Minerals Cost Recovery, 38416-38430 [2023-11622]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 88, Number 113 (Tuesday, June 13, 2023)]
[Proposed Rules]
[Pages 38416-38430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11622]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 228

RIN 0596-AD47


Minerals Cost Recovery

AGENCY: Forest Service, USDA.

ACTION: Proposed rule; request for public comment.

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SUMMARY: The Forest Service proposes regulations to impose new fees to 
recover the agency's costs for processing proposals related to mineral 
activity on National Forest System lands. This would include costs for 
actions such as environmental review and analysis, monitoring 
authorized activities, and other processing-related costs. The proposed 
rule would establish a fee schedule based on categories of Federal 
hours needed to complete processing for most mineral-related actions 
and charge a fixed fee for low-volume mineral material disposals. This 
proposal to recover costs is based on statutory authority, which 
authorizes Federal agencies to charge for work it performs to provide a 
service or benefit to identifiable entities and on policy guidance from 
the Office of Management and Budget (OMB) which directs charging these 
fees. This rulemaking also responds to a Government Accountability 
Office (GAO) recommendation made in an audit report that the Forest 
Service recover costs for processing locatable mineral plans of 
operation. The Forest Service invites written comments on this proposed 
rule and its supporting economic analysis of impacts to small 
businesses.

DATES: Comments concerning this proposed rule must be received by 
August 14, 2023.

ADDRESSES: Comments, identified by RIN 0596-AD47, should be sent via 
one of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for sending comments;
    2. Email: [email protected];
    3. Mail: Director, Minerals and Geology Management Staff, 201 14th 
Street SW, Washington, DC 20250-1124; or
    4. Hand Delivery/Courier: Director, Minerals and Geology Management 
Staff, 1st Floor South East, 201 14th Street SW, Washington, DC 20250-
1124.
    Please confine written comments to issues pertinent to the proposed 
rule and the supporting economic analysis; explain the reasons for any 
recommended changes; and, where possible, reference the specific 
wording being addressed. All comments, including names and addresses 
when provided, will be placed in the record and will be available for 
public inspection and copying. The public may inspect comments received 
on this proposed rule at the Office of the Director, Minerals and 
Geology Management, 201 14th Street SW, 1st Floor Southeast, Sidney R. 
Yates Federal Building, Washington, DC, on business days between 8:30 
a.m. and 4:00 p.m. Visitors are encouraged to call ahead at 202-205-
1680 to facilitate entry into the building. Comments may also be viewed 
on the Federal eRulemaking Portal: https://www.regulations.gov. In the 
Searchbox, enter ``RIN 0596-AD47'' and click the ``Search'' button.

FOR FURTHER INFORMATION CONTACT: Tim Abing, Affiliate to the Minerals 
and Geology Management Staff at [email protected]. Individuals who 
use telecommunication devices for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339 between 8 a.m. and 8 
p.m., Eastern Daylight Time, Monday through Friday.

SUPPLEMENTARY INFORMATION: 

Background and Need for Proposed Rule

    The Forest Service proposes regulations to recover its costs for 
processing applications and other proposals related to mineral activity 
conducted on National Forest System (NFS) lands. The proposed rule 
would

[[Page 38417]]

