Land Uses; Special Uses; Recovery of Costs for Processing Special Use Applications and Monitoring Compliance With Special Use Authorizations, 8892-8920 [06-1444]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 71, Number 34 (Tuesday, February 21, 2006)]
[Rules and Regulations]
[Pages 8892-8920]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1444]



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Part II





Department of Agriculture





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Forest Service



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36 CFR Part 251



Land Uses; Special Uses; Recovery of Costs for Processing Special Use 
Applications and Monitoring Compliance With Special Use Authorizations; 
Final Rule

Federal Register / Vol. 71 , No. 34 / Tuesday, February 21, 2006 / 
Rules and Regulations

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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 251

RIN 0596-AB36


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

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department is adopting final regulations for recovering 
costs associated with processing applications for special use 
authorizations to use and occupy National Forest System lands and 
monitoring compliance with these special use authorizations. This final 
rule provides the agency with the regulatory authority to implement 
provisions in several statutes that authorize the Forest Service to 
collect fees to recover administrative costs associated with managing 
special uses on National Forest System lands. The provisions of this 
rule apply to applications and authorizations for use of National 
Forest System lands, including situations in which the land use fee may 
be waived or exempted, such as facilities financed or eligible to be 
financed with a loan pursuant to the Rural Electrification Act of 1936, 
as set forth in Public Law 98-300, and applications and authorizations 
involving Federal, State, and local governmental entities. The 
provisions of this rule do not apply to applications and authorizations 
for noncommercial group uses; applications and authorizations for 
recreation special uses, identified in Forest Service Handbook 2709.11, 
Chapter 50, by use codes 111 through 165, requiring 50 hours or less to 
process or monitor; and other uses specifically exempted by law or 
regulation. The rates established in this rule are the same as those 
adopted by BLM in its final right-of-way rule published in the Federal 
Register (70 FR 20969, Apr. 22, 2005).

EFFECTIVE DATE: This rule is effective March 23, 2006.

FOR FURTHER INFORMATION CONTACT: Maryann Kurtinaitis, Lands Staff, 
(202) 205-1264, or Carolyn Holbrook, Recreation and Heritage Resources 
Staff, (202) 205-1399, USDA, Forest Service.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Background
    Special Uses Program
    Need for Cost Recovery
    Use of Cost Recovery Fees
2. Public Comments on the Proposed Rule
    Overview
    Response to General Comments
    Response to Comments on the Supplementary Information Section in 
the Preamble to the Proposed Rule
    Response to Comments on Specific Sections of the Proposed Rule
3. Final Processing and Monitoring Fee Schedules
4. Authority
5. Regulatory Certifications
    Environmental Impact
    Regulatory Impact
    Cost-Benefit Analysis
    Regulatory Flexibility Analysis
    Federalism
    No Takings Implications
    Civil Justice Reform
    Unfunded Mandates
    Energy Effects
    Consultation With Tribal Governments
    Controlling Paperwork Burdens on the Public
6. Revisions to 36 CFR Part 251, Subpart B
7. Summary and Comparison of Provisions in the Proposed and Final 
Rules

1. Background

Special Uses Program

    Approximately 74,000 special use authorizations are in effect on 
National Forest System (NFS) lands, authorizing a variety of activities 
that range from individual private uses to large-scale commercial 
facilities and public services. Examples of authorized special uses 
include public and private road rights-of-way, apiaries, domestic water 
supply conveyance systems, telephone and electric service rights-of-
way, oil and gas pipeline rights-of-way, communications facilities, 
hydroelectric power-generating facilities, ski areas, resorts, marinas, 
municipal sewage treatment plants, and public parks and playgrounds. 
The agency estimates that it receives approximately 6,000 applications 
for special use authorizations each year. Each application is subject 
to some level of environmental analysis. For many cases, the collection 
of data, consultations, and scoping associated with the analysis and 
decisionmaking process can be costly in terms of both time and 
resources.

Need for Cost Recovery

    Requirements of the National Environmental Policy Act, the 
Wilderness Act of 1964, the Endangered Species Act, the National 
Historic Preservation Act of 1966, additional requirements of the 
Federal Land Policy and Management Act of 1976, Executive Order 11990 
(Floodplains), and Executive Order 11998 (Wetlands) directly affect the 
manner in which special use proposals must be evaluated and how 
authorizations are conditioned and administered. Compliance with these 
statutory authorities and Executive orders often can require extensive 
analysis and documentation of the impacts of use and occupancy on a 
wide array of environmental, cultural, and historical resources. As a 
result, processing applications for authorizations for new uses and 
reauthorizing existing uses often can become time-consuming and 
expensive for the Forest Service, applicants, and holders of 
authorizations. These impacts were a major factor in the development of 
amendments to the agency's regulations at 36 CFR part 251, subpart B, 
promulgated November 30, 1998 (63 FR 65949), to streamline the manner 
in which proposals and applications for special uses are processed and 
authorizations are administered.
    Despite these streamlining procedures, the agency is finding it 
increasingly difficult to provide timely reviews and evaluations of 
special use applications due to limited appropriations and staffing. 
The result is a growing backlog of applications for new uses and a 
growing number of expired authorizations for existing uses. The agency 
is increasingly unable to respond in a manner that meets the needs and 
expectations of special use applicants and authorization holders.
    In the past 10 years, the Government Accountability Office (GAO) 
and the U.S. Department of Agriculture's Office of Inspector General 
have conducted more than 15 reviews or audits of various aspects of the 
Forest Service's special uses program. Two of the more recent audits, 
GAO Report RCED-96-84 (April 1996) and GAO Report 
RCED-97-16 (December 1996), recommended that the Forest 
Service (1) operate its special uses program in a more businesslike 
manner and (2) promulgate regulations to exercise statutory authorities 
to recover from applicants and holders the agency's costs to process 
special use applications and monitor compliance with special use 
authorizations.
    In April 1997, the Forest Service completed a reengineering study 
of its special uses program. The study identified changes needed to 
manage the program in a more businesslike and customer service-oriented 
manner. The study also cited the need for regulations enabling the 
agency to exercise its cost recovery authorities. Recovery of 
processing and monitoring costs will provide additional funding for the 
agency to respond more promptly to special use applications, to take 
action on expired authorizations, to monitor compliance with 
authorizations more effectively, and to satisfy the needs and 
expectations of applicants and holders.

