing categories 1 through 6 set out
[[Page 38428]]
in paragraph (c)(3)(i) of this section are based upon the costs
incurred by the Forest Service to meet with the proponent, review the
proposal, prepare or cooperate in preparing environmental analyses of
the effects of the proposal, review any applicant-generated
environmental documents and studies, conduct site visits, coordinate
with other government entities, make a determination, recommendation,
or decision on the proposal, and prepare documentation of analyses,
decisions, and authorizations. The processing fee for a proposal shall
be based only on costs necessary for processing that proposal.
``Necessary for'' means that, but for the proposal, the costs would not
have been incurred and that the costs cover only those activities
without which the proposal 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 being processed. Proportional costs for
analyses that are necessary for the proposal, such as one analysis
prepared for proposals from multiple proponents, may be included in the
processing fee. The costs incurred for processing a proposal and thus
the processing fee, depend on the complexity of the proposal; the
amount of information that is necessary for the authorized officer's
decision or response to the proposal; and the degree to which the
proponent can provide this information to the agency. Processing work
conducted by the proponent, or a third party contracted by the
proponent, minimizes the costs the Forest Service will incur to process
the proposal, and thus reduces the processing fee.
(2) Processing fee determinations. The applicable fee for
processing a proposal with a fixed fee or in categories 1 through 4
shall be assessed from a schedule published in the Forest Service
Handbook at 2809.15 (<a href="https://www.fs.usda.gov/im/directives/">https://www.fs.usda.gov/im/directives/</a>). The
processing fee for proposals in category 5 shall be established in the
master agreement (paragraph (c)(3)(ii) of this section). For category 5
and category 6 proposals, the authorized officer shall estimate the
agency's full actual processing costs on a case-by-case basis. The
estimated processing costs for category 5 and category 6 proposals
shall be reconciled as provided in paragraphs (c)(6)(ii) and (iii) and
(c)(7)(ii) and (iii) of this section.
(3) Processing fee categories for proposals not subject to a fixed
fee.
(i) Proposals are assigned to one of the fee categories 1 through 6
as follows:
Table 3--Processing Categories
------------------------------------------------------------------------
Processing category Federal work hours involved
------------------------------------------------------------------------
1................................. Estimated Federal work hours are
<=8.
2................................. Estimated Federal work hours are >8
and <=24.
3................................. Estimated Federal work hours are >24
and <=40.
4................................. Estimated Federal work hours are >40
and <=64.
5 (Master agreements)............. Varies.
6................................. Estimated Federal work hours are
>64.
------------------------------------------------------------------------
(ii) Category 5: Master agreements. The Forest Service and the
proponent may enter into master agreements for the agency to recover
processing costs associated with a particular proposal, a group of
proposals, or similar proposals for a specified geographic area. 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.
(iii) Category 6: More than 64 hours. Processing fees for category
6 proposals are determined on a case-by-case basis. The authorized
officer shall determine the issues to be addressed and shall develop
preliminary work and financial plans for estimating recoverable costs.
(4) Multiple proposals other than those covered by master
agreements (category 5). Where processing costs benefit multiple
proposals (for example, the cost of conducting an environmental
analysis or printing an Environmental Impact Statement that relates to
multiple proposals), the costs must be paid in equal shares or on a
prorated basis by each proponent involved, as deemed appropriate by the
authorized officer.
(5) Billing and revision of processing fees.
(i) Billing. For proposals assigned to a processing category, the
authorized officer will issue a bill to the proponent for the
processing fee that is due. The authorized officer shall not bill the
proponent a processing fee until the agency is prepared to process the
proposal.
(ii) Revision of processing fees. Processing fees shall not be
reclassified into a higher category once the processing fee category
has been determined. However, if the authorized officer discovers
previously undisclosed information that necessitates changing to a
higher category processing fee, the authorized officer shall notify the
proponent of the conditions prompting a change in the processing fee
category in writing before continuing with processing the proposal. The
proponent may accept the revised processing fee category and pay the
difference between the previous and revised processing categories;
withdraw the proposal; revise the project to lower the processing
costs; or request a review of the disputed fee as provided in
paragraphs (e)(1) through (4) of this section.