also recover agency costs for monitoring compliance with construction 
and reclamation requirements for authorizations issued by the Forest 
Service pursuant to 36 CFR part 228. Each year the Forest Service 
processes nearly 3,000 applications and other proposals to use and 
occupy NFS lands to prospect, explore, develop, and remove mineral 
resources. NFS lands currently host approximately 138 authorized 
locatable mineral operations, 47 operations associated with coal and 
other non-energy solid leasable minerals, 5,490 Federal oil and gas 
leases, 3,170 active oil and gas wells, 11 geothermal leases, and 4,155 
community pits and common use areas for disposal of mineral materials. 
Each of these activities was subject to a case-specific review, 
analysis, and decision process before approval and implementation, 
requiring substantial Forest Service time and expense.
    The Forest Service responds to requests from businesses and 
individuals to prospect, explore, develop, and/or dispose of mineral 
resources on NFS lands. Depending on the statutory classification of 
the mineral resource involved, these requests fall into three distinct 
program areas: locatable minerals, leasable minerals, and mineral 
materials. The action the Forest Service takes to process these 
requests varies as does the associated commitment of agency resources 
to complete their processing. Examples of mineral-related agency 
actions include approving locatable mineral plans of operation or oil 
and gas surface use plans of operation, issuing contracts or permits to 
dispose of mineral materials, and providing surface management agency 
responses to mineral leases and operating plan proposals that are filed 
with other government agencies such as the Bureau of Land Management.
    Governing statutes related to minerals management on NFS lands 
include the General Mining Law of 1872; the Mineral Resources on Weeks 
Act Lands of March 4, 1917; the Mineral Leasing Act of 1920, as 
amended; the Bankhead-Jones Farm Tenant Act of 1937; the Mineral 
Leasing Act of 1947 for Acquired Lands; the Materials Act of 1947; the 
Surface Resources Act of 1955; the Geothermal Steam Act of 1970; the 
Federal Coal Leasing Amendments Act of 1975; the Surface Mining Control 
and Reclamation Act of 1977; the Federal Onshore Oil & Gas Leasing 
Reform Act of 1987; and the Energy Policy Act of 2005. The basic 
authority of the Secretary of Agriculture to regulate the use and 
occupancy of NFS lands is the Organic Administration Act of 1897 (16 
U.S.C. 551).
    Some of the aforementioned statutes provide the Forest Service with 
direct authority to authorize certain mineral-related activity (such as 
approving the surface use plan of operations for oil and gas drilling 
permits under the Federal Onshore Oil and Gas Leasing Reform Act). 
Other statutes provide that the Forest Service consent, concur, or make 
recommendations for mineral leases and operating plans filed with 
another government agency (such as, consent to the Bureau of Land 
Management [BLM] for coal leasing under the Federal Coal Leasing 
Amendments Act, and concurring to Federal mine plan decisions made by 
the Office of Surface Mining Reclamation and Enforcement [OSMRE]). The 
BLM, which manages federally owned minerals on all Federal lands, 
including NFS lands, has existing regulations for cost recovery for its 
minerals program. However, BLM's regulations do not include provisions 
for the Forest Service to recover its costs for actions where there are 
joint processing responsibilities.
    Requirements of the National Environmental Policy Act, the National 
Historic Preservation Act, the Endangered Species Act, the 
Archaeological Resources Protection Act of 1979, and Executive Order 
Nos. 11998 (Floodplains) and 11990 (Wetlands) also bear directly on 
costs the Forest Service incurs in processing mineral-related actions. 
These statutory authorities and directives require the Forest Service 
to complete varying levels of analysis and document the effects of 
proposed activities on environmental, cultural, and historical 
resources. Oftentimes, specific consultation with agencies overseeing 
the resource protected under these statutes must also occur. The 
practical effect of these requirements lengthens the time required and 
increases the cost associated with processing mineral-related actions. 
The time and cost impacts weigh on Forest Service staff and financial 
resources, on proponents seeking authorization for new activity, and on 
holders of existing authorizations. These impacts are a principal 
factor in the development of this proposed cost recovery rule.
    At current levels of appropriated funding, staffing, and other 
resources to manage its minerals program, the Forest Service finds it 
increasingly difficult to provide timely reviews and evaluation of 
mineral-related proposals and to monitor activity to ensure it is 
conducted in compliance with applicable requirements. Under current 
circumstances, the Forest Service is challenged to deliver efficient 
and effective customer service in its minerals program to meet the 
needs of proponents and the public.
    Some proponents voluntarily fund agency costs and hire third-party 
contractors to conduct required environmental reviews to help speed the 
approval process for a particular proposed use. However, without the 
appropriate regulatory authority, the Forest Service has no means to 
require a proponent to pay for the agency's costs to process a proposal 
or monitor compliance with an authorization.
    The Independent Offices Appropriations Act of 1952 (IOAA), as 
amended (31 U.S.C. 9701) authorizes Federal agencies to prescribe 
regulations to charge fees to recover the government's costs for 
providing special benefits to recipients beyond those that accrue to 
the general public.
    The IOAA requires agencies to promulgate regulations to charge 
proponents for the cost of processing documents which the Forest 
Service is proposing to do through this rulemaking. Charges imposed 
under the authority of the IOAA must be fair and equitable and take 
into consideration the costs to the Federal Government, value to the 
recipient, public interest served, and other pertinent factors. The 
IOAA acknowledges that other statutes may prohibit or impose 
limitations on fees that the government may charge.
    Government-wide policy for implementing the cost recovery 
provisions of the IOAA are described in the Office of Management and 
Budget (OMB) Circular No. A-25 entitled ``User Charges.'' The general 
Federal policy is that a charge will be assessed against each 
identifiable recipient for special benefits beyond those received by 
the general public. Unless prohibited by statute or other authority, 
the Circular states that agencies must impose a charge against each 
identifiable recipient that recovers the full cost to the agency of 
providing the service. Section 7 of the Circular directs that user 
charges be instituted through promulgation of agency regulations. 
Adoption of this proposed rule would comply with the requirements of 
OMB Circular No. A-25.
    In 2016, the Government Accountability Office (GAO) completed a 
review to assess the Forest Service and BLM processing of mine plans of 
operation for hardrock minerals under the 1872 Mining Law (GAO-16-165). 
The GAO recommended the Forest Service issue a rule that establishes a 
fee structure for hardrock mine plan processing activities and request