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Use of Cost Recovery Fees

    The Forest Service will use the processing and monitoring fees paid 
by applicants to fund the time and resources that the agency spends on 
the decisionmaking process in response to applications for the use and 
occupancy of NFS lands; to prepare and issue special use authorizations 
when the agency decides to authorize the proposed use and occupancy; 
and to monitor compliance with the terms and conditions of special use 
authorizations.
    The final rule will require an applicant or holder to pay a 
processing fee and, where applicable, a monitoring fee. The final rule 
will establish categories to be assigned on a case-by-case basis to the 
processing of each special use application and to the monitoring of 
compliance with each authorization. These categories are based on the 
estimated number of hours that agency personnel will spend in 
conducting activities directly related to processing an application and 
monitoring compliance with an authorization.
    This final Forest Service cost recovery rule is consistent with 
statutes that authorize the use and occupancy of NFS lands and the 
Independent Offices Appropriations Act of 1952 (IOAA), as amended (31 
U.S.C. 9701). The IOAA provides that Federal agencies should recover 
the costs they incur in providing specific benefits and services to an 
identifiable recipient beyond those provided to the general public, 
with an exception for official government business. Subsequent 
statutes, such as section 504(g) of the Federal Land Policy and 
Management Act of 1976 (FLPMA) (43 U.S.C. 1764(g)) and section 28(l) of 
the Mineral Leasing Act of 1920 (MLA), as amended (30 U.S.C. 184(1)), 
provide more specific authority to the Forest Service to recover costs 
associated with processing an application and monitoring an 
authorization. The Forest Service's processing of a special use 
application provides a specific benefit and service to applicants for 
new authorizations and to those proposing modifications to existing 
authorizations. The service and benefit provided consist of the 
agency's review and consideration of requests to use and occupy NFS 
lands. Likewise, monitoring activities for which cost recovery fees are 
charged, as enumerated in Sec.  251.58(d)(1) of the final rule, provide 
a specific benefit to holders in the form of actions necessary to 
ensure, in the case of minor category authorizations, compliance with 
the terms and conditions of the authorization during construction or 
reconstruction of temporary or permanent facilities and rehabilitation 
of the construction or reconstruction site and, in the case of major 
category authorizations, compliance with the terms and conditions of 
the authorization during all phases of its term. The final processing 
and monitoring fee schedules are set out in tables in section 3 of this 
final rule. A comparison of the provisions in the proposed and final 
rules appears in section 7 at the end of this final rule.

2. Public Comments on the Proposed Rule

Overview

    On November 24, 1999, the Forest Service published a proposed rule 
in the Federal Register (64 FR 66342) and sought public comment on 
adopting regulations for the recovery of costs for processing special 
use applications and monitoring compliance with special use 
authorizations. The notice explained that the proposed rule would apply 
to applications and authorizations for use of NFS lands, including 
situations where the land use fee may be exempted or waived, and to 
applications and authorizations involving Federal, State, and local 
governmental entities. The notice further explained that the proposed 
rule would not apply to applications or authorizations for 
noncommercial group uses and other uses specifically exempted, or where 
processing and monitoring fees were being collected by another Federal 
agency on behalf of the Forest Service. The notice provided for a 60-
day public comment period that ended on January 24, 2000.
    During the 60-day comment period, the agency received 11 requests 
for an extension of the comment period. Respondents indicated that 
additional time was needed due to the complexity of the proposed 
regulations and the occurrence of the holiday season. Although the 
Forest Service did not agree that the proposed regulation was complex, 
the agency twice extended the comment period by notice in the Federal 
Register (64 FR 72971, Dec. 29, 1999, and 65 FR 10042, Feb. 25, 2000), 
so that the comment period finally ended on March 9, 2000.
    To ensure the widest possible public review of the proposed 
regulations, the Forest Service conducted a series of eight public 
meetings between January 4 and March 6, 2000. Forest Service staff at 
the national and regional levels explained the proposed regulatory 
provisions and answered questions posed by the attendees. Approximately 
250 persons attended those meetings. The agency's regional offices also 
were encouraged to notify all authorization holders of record of the 
proposed cost recovery regulations and the dates and times of the 
regional public meetings. In addition, a list of associations and 
organizations provided by the Bureau of Land Management (BLM), whose 
membership includes special use authorization holders, were notified of 
the proposed regulation by either letter or electronic mail. These 
addressees were directed to the agency's World Wide Web site where the 
proposed regulation, press release, and questions and answers 
pertaining to cost recovery were posted.
    The Forest Service received 602 letters or electronic messages in 
response to the proposed rule. The 602 respondents represented 38 
States and the District of Columbia. Each respondent was grouped in one 
of the following categories:

------------------------------------------------------------------------
                Respondent category                   Number    Percent
------------------------------------------------------------------------
Authorization holder..............................        275         46
Commercial entity.................................         29          5
Environmental organization........................          1         <1
Trade/special interest organization...............         59         10
Private individual................................        173         29
Forest Service employee...........................         14          2
Federal agency....................................          9          1
State or local governmental agency................         34          6
Member of Congress................................          2         <1
Unknown...........................................          6         <1
                                                   ------------
    Total.........................................        602        100
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    Two special use authorization holder groups accounted for the 
majority of the comments on the proposed rule. The 194 responses from 
outfitters and guides (those holders providing commercial recreation 
services on the National Forests) or entities writing in behalf or in 
support of outfitters and guides represented 32 percent of the total 
number of responses. Almost all of those 194 responses were in the form 
of a standardized letter. The 77 responses from holders of 
authorizations for recreation residences (privately owned homes 
occupying NFS lands), or entities writing in behalf or in support of 
recreation residence holders, represented 13 percent of the total 
number of responses.
    Most respondents offered only general comments supporting or not 
supporting the proposed rule. Twenty-four respondents stated that they 
supported the proposed rule; 38 stated that they would support the 
proposed rule if certain modifications were made; 406 respondents 
stated, or their comments

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implied, that they did not support the proposed rule or the general 
concept of cost recovery; and the remaining 134 respondents were either 
noncommittal concerning cost recovery or not responsive to the issues 
presented in the proposed regulation. Responses categorized as 
nonresponsive to the Federal Register notice included comments on other 
Federal Register notices published by the Forest Service, such as the 
roads policy and the roadless area conservation initiative, or comments 
expressing a dislike for the Forest Service or the Federal Government 
in general. Most of those supporting the proposed rule do not hold a 
special use authorization, while the majority of those opposing the 
rule were special use authorization holders.