(6) Payment of processing fees. (i) Payment of the processing fee
for a fixed fee proposal is due when the proposal is filed with the
Forest Service. For all other proposals, payment of a processing fee
shall be due within 30 days of issuance of a bill for the fee, pursuant
to paragraph (c)(5) 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. Payment of the processing fee
by the proponent does not obligate the Forest Service to authorize,
approve, or consent to, or otherwise make determinations in favor of
the proponent's activity as proposed.
(ii) For category 5 cases, when the estimated processing costs are
lower than the final processing costs for proposals covered by a master
agreement, the proponent 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, the
proponent shall pay the difference between the estimated and full
actual processing costs.
(7) Refunds of processing fees. (i) Processing fees for fixed fee
proposals or for proposals designated in 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 covered by a
master agreement, the authorized officer either shall refund the excess
payment to the proponent or, at the proponent'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, the authorized
officer either shall refund the excess payment to the proponent or,
[[Page 38429]]
at the proponent's request, shall credit it towards monitoring fees
due.
(iv) For category 5 and category 6 proposals, a proponent whose
request is denied or withdrawn in writing is responsible for costs
incurred by the Forest Service in processing the proposal up to and
including the date the agency denies the proposal, or receives written
notice of the proponent's withdrawal. When a proponent withdraws a
category 5 or category 6 proposal, the proponent also is responsible
for any costs subsequently incurred by the Forest Service in
terminating consideration of the proposal.
(d) Monitoring fee requirements. A monitoring fee will not be
charged for proposals subject to a fixed fee. For all other proposals
that are authorized by the Forest Service under this part, the
monitoring fee for an authorization shall be assessed independently of
any fee charged for processing the proposal pursuant to paragraph (c)
of this section. Payment of the monitoring fee is due upon issuance of
the authorization or per the terms of a master agreement.
(1) Basis for monitoring fees. For monitoring fees in categories 1
through 4, holders of authorizations are assessed fees based upon the
estimated time needed for Forest Service monitoring to ensure
compliance with surface use requirements during the construction or
reconstruction phase of the authorization and rehabilitation of the
construction or reconstruction site. Category 5 and category 6
monitoring fees shall be based upon the agency's estimated costs to
ensure compliance with the surface use terms and conditions during all
phases of the authorized activity, including but not limited to
monitoring to ensure compliance with surface use requirements during
the construction or reconstruction phase of the authorization and
rehabilitation of the construction or reconstruction site. Monitoring
for all categories does not include billings, maintenance of case
files, or scheduled inspections to determine compliance generally with
the terms and conditions of an authorization.
(2) Monitoring fee determinations. The applicable fee for
monitoring compliance with authorizations in categories 1 through 4
(paragraphs (d)(3)(i) of this section) shall be assessed from a
schedule published in the Forest Service Handbook at 2809.15. The
monitoring fee for authorizations in category 5 shall be established in
the master agreement (paragraph (d)(3)(ii) of this section). For
category 5 and category 6 (paragraph (d)(3)(iii) of this section)
cases, the authorized officer shall estimate the agency's monitoring
costs on a case-by-case basis. The estimated monitoring costs for
category 5 and category 6 cases shall be reconciled as provided in
paragraphs (d)(4)(ii) and (iii) and (d)(5)(ii) and (iii) of this
section.
(3) Monitoring fee categories. (i) Authorizations are assigned to a
fee category as follows:
Table 4--Monitoring Categories
------------------------------------------------------------------------
Monitoring category Federal work hours involved
------------------------------------------------------------------------
1...................................... Estimated Federal work hours
are <=8.
2...................................... Estimated Federal work hours
are >8 and <=24.
3...................................... Estimated Federal work hours
are >24 and <=40.
