Land Uses; Special Uses; Cost Recovery, Strict Liability Limit, and Insurance, 14517-14529 [2023-04180]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 88, Number 46 (Thursday, March 9, 2023)]
[Proposed Rules]
[Pages 14517-14529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04180]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 251

RIN 0596-AD35


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

AGENCY: Forest Service, Agriculture (USDA).

ACTION: Proposed rule; request for public comment.

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

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

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

FOR FURTHER INFORMATION CONTACT: Reginal Woodruff, Acting Assistant 
Director, Washington Office Lands and Realty Management Staff, 202-644-
5974 or [email protected]. Individuals who use 
telecommunication devices for the deaf and hard of hearing (TDD) may 
call the Federal Relay Service at 800-877-8339 24 hours a day, every 
day of the year, including holidays.

SUPPLEMENTARY INFORMATION: 

1. Background and Need

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

[[Page 14518]]

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

2. Proposed Regulatory Revisions

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

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

[[Page 14519]]

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

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

Cost Recovery Fees for Proposals

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

Removal of the Exemption for Minor Category Commercial Recreation 
Special Use

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

[[Page 14520]]

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

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

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

Regulatory Certifications

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

[[Page 14521]]

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

[[Page 14522]]

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

Congressional Review Act

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

National Environmental Policy Act

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

Regulatory Flexibility Act Analysis

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

[[Page 14523]]

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

[[Page 14524]]

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

[[Page 14525]]

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

Federalism

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

Consultation and Coordination With Indian Tribal Governments

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

Environmental Justice

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

No Takings Implications

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

Energy Effects

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

Civil Justice Reform

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

Unfunded Mandates

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

Controlling Paperwork Burdens on the Public

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

List of Subjects in 36 CFR Part 251

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

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

PART 251--LAND USES

Subpart B--Special Uses

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

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

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


Sec.  251.56  Terms and conditions.

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

[[Page 14526]]

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


Sec.  251.58  Cost recovery.

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

[[Page 14527]]

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

[[Page 14528]]

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

[[Page 14529]]

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

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