Response to General Comments

    In more than 300 comments, respondents offered recommendations in 
their support of the proposed rule or explained their opposition to the 
proposed rule. These comments did not address a specific section of the 
proposed rule, but rather dealt generally with the issue of cost 
recovery and the Forest Service's special uses program. These comments 
and the Department's responses have been grouped into 8 major 
categories.
    Comment. Adoption of cost recovery regulations should prompt the 
agency to conduct the special uses program in a more businesslike, 
consistent, and equitable manner. Some respondents were concerned that 
implementation of cost recovery without limits on the amount of fees to 
be charged would lead to an uncontrolled bureaucracy. Many respondents 
urged that the agency adopt strong customer service standards to ensure 
that officials implementing the regulations treat applicants and 
holders fairly, promptly, and consistently. A timely response to an 
application was important to respondents, which suggested that the 
final rule should clarify how the agency would improve its 
responsiveness and business practices. Several respondents recommended 
that the agency specify in the final rule how much time the agency 
would take to process applications.
    Response. The Department agrees that improvements in management of 
the special uses program are needed, and the Forest Service is 
aggressively working to achieve that goal. The reengineering study of 
the special uses program conducted by the agency from 1994 through 
1997, which is described in the preamble (SUPPLEMENTARY INFORMATION) to 
the proposed rule and referenced in this section of the final rule, 
provided the impetus for improving the agency's management of its 
special uses program. One outcome of the study was the adoption of the 
special uses streamlining regulation on November 30, 1998 (63 FR 
65949). That regulation has helped reduce costs to applicants and 
holders and allows the agency to provide more customer-oriented 
service. A second product from the study involved the addition of two 
new special use authorization categorical exclusion categories (69 FR 
40591, Jul. 6, 2004) to its procedures for implementing the National 
Environmental Policy Act (NEPA). These new categorical exclusion 
categories are intended to simplify documentation and analysis where 
experience has shown there are no significant environmental effects 
associated with applications that involve only an administrative change 
to an existing authorization, thus reducing the time and funding needed 
to process these types of special use applications. These final cost 
recovery regulations represent one more step in the agency's continuing 
effort to streamline its processes and be more responsive to its 
special uses customers.
    Further, the Department is incorporating customer service standards 
in Sec.  251.58(c)(7) of the final rule that will apply to all 
applications processed under these cost recovery regulations. Under 
these customer service standards, the Forest Service will endeavor to 
make a decision on an application that falls into minor processing 
category 1, 2, 3, or 4, and that is subject to a categorical exclusion 
pursuant to NEPA, within 60 calendar days from the date of receipt of 
the processing fee. If the application cannot be processed within the 
60-day period, then prior to the 30th calendar day of the 60-day 
period, the authorized officer will notify the applicant in writing of 
the reason why the application cannot be processed within the 60-day 
period and will provide the applicant with a projected date when the 
agency plans to complete processing the application. For all other 
applications, including all applications that require an environmental 
assessment or an environmental impact statement, the authorized officer 
will, within 60 calendar days of acceptance of the application, notify 
the applicant in writing of the anticipated steps and timeframes that 
will be needed to process the application. The Forest Service will 
endeavor to process applications that are subject to a waiver of or 
exempt from cost recovery fees in the same manner as applications 
subject to cost recovery fees. However, the Forest Service cannot 
commit to the customer service standards for these applications since 
the resources necessary to process them will be subject to the 
availability of appropriated funding.
    Comment. The agency must be accountable for the cost recovery funds 
it receives. Many respondents said that they were skeptical that the 
Forest Service would be accountable for funds received from cost 
recovery. Some respondents supported the cost recovery concept with the 
expectation that the funds collected would result in an increased level 
of service and equal access by all submitting applications. Others 
stated that the fees collected must be commensurate with the agency's 
cost of processing an application or monitoring an authorization.
    Response. The Department shares these respondents' concerns. All 
cost recovery funds will remain at the local agency offices that 
collect them and will be used specifically for processing applications 
or monitoring authorizations. The agency will develop performance 
metrics to measure costs and timeframes for processing applications at 
the unit level against specified performance standards and report these 
to Congress as required by Section 331 of the Interior and Related 
Agencies Appropriations Act of November 29, 1999 (Pub. L. 106-113). The 
agency will also provide local offices with guidance on fiscal 
accountability and auditing processes specific to cost recovery. The 
agency will implement direction and train agency personnel on fiscal 
and accounting procedures for determining, collecting, and spending 
cost recovery funds. In addition, applicants and holders will be given 
the opportunity to dispute assessments of processing and monitoring 
fees. The final rule will provide applicants and holders with the 
opportunity to dispute a cost recovery fee, on a case-by-case basis, by 
submitting a written request to change the fee category or estimated 
costs to the immediate supervisor of the authorized officer who 
determined the fee category or estimated costs.
    To those respondents who doubted that cost recovery would improve 
the Forest Service's responsiveness to special use applicants, the 
Department reiterates its previously stated customer service standards. 
Under these standards, authorized officers will be directed to 
communicate with applicants within a specified time frame about the 
status of processing their applications and to estimate when a