4...................................... Estimated Federal work hours
are >40 and <=64.
5 (Master agreements).................. Varies.
6...................................... Estimated Federal work hours
are >64.
------------------------------------------------------------------------
(ii) Category 5: Master agreements. The Forest Service and the
holder of an authorization may enter into a master agreement for the
agency to recover monitoring costs associated with a particular
authorization or by a group of authorizations for a specified
geographic area. A master agreement shall at a minimum include:
(A) The fee category or estimated monitoring costs;
(B) A description of the method for periodic billing, payment, and
auditing of monitoring fees;
(C) A description of the geographic area covered by the agreement;
(D) A monitoring work plan and provisions for updating the work
plan;
(E) Provisions for reconciling differences between estimated and
final monitoring costs; and
(F) Provisions for terminating the agreement.
(iii) Category 6: More than 64 hours. The Forest Service shall
develop a preliminary work plan and financial plan on agency resources
needed to monitor compliance with the terms and conditions of the
authorization during all phases of its term, including any additional
time for rehabilitation of the site. The Forest Service and the
proponent must enter into a written agreement that describes the Forest
Service monitoring activity for the authorization. The final agreement
will consist of a work plan and a financial plan.
(4) Billing and payment of monitoring fees.
(i) The authorized officer shall estimate the monitoring costs and
shall notify the holder of the required fee. Monitoring fees in
categories 1 through 4 must be paid in full before or at the same time
the authorization is issued. For authorizations in category 5 and
category 6, the estimated monitoring fees must be paid in full before
or at the same time the authorization is issued, unless the authorized
officer and the applicant or holder agree in writing to a payment
schedule.
(ii) For category 5 cases, when the estimated monitoring costs are
lower than the final monitoring costs for proposals covered by a master
agreement, the holder shall pay the difference between the estimated
and final monitoring costs.
(iii) For category 6 cases, when the estimated monitoring fee is
lower than the full actual costs of monitoring an authorization, the
proponent shall pay the difference in the next scheduled payment, or
the authorized officer shall bill the holder for the difference between
the estimated and full actual monitoring costs. Payment shall be due
within 30 days of receipt of the bill.
(5) Refunds of monitoring fees.
(i) Monitoring fees for categories 1 through 4 are nonrefundable
and shall not be reconciled.
(ii) For category 5 cases, if payment of the monitoring fee exceeds
the agency's final monitoring costs for the activities covered by a
master agreement, the authorized officer shall either adjust the next
scheduled payment to reflect the overpayment or refund the excess
payment to the holder.
(iii) For category 6 cases, if payment of the monitoring fee
exceeds the full actual costs of monitoring an authorization, the
authorized officer shall either adjust the next scheduled payment to
reflect the overpayment or refund the excess payment to the holder.
(e) Proponent or holder disputes concerning processing or
monitoring fee assessments; requests for changes in fee categories or
estimated costs.
(1) The amount of a fixed fee assessment is not subject to review
under this section.
(2) If a proponent or holder disagrees with the processing or
monitoring fee category assigned by the authorized officer for
categories 1 through 4 or, in the case of processing or monitoring for
categories 5 and 6, with the estimated dollar amount of the processing
or monitoring costs, the proponent or holder may submit a written
request before the disputed fee is due for
[[Page 38430]]
substitution of an alternative fee category or alternative estimated
costs. The written request must be submitted to the immediate
supervisor of the authorized officer who determined the fee category or
estimated costs. The proponent or holder must provide documentation
that supports the alternative fee category or estimated costs.
(3) In the case of a disputed processing fee:
(i) If the proponent pays the full disputed processing fee, the
authorized officer shall continue to process the proposal during the
authorized officer's immediate supervisor's review of the disputed fee,
unless the proponent requests that the processing cease.
(ii) If the proponent fails to pay the full disputed processing
fee, the authorized officer shall suspend further processing of the
proposal pending the authorized officer's immediate supervisor's
determination of an appropriate processing fee and the proponent's
payment of that fee.