[[Page 38418]]

authority from Congress to retain any fees it collects. Adoption of 
this proposed rule would implement GAO's recommendation.
    Additionally, Section 40206 of the 2021 Bipartisan Infrastructure 
Law (Pub. L. 117-58) specified that cost recovery is to be among 
options considered by the Secretaries of Agriculture and Interior to 
ensure adequate staffing of federal entities responsible for processing 
authorizations related to critical mineral activities on Federal land.
    This rulemaking is needed for the Forest Service to comply with 
those statutory requirements and Federal policy as well as to implement 
GAO's recommendation. The proposed rule aims to increase capacity and 
improve customer service in the Forest Service minerals program.
    The Forest Service expects to use the processing and monitoring 
fees paid by proponents to fund the costs the agency incurs in the 
review and decision-making process responding to mineral-related 
proposals to use and occupy NFS lands; to prepare and issue mineral 
authorizations in those cases where the agency approves the proposed 
use and occupancy; to provide required responses to mineral proposals 
filed with other government agencies; and to monitor compliance with 
the terms and conditions of mineral authorizations. The recovery of 
costs from applicants and holders would provide the Forest Service with 
additional resources to deliver more efficient and timely responses to 
requests for agency action. Similarly, cost recovery also would 
increase the Forest Service's ability to monitor on-site activities to 
adequately protect NFS lands and resources, in accordance with the 
terms and conditions of mineral authorizations. Upon final adoption, 
this rule would not provide the agency with the authority to retain and 
spend any of the funds collected. The agency's retention and 
expenditure of collected fees pursuant to this rule would need to be 
authorized by Congress. The Forest Service will seek such authority in 
conjunction with final adoption of this proposed rule. If Congress does 
not authorize retention authority, the funds received under this rule 
will be deposited in the General Treasury.
    The proposed rule would require a proponent or holder to pay a 
processing fee and, where applicable, a monitoring fee. The rule 
creates a schedule of six categories where fees for a submitted 
proposal would be based on agency work hours involved to complete 
processing or to monitor an authorization. The proposed rule would also 
establish a fixed fee for low-volume mineral material disposals. In 
determining the appropriate processing fee, the Forest Service will 
include time needed to collect all data and information needed for the 
agency to: (1) fully describe the proposed use; (2) identify, evaluate, 
and prepare documentation of the environmental effects of the proposed 
use; and (3) make a decision or provide a required response to the 
proposal. Proponents would be encouraged to fulfill documentation 
aspects to the extent feasible from sources other than limited agency 
resources to maintain the agency's ability to process proposals in as 
efficient and timely a manner as possible. Processing tasks completed 
by the proponent, or a third party would reduce the amount of time the 
Forest Service spends on each case, thereby reducing the processing fee 
assessed to the proponent.
    The cost recovery provisions of this proposed rule would apply to 
requests and applications as specified in the rule and received on or 
after the effective date of a final rule. The Forest Service may 
propose future rulemaking to recover other mineral program costs that 
are recoverable under the IOAA.
    The proposed rule would give the authorized Forest Service officer 
discretion to waive all or part of processing fees in certain 
circumstances, such as for disposal of mineral materials to a 
government entity for a public works project.
    The proposed rule would specify that a separate monitoring fee 
would not be charged for proposals subject to the fixed fee. Given the 
high annual number and minimal impact of these type of disposals, the 
Forest Service proposes to not collect a monitoring fee in the interest 
of administrative efficiency.