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decision will be made regarding their applications.
    Comment. Holders already pay a land use fee that should include the 
costs of application processing and permit monitoring. Many respondents 
stated that the annual land use fee they pay covers the agency's cost 
to process their applications and monitor their authorizations. Some 
respondents believed that cost recovery fees constitute a tax on 
applicants and holders and suggested that the agency recover its costs 
through improved efficiency. Recreation residence authorization holders 
stated that they were being unfairly singled out in the proposed 
regulation because they must pay a higher annual land use fee due to 
recent appraisals of the market value of their use of Federal lands, 
and under the proposed rule also would be expected to pay cost recovery 
fees. Holders of outfitting and guiding permits noted that they already 
pay 3 percent of their gross revenues to the agency to operate a 
business on NFS lands, and that this payment should be adequate to 
cover the cost to process their applications and monitor their 
authorizations.
    Response. The statutes that authorize cost recovery and Office of 
Management and Budget (OMB) Circular No. A-25, which implements the 
IOAA, clearly distinguish between land use fees and administrative 
costs. Land use fees are charged to the holder of a special use 
authorization based upon the market value of the holder's use and 
occupancy of Federal lands. Land use fees do not include the agency's 
administrative costs to process applications or monitor authorizations. 
Section 251.58(a) of the final rule specifically states that cost 
recovery fees are separate from any land use fees charged for the use 
and occupancy of NFS lands. Additionally, almost all the land use fees 
the Forest Service collects cannot be retained and expended by the 
agency and therefore are not available for processing or monitoring 
special use authorizations.
    In most cases, the effect of the cost recovery regulations on 
recreation residence permit holders will be minimal and considerably 
less than the effects on applicants for and holders of authorizations 
for most of the other special uses covered by the final rule. The final 
rule exempts recreation special use applications or authorizations 
requiring 50 hours or less to process or monitor. Recreation residences 
are defined as a recreation special use in the agency's directive 
system. Recreation residence special use permits are typically issued 
for a 20-year term. Upon expiration of a recreation residence permit, a 
new permit is, in all but a few cases, issued to the existing holder 
with no changes in the current use and occupancy. Thus, in almost every 
case, an application for a new recreation residence permit will require 
50 hours or less to process and will, therefore, be exempt from a 
processing fee. In addition, under the final rule, a recreation 
residence permit holder will be assessed a monitoring fee only if 
monitoring compliance with the holder's authorization requires more 
than 50 hours.
    Comment. Applicants and holders already pay taxes that should cover 
the agency's cost to process applications and monitor compliance with 
authorizations. These respondents believed that their Federal taxes, 
paid into the U.S. Treasury and Congressionally appropriated for 
Federal programs, should be sufficient for the Forest Service to 
administer its special uses program. Respondents stated they would be 
taxed twice if required to pay cost recovery fees. Some respondents 
believed that cost recovery fees should be levied on commercial or 
profit-making entities, but that nonprofit entities should not have to 
pay because they are otherwise relieved of taxation.
    Response. The Department disagrees with the respondents. The 
language in applicable statutes and OMB Circular No. A-25 is clear: 
identifiable recipients who receive specific benefits or services from 
a Federal agency beyond those received by the public generally may be 
charged for those benefits or services. The Department believes that 
the promulgation of this final rule is fully consistent with applicable 
law and that no revisions to the rule or other actions are needed to 
address these concerns. Like other entities, nonprofit entities may 
qualify for a waiver of cost recovery fees, as described in the section 
of the preamble pertaining to Sec.  251.58(f) of the final rule.
    Comment. The value of cost recovery is limited if the agency is not 
allowed to keep the funds and use them locally to administer the 
special uses program. Respondents believed that cost recovery fees 
would not improve the agency's performance in processing applications 
or monitoring authorizations if cost recovery fees were not available 
to the agency or retained at the administrative unit where they were 
generated. Several respondents said that there should be strict limits 
on the amount of overhead included in determining cost recovery rates.
    Response. The Department agrees with the respondents on these 
issues. The purpose of the cost recovery regulations is undermined if 
cost recovery fees are deposited into the U.S. Treasury and cannot be 
used to process applications more promptly and to monitor 
authorizations more effectively. The preamble to the proposed rule 
stated that the Forest Service did not have the authority to retain and 
spend cost recovery fees collected by the agency. Since the publication 
of the proposed rule, the agency has obtained statutory authority to 
retain and spend cost recovery fees it collects pursuant to this rule 
to cover costs incurred by the agency for processing special use 
applications and monitoring compliance with special use authorizations. 
This authority is contained in the Interior and Related Agencies 
Appropriations Act passed on November 29, 1999 (Pub. L. 106-113), which 
provides for Forest Service appropriations. Section 331 of the act 
authorized the Secretary to develop and implement a pilot program for 
the purpose of enhancing Forest Service administration of rights-of-way 
and other land uses through September 30, 2004. Section 345 of the 
Consolidated Appropriations Act for fiscal year 2005 (Pub. L. 108-447, 
Division E) extended this authority through September 30, 2005. Section 
425 of the Interior and Related Agencies Appropriations Act for fiscal 
year 2006 (Pub. L. 109-54) extended this authority through September 
30, 2006. With this pilot authority and upon adoption of this final 
rule, the agency will have the necessary tools to assess, collect, and 
spend cost recovery fees at the administrative unit where the special 
use processing and monitoring work is performed.
    The Department agrees with those respondents who expressed a 
concern about excessive overhead costs associated with cost recovery 
fees. For minor processing and monitoring categories 1 through 4 in the 
final rule, overhead costs are included in the flat fee rates 
established for each category. The only determining factor for 
establishing the appropriate minor fee category will be the estimated 
number of agency personnel hours needed to process an application or 
monitor an authorization. For major category 5 and category 6 
processing and monitoring cases, the overhead rate will be established 
using the current nationwide average overhead rate for the Forest 
Service. For calendar year 2005, this rate is 17.8 percent. It is the 
goal of the Forest Service to reduce the overhead rate to approximately 
10 percent by 2008. The overhead rate and yearly updates to it will be 
included in the agency's directive system.
    Comment. Adoption of cost recovery regulations will not resolve the 
delays in processing applications or improve

[[Page 8896]]

agency performance; the agency must streamline the application process 
and reduce the amount of environmental documentation required before 
reaching a decision on whether to approve an application. This was a 
significant concern for respondents and generated more comments than 
any other issue. Respondents believed that the application process was 
too burdensome, particularly the requirements that stem from NEPA, and 
stated that the agency should not require applicants to fund this 
burdensome process. Some respondents believed that cost recovery 
regulations could be used by the Forest Service, special interest 
groups, or individuals to prevent or dissuade special use permitting 
activity on NFS lands. Respondents also referred to ``scope creep,'' a 
term they used to describe use of processing fees to conduct 
environmental analysis and documentation beyond that necessary to reach 
a decision on the application being processed. These respondents urged 
that the regulations place limits on the scope and cost of 
environmental studies.
    Response. The Department recognizes these respondents' concerns. 
The Department emphasizes the significance of the amendments made to 
the special use regulations in November 1998 to 36 CFR part 251, 
subpart B, and firmly believes that those streamlining regulations 
should allay most of the respondents' concerns about delays and 
excessive costs in processing applications. The Department points out 
that the Government-wide requirements for environmental analysis and 
documentation for activities that impact Federal lands are well 
established and must be strictly observed. The agency has implemented 
those requirements through procedures issued in its directive system. 
The agency acknowledges that its NEPA procedures regarding special use 
application processing may not provide sufficient flexibility to 
expedite processing and prevent excessive analysis. Therefore, the 
agency revised its environmental analysis requirements by adding two 
new categorical exclusion categories for certain special use 
authorization actions to its environmental policy and procedure 
handbook (FSH 1909.15 ) on July 6, 2004 (69 FR 40591). This revision 
streamlines NEPA compliance in the special use application process 
within the context of statutory and regulatory requirements. Further, 
the final cost recovery regulations include guidance at 36 CFR 
251.58(c) on processing requirements. Additional direction in the 
agency's directive system, employee training during implementation of 
the final rule, and internal agency oversight will specifically focus 
on this concern to ensure consistency in assessing a processing fee 
that is based only on costs necessary for processing an application.
    Comment. Adoption of the cost recovery regulations would violate 
other Federal laws and would conflict with the Forest Service's own 
regulations at 36 CFR 251.54(g)(2). Respondents stated that the agency 
lacks the authority to promulgate cost recovery regulations and in so 
doing would violate one or more Federal laws. For example, a national 
trade association stated that the agency violated the Administrative 
Procedure Act (APA) in not giving notice that it would consider public 
comments submitted in response to BLM's proposed amendments to its cost 
recovery regulations.
    Another respondent stated the proposed rule would violate the Civil 
Rights Act of 1964 because it would impose fees on low-income Hispanic 
families who seek authorizations to gather on NFS lands. Other 
respondents stated that the regulation would violate the IOAA because 
costs and activities that benefit a broad segment of the public, such 
as environmental protection, cannot be passed on to individual 
applicants and holders. Respondents also cited the IOAA in claiming 
that water storage facilities on NFS lands are specifically exempted 
from cost recovery fees.
    Several respondents stated that the Forest Service, not the 
applicant, is responsible for costs associated with NEPA compliance. 
These respondents supported this position by citing 36 CFR 
251.54(g)(2), which states that ``the authorized officer shall evaluate 
the proposed use for the requested site, including effects on the 
environment.''
    Response. The IOAA authorizes all agencies of the Federal 
Government to recover costs associated with providing specific benefits 
and services to an identifiable recipient. This authority applies to 
costs incurred by the Forest Service in processing applications for 
special use authorizations, including costs incurred in completing 
analyses required by NEPA and the Endangered Species Act. These studies 
are conducted to meet legal requirements in processing applications and 
monitoring authorizations, which are submitted on behalf of individuals 
or entities, not the public. Therefore, the Department disagrees with 
respondents who stated that the proposed cost recovery rule violates 
the IOAA. It is appropriate to require applicants for special use 
authorizations to provide information necessary to process their 
applications. While the Forest Service must comply with NEPA and other 
statutes in processing special use applications, the costs associated 
with complying with those statutory requirements in that context are 
incurred for the benefit of the applicants.
    The IOAA authorizes Federal agencies to recover all types of costs 
associated with providing goods and services that benefit an 
identifiable recipient. The IOAA does not limit cost recovery to 
certain types of goods and services and therefore does not preclude 
recovery of processing and monitoring costs associated with special use 
authorizations for water storage facilities. Moreover, the cost 
recovery provisions in FLPMA also apply to processing and monitoring 
costs associated with special use authorizations for water storage 
facilities. FLPMA's cost recovery provisions apply to rights-of-way, 
which, as defined in FLPMA, include authorizations for water uses.
    BLM and the Forest Service published separate proposed cost 
recovery rules in the Federal Register for public notice and comment 
(64 FR 32106, Jun. 15, 1999 and 64 FR 66342, Nov. 24, 1999, 
respectively). BLM's proposed rule addressed cost recovery procedures 
specific to applications and authorizations for rights-of-way 
authorized by FLPMA and the MLA. Nevertheless, because of the 
significant overlap in the subject matter of the agencies' proposed 
rules, each agency notified the public that the Forest Service would 
consider comments on BLM's proposed rule, which was published first. 
Therefore, both BLM and the Forest Service complied with the rulemaking 
requirements in the APA.
    Subsequently, BLM published another proposed rule in the Federal 
Register (65 FR 31234, May 16, 2000) for public notice and comment that 
proposed changes to BLM's cost recovery regulations for special 
recreation permits. To maximize consistency between the agencies, the 
Forest Service also considered comments received by BLM regarding cost 
recovery for special recreation permits. On October 1, 2002, BLM 
published in the Federal Register (67 FR 61732) the final rule amending 
its cost recovery regulations for special recreation permits. In that 
rule, BLM changed its threshold for exempting special recreation permit 
applicants and holders from processing and monitoring fees, from cases 
where BLM's costs to process an application or monitor an

[[Page 8897]]