(4) In the case of a disputed monitoring fee:
(i) If the proponent or holder pays the full disputed monitoring
fee, the authorized officer shall issue the authorization or allow the
use and occupancy to continue during the supervisory officer's review
of the disputed fee, unless the proponent or holder elects not to
exercise the authorized use and occupancy of National Forest System
lands during the review period.
(ii) If the proponent or holder fails to pay the full disputed
monitoring fee, the authorized officer shall not issue a new
authorization or shall suspend the activity in whole or in part pending
the supervisory officer's determination of an appropriate monitoring
fee and the proponent's or holder's payment of that fee.
(5) The authorized officer's immediate supervisor shall render a
decision on a disputed processing or monitoring fee within 30 calendar
days of receipt of the written request from the proponent or holder.
The supervisory officer's decision is the final level of administrative
review. The dispute shall be decided in favor of the proponent if the
supervisory officer does not respond to the written request within 30
days of receipt.
(f) Waivers of processing and monitoring fees. (1) All or part of a
processing or monitoring fee may be waived, at the sole discretion of
the authorized officer, when one or more of the following criteria are
met:
(i) The proponent is a local, State, Federal, or tribal
governmental entity that does not charge processing or monitoring fees
for comparable services the proponent provides to the Forest Service;
(ii) A major portion of the processing costs results from issues
not related to the project being proposed;
(iii) The proposal is for a project intended to prevent or mitigate
damage to real property, or to mitigate hazards or dangers to public
health and safety resulting from an act of nature, an act of war, or
negligence of the United States;
(iv) The proposal is for a new authorization to relocate facilities
or activities to comply with public health and safety or environmental
laws and regulations that were not in effect at the time the
authorization was issued;
(v) The proposal is for a new authorization to relocate facilities
or activities because the land is needed by a Federal agency or for a
Federally funded project for an alternative public purpose; or
(vi) The proposed facility, project, or use will provide, without
user or customer charges, a valuable benefit to the general public or
to the programs of the Secretary of Agriculture.
(2) A proponent'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) Appeal of decisions. (1) A decision by the authorized officer
to assess a processing or monitoring fee or to determine the fee
category or estimated costs is not subject to administrative appeal.
(2) A decision by an authorized officer's immediate supervisor in
response to a request for substitution of an alternative fee category
or alternative estimated costs likewise is not subject to
administrative appeal.
(h) Processing and monitoring fee schedules. The Forest Service
shall maintain schedules for processing and monitoring fees in its
directive system at Forest Service Handbook 2809.15 (<a href="https://www.fs.usda.gov/im/directives/dughtml/fsh.html">https://www.fs.usda.gov/im/directives/dughtml/fsh.html</a>). The rates in the
schedules shall be updated annually by using the annual rate of change,
second quarter to second quarter, in the Implicit Price Deflator-Gross
Domestic Product (IPD-GDP) index. The Forest Service shall round the
changes in the rates either up or down to the nearest dollar. In the
event the schedules are not updated in a particular year, the fee
schedules published in the directives will remain in effect until the
updates are published in the agency directives.
Sec. 228.203 Information collection requirements.
The rules of this subpart specify information that proponents or
applicants for mineral authorizations or holders of existing
authorizations must provide to allow an authorized officer to recover
costs to process a request or to monitor an authorization. The
information collected under this subpart is already required by law or
approved for use through the information collection requirements under
Subparts A through E of this part. Therefore, these rules contain
information collection requirements as defined in 5 CFR part 1320.
Forest Service information collection requirements for its minerals
regulations have been assigned Office of Management and Budget (OMB)
Control Numbers 0596-0022, 0596-0081, and 0596-0101.
Dated: May 25, 2023
Andrea Delgado,
Chief of Staff, Natural Resources and Environment.
[FR Doc. 2023-11622 Filed 6-12-23; 8:45 am]
BILLING CODE 3411-15-P
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</html>Indexed from Federal Register on June 13, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.