authorization do not exceed $5,000 to cases where an application or 
authorization requires more than 50 hours to process or monitor. 
Applicants for and holders of a BLM special recreation permit are now 
assessed cost recovery fees only when BLM requires more than 50 hours 
to process an application or monitor a permit. This final rule 
establishes the same threshold for assessing a processing or monitoring 
fee for all Forest Service recreation special uses. A further 
discussion of consistency between the Forest Service and BLM cost 
recovery regulations is found in the section of the final rule entitled 
``Response to Comments on the Supplementary Information Section in the 
Preamble to the Proposed Rule.''
    The Department disagrees with the respondent who stated that the 
cost recovery regulation violates the Civil Rights Act of 1964. 
Families gathering on NFS lands will not have to pay a processing or 
monitoring fee under the final rule. A family gathering does not 
require a special use permit unless it involves 75 or more people (36 
CFR 251.50(c)(3) and 251.51). Moreover, such a family gathering would 
constitute a noncommercial group use, and the final rule exempts 
noncommercial group uses from cost recovery fees. In addition, any cost 
recovery fees applicable to other special uses under the final rule 
will be assessed in a fair and nondiscriminatory manner.
    Comment. Adoption of cost recovery regulations will adversely 
impact small businesses operating on the National Forests and/or will 
impact the economies of local communities. These respondents, mostly 
those providing recreation services to the public, believed that the 
regulations would increase the cost of doing business on NFS lands and 
would force current and future holders of authorizations off those 
lands. Other respondents felt the potential loss of business through 
higher costs would ultimately impact those local communities where the 
businesses are headquartered. Some respondents suggested that the 
agency could prevent such an eventuality by asking Congress for the 
necessary funds to process special use applications and monitor special 
use authorizations.
    Response. The Department recognizes these respondents' concerns but 
notes that implementation of these regulations, coupled with the 
recently adopted streamlining regulations, will allow the agency to 
become more efficient and cost-effective in administering its special 
uses program. Applicants and holders will directly benefit from these 
efficiencies.
    The final rule exempts individuals and entities, including small 
businesses, from cost recovery fees for recreation special use 
applications and authorizations requiring 50 hours or less to process 
or monitor. The final rule also exempts from processing or monitoring 
fees those applications or authorizations that take one hour or less to 
process or monitor. In addition, the basis for assessing a monitoring 
fee has been limited in the final rule.
    For nonrecreation special use applications and authorizations 
requiring 50 hours or less to process or monitor, the cost recovery 
fees, which will be determined from the applicable rate in a schedule, 
will be modest and should not adversely impact small businesses, other 
entities, or individuals who wish to use Federal lands for personal or 
commercial gain.
    For example, an application that is subject to a categorical 
exclusion pursuant to FSH 1909.15, section 31, most likely will take 50 
hours or less to process. In the absence of extraordinary 
circumstances, i.e., a significant environmental effect on certain 
sensitive resource conditions, FSH 1909.15, section 31, categorically 
exempts from documentation in an environmental assessment or 
environmental impact statement (1) approval, modification, or 
continuation of minor, short-term (1-year or less) special uses of NFS 
lands; (2) approval, modification, or continuation of minor special 
uses of NFS lands that require less than 5 contiguous acres of land; 
and (3) issuance, amendment, or replacement of a special use 
authorization that involves only administrative changes (such as a 
change in ownership of the authorized facilities or a change in control 
of the holder) and does not involve any changes in the authorized 
facilities, an increase in the scope or intensity of the authorized 
activities, or an extension of the term of the authorization, and the 
applicant is in full compliance with the terms and conditions of the 
authorization.
    For processing or monitoring fees for more complex applications or 
authorizations, the authorized officer will estimate the agency's full 
actual costs. The Forest Service has prepared a cost-benefit analysis 
of the final rule, which concludes that the final rule could have an 
economic impact on small businesses if their application or 
authorization requires a substantial amount of time and expense to 
process or monitor. These entities could be economically impacted, for 
example, when they apply for agency approval to expand or change their 
authorized use, or when an expired authorization prompts them to apply 
for a new authorization to continue their use and occupancy, and the 
application requires a substantial amount of time and expense to 
process.
    Because for major category processing and monitoring fees, the 
authorized officer will estimate the agency's full actual costs, it is 
difficult to quantify the impacts of those fees programmatically. 
However, the agency will endeavor to minimize these costs. In addition, 
the final rule provides all applicants and authorization holders with 
the opportunity to discuss with the authorized officer determinations 
that are made to establish a cost recovery fee category (for minor 
processing and monitoring cases) or estimated costs (for major category 
processing and monitoring cases). The final rule also provides 
applicants and authorization holders the opportunity to request that 
the authorized officer's immediate supervisor review an authorized 
officer's determination of a fee category or estimated costs. Based on 
the foregoing, the Department believes that cost recovery fees adopted 
by this final rule will not broadly impact or pose an economic barrier 
to local economies.
    It is not reasonable to assume that Congress will support 
additional funding for the agency's special uses program as an 
alternative to cost recovery. In recent years, Federal agencies' 
appropriations have remained relatively constant or have decreased. 
Congress has, however, provided alternative authorities to fund 
government programs that are equitable and fiscally and 
administratively sound. The Department firmly believes that the cost 
recovery provisions contained in this final rule exemplify this 
approach. Respondents raised a similar issue regarding regulatory 
impact that is discussed in the following section concerning comments 
on the preamble to the proposed rule.

Response to Comments on the Supplementary Information Section in the 
Preamble to the Proposed Rule

    Many respondents commented on the supplementary information section 
in the preamble to the proposed rule, which outlined the agency's 
expected procedures for implementing cost recovery and explained the 
provisions of the proposed rule. The preamble also provided readers 
with a table showing the Forest Service's and BLM's proposed processing 
and monitoring fee rates.
    Comment. The information in the preamble is vague and open-ended. 
Respondents stated that the descriptions

[[Page 8898]]

for the specific sections of the proposed rule were insufficient. A few 
were concerned that certain types of special uses were not addressed, 
leaving the respondents uncertain as to whether they would be affected 
by the proposed rule. Others were uncertain whether cost recovery would 
apply to existing applications and authorizations on file with the 
agency. Some respondents cited the need for clarification of certain 
terms used in the preamble. Several respondents said that the 
definition for authorized officer gives too much discretion to the 
deciding official in determining cost recovery fees. Respondents 
questioned the definition for monitoring in the proposed rule and 
stated that the term ``reasonable costs'' as discussed in the preamble 
and fee schedule was vague. Use of the term ``noncommercial group 
uses'' caused confusion among several respondents as to its 
applicability to special uses. Some respondents commented that the term 
``right-of-way'' in FLPMA refers only to roads, and since the right-of 
way granted to these respondents is not a road, it is not subject to 
the cost recovery provisions of FLPMA or any other statute.
    Response. The proposed language at 36 CFR 251.58(b) outlined the 
situations in which a cost recovery fee would be assessed. In response 
to concerns about the scope of the proposed rule, the Department is 
tightening and more clearly stating the types of applications and 
authorizations that will be subject to processing and monitoring fees.
    This final rule will be incorporated into existing regulatory text, 
which already includes the definitions for authorized officer, group 
use, and noncommercial use or activity at 36 CFR 251.51. Nevertheless, 
the Department recognizes the need for clarification of some of the 
terms and processes described in the preamble of the proposed rule. The 
final rule has been carefully reviewed and revised to ensure that the 
purpose and intent of cost recovery are fully documented and explained 
and that respondents' concerns about clarity of terms are addressed.
    The authorized officer has a specific role within the Forest 
Service as the agency official delegated the authority to perform the 
duties and responsibilities for managing an administrative unit of NFS 
lands. Specific to the special uses program, the Chief of the Forest 
Service is responsible for accepting and evaluating special use 
applications and issuing, amending, renewing, suspending, or revoking 
special use authorizations. This authority is delegated to the 
appropriate line officer at the Regional, Forest, or District level as 
provided in 36 CFR 251.52. This line officer, or authorized officer, 
has the authority to issue special use authorizations and assess land 
use fees for use and occupancy of NFS lands and, once this final rule 
goes into effect, will have the authority to determine and assess 
processing and monitoring fees associated with issuance and 
administration of those authorizations. The Department has addressed 
respondents' concerns that too much authority would rest with the 
authorized officer in determining processing and monitoring fee 
categories and estimated costs by providing in the final rule that 
applicants and holders may request a review of these determinations by 
the authorized officer's immediate supervisor.
    Section 251.51 of the current special use regulations contains 
definitions for group use and noncommercial use or activity. The term 
``group use'' applies to those activities that involve a group of 75 or 
more people, either as participants or spectators; the term 
``noncommercial use or activity'' is a use or activity that does not 
involve the charging of an entry or participation fee or the sale of a 
good or service as its primary purpose. The phrase ``noncommercial 
group use'' in the proposed rule combined the two terms to identify a 
specific type of special use. This type of activity may involve the 
exercise of First Amendment rights. Federal court decisions required 
the Department to amend its special use regulations with regard to this 
type of activity to meet First Amendment requirements. These revisions 
were made to 36 CFR 251.51 and 251.54 in accordance with the court 
decisions (60 FR 45293, Aug. 30, 1995).
    The definition for monitoring has been revised in the final rule to 
address respondents' concerns about the activities included in 
monitoring, specifically for minor category cases, and is further 
explained in the specific comments on 36 CFR 251.51.
    The term ``reasonable cost'' is used in section 504(g) of FLPMA, 
which provides that the Secretary concerned may, by regulations or 
prior to promulgation of such regulations, require an applicant for or 
holder of a right-of-way to reimburse the United States for all 
reasonable administrative and other costs incurred in processing an 
application for the right-of-way, and in monitoring the construction, 
operation, and termination of the facilities authorized pursuant to the 
right-of-way. Applicants for and holders of authorizations issued under 
the MLA may be required to pay full actual costs instead of full 
reasonable costs.
    Section 4 of the preamble to the proposed rule (64 FR 66342) 
clearly stated that processing fee provisions would apply to all 
special use applications, not just to applications for rights-of-way 
under FLPMA. In addition, section 501(a) of FLPMA defines right-of-way 
as a reservoir, canal, ditch, flume, lateral, pipe, pipeline, tunnel, 
facility for the impoundment, storage, transportation, or distribution 
of water, electronic communications use, road, trail, railroad, 
tramway, or airway. Therefore, the definition for right-of-way under 
FLPMA includes more than roads and other linear uses. In addition, 
FLPMA is just one of the numerous statutes that authorize use and 
occupancy of NFS lands.
    Comment. If a special use provides a public benefit, it is not 
subject to the cost recovery provisions in the IOAA and FLPMA. Several 
respondents, commenting on the listing in the preamble of the statutory 
authorities governing special uses administration, stated that certain 
water uses and recreation residences are not subject to the cost 
recovery requirements of the final rule because these uses provide 
benefits to the public.
    Response. This comment relates to the concern addressed previously 
about violation of Federal statutes. The Department reiterates that 
this final cost recovery rule is well founded in law. The IOAA 
authorizes all agencies of the Federal Government to recover costs 
associated with providing specific benefits and services to an 
identifiable recipient, including applicants for and holders of water 
use and recreation residence special use authorizations. Additional 
authority to recover processing and monitoring costs is provided by 
section 504(g) of FLPMA and section 28(l) of the MLA. There is no 
exemption in these statutes for uses that provide a public benefit in 
addition to benefiting identifiable recipients.
    Comment. Facilities authorized on NFS lands that are financed, or 
eligible to be financed, with a loan pursuant to the Rural 
Electrification Act of 1936 (REA) should be exempted from cost recovery 
fees. The preamble to the proposed rule stated that the provisions of 
the cost recovery regulations would apply in situations where the land 
use fee may be exempted or waived. The preamble specifically mentioned 
facilities financed or eligible to be financed under the REA as an 
example where the land use fee is exempted, but a cost recovery fee 
would be assessed.

[[Page 8899]]

Several REA entities and their national representatives commented that 
a 1984 amendment to FLPMA specifically exempts REA-financed facilities 
on NFS lands from cost recovery fees. These respondents believed that 
it was the intent of Congress, in passing the 1984 amendment to FLPMA, 
to exempt these facilities from all fees, including cost recovery fees.
    Response. The Department disagrees with these respondents. The 1984 
amendment to FLPMA explicitly differentiated between a land use fee and 
an administrative fee and excluded the latter from the fee exemption 
provided for by that amendment. With respect to administrative fees, 
the proviso to the amendment stated that ``nothing in this sentence 
shall be construed to affect the authority of the Secretary granting, 
issuing, or renewing the right-of-way to require reimbursement of 
reasonable administrative and other costs pursuant to the second 
sentence of this subsection'' (43 U.S.C. 1764(g), as amended by Pub. L. 
98-300). The Department also notes that BLM has been collecting cost 
recovery fees from holders of rights-of-way for these facilities on 
public lands for many years under its cost recovery regulations. No 
revision to 36 CFR 251.51(g) of the final rule has been made to respond 
to this concern.
    Comment. Processing and monitoring fees should be displayed in 
separate schedules. Several respondents stated that displaying both 
processing and monitoring fees in the same schedule was confusing 
because it appeared to link the two fees, when in fact they were not 
linked. They recommended that the two types of fees be displayed in 
separate schedules.
    Response. The Department concurs with this recommendation. The 
processing and monitoring fees that appear in section 3 of the preamble 
are displayed in separate schedules. These separate schedules will be 
incorporated into the Forest Service's directive system.
    Comment. The proposed regulations constitute a significant rule. 
Several respondents disagreed with the agency's conclusion in the 
preamble that the proposed rule is not significant and would not have 
an annual effect of $100 million or more on the economy or adversely 
affect productivity, competition, jobs, the environment, public health 
or safety, or State or local governments. These respondents believed 
that the proposed regulations could impose substantial financial 
burdens on small businesses and their customers, which could hurt local 
economies. Therefore, the proposed regulations should be subject to OMB 
review. In a related concern, a few respondents stated that the agency 
failed to consider the economic impacts of the proposed rule on small 
entities pursuant to the Regulatory Flexibility Act.
    Response. The criteria for determining whether a proposed rule is 
significant are prescribed by United States Department of Agriculture 
procedures and Executive Order 12866 on regulatory planning and review. 
The Department has estimated that the annual cost recovery fees 
collected under the provisions of this final rule will be less than $10 
million, well below the $100 million threshold for significance of a 
rule.
    The Forest Service's final rule has been deemed significant under 
the EO 12866. Accordingly, the agency has prepared a programmatic cost-
benefit analysis and a threshold Regulatory Flexibility Act analysis 
for the final rule, as referenced in section 5 of the supplementary 
information section in the preamble of this rule. The threshold 
Regulatory Flexibility Act analysis was conducted to ascertain if the 
final rule would have a significant economic impact on a substantial 
number of small entities and if so, if more detailed analyses were 
required pursuant to the Regulatory Flexibility Act. Based on the cost-
benefit and threshold Regulatory Flexibility Act analyses, the 
Department believes that the final rule will not have a significant 
economic impact on a substantial number of small entities.
    Comment. Greater use should be made of master agreements. Some 
respondents, particularly large commercial entities holding several 
authorizations involving several sites on NFS lands, advocated use of 
master agreements to allow for processing multiple applications and 
monitoring multiple authorizations through a single document. These 
respondents suggested that master agreements should be issued for a 10-
year period and should cover an entire Forest Service administrative 
unit, up to and including a Regional unit. Some suggested that master 
agreements provide for monitoring by the holder, rather than by the 
Forest Service.
    Response. The Department agrees that there should be greater use of 
master agreements. The Forest Service, as part of its efforts to 
increase the efficiency and cost-effectiveness of its special uses 
program, will seek to expand use of master agreements with the 
implementation of this final rule. In addition, the final rule has been 
modified to include provisions for master agreements in the monitoring 
fee schedules. The Department does not believe, however, that master 
agreements should provide for monitoring solely by the holder, rather 
than by the Forest Service. Master agreements may provide for some 
monitoring tasks to be performed by the holder. Any monitoring tasks 
performed by the holder under a master agreement will not be subject to 
cost recovery fees under the final rule.
    Comment. Greater consistency is needed between the Forest Service 
and BLM on cost recovery. Respondents stated that there were 
inconsistencies between the regulations proposed by each agency and 
urged that the final regulations be made consistent. The inconsistency 
that respondents mentioned most often was that under its proposed rule, 
BLM would not assess cost recovery fees for outfitters and guides 
operating on BLM-administered lands. The same respondents believed that 
BLM is more responsive to requests to use BLM-administered lands.
    Response. The Forest Service and BLM sought consistency between the 
Forest Service's proposed cost recovery rule (64 FR 66342, Nov. 24, 
1999) for special uses and BLM's proposed cost recovery rule for its 
right-of-way program (64 FR 32106, Jun. 15, 1999) in terms of schedule 
categories, rates, definitions, and other matters relating to 
implementation of cost recovery. However, the Department agrees that 
there can be greater consistency between the Forest Service's and BLM's 
cost recovery rules, and the final rules of both agencies have been 
modified to achieve that goal, as discussed below.
    Subsequent to publication of the Forest Service's proposed cost 
recovery rule for special uses and BLM's proposed regulations for its 
right-of-way program, BLM published another proposed cost recovery rule 
in the Federal Register (65 FR 31234, May 16, 2000) to amend cost 
recovery requirements for its special recreation permit program in 43 
CFR part 2900. In their proposed rule, BLM proposed to change its 
threshold for exempting special recreation permit applicants and 
holders from processing and monitoring fees where BLM's costs to 
process an application or monitor an authorization do not exceed 
$5,000, to cases where an application or authorization requires more 
than 50 hours to process or monitor. The proposed rule also stated that 
full costs would be charged for special recreation permit applications 
or authorizations that require over 50 hours to process or monitor. A 
final cost recovery rule for BLM's special recreation permits that 
adopted this new

[[Page 8900]]

threshold was published in the Federal Register on October 1, 2002 (67 
FR 61732).
    To maximize consistency with BLM, the Department is adopting the 
same approach for Forest Service recreation special uses in this final 
rule. Recreation special uses are identified in FSH 2709.11, chapter 
50, by use codes 111 through 165. Recreation special use applications 
or authorizations that require 50 hours or less to process or monitor 
will be exempt from cost recovery fees. This change from the proposed 
rule also addresses the concerns that many small businesses expressed 
regarding the financial hardship that would be created by the cost 
recovery rule if it were adopted as originally proposed. Other 
revisions to the final rule that provide for greater consistency 
between the Forest Service and BLM are addressed in the response in the 
following comment.
    Comment. Some respondents recommended that the fee rates and 
schedules be revised. There were 7 respondents who thought the proposed 
fees were acceptable, 20 who thought the fees were too high, and 4 who 
thought the fees were too low. Forty-one respondents offered other 
comments on the proposed cost recovery fees presented in the schedules 
in the preamble of the proposed rule. Several respondents stated that 
the fees for category A, the minimal impact processing fee category in 
the proposed rule, were too high considering the processing effort 
required. A fee of $25 was suggested as an alternative. Others 
suggested that subcategories of category A be established that would 
recognize that some actions have substantially no impact. Others 
suggested that issuance of a temporary permit (with less than a 1-year 
term), issuance of a new permit due to a change in ownership, and 
renewal of a permit were actions with minimal impact that should have a 
flat processing fee of $75. One respondent stated that there is a 
disparity in the hourly rate for each processing and monitoring 
category when that rate is determined by dividing the rate in each 
category by the maximum number of hours for each category. Respondents 
also suggested that the table display a fee in the proposed policy for 
monitoring category B-IV and that monitoring fees be limited to 
construction or reconstruction activities. Several respondents 
suggested that the Department add a master agreement category for 
monitoring.
    Response. The Forest Service proposed two separate fee schedules to 
track the two separate fee schedules in BLM's cost recovery rule for 
its right-of-way program: One for applications and authorizations 
subject to the MLA, and one for applications and authorizations subject 
to FLPMA. Separate fee schedules were established because of the 
differences in the legal standard for calculating cost recovery fees 
under the MLA and FLPMA. The preamble of the proposed rule also stated 
that the Forest Service proposed to adopt cost recovery fee rates 
similar to BLM's proposed fee rates for processing applications and 
monitoring authorizations because (1) the Forest Service's costs to 
process applications and monitor authorizations for use and occupancy 
of NFS lands are comparable to BLM's costs to process applications and 
monitor authorizations for rights-of-way on BLM-administered lands and 
(2) the public is better served by maintaining consistency in 
administration of special uses and rights-of-way by the Forest Service 
and BLM. To maximize interagency consistency, the fee schedules and 
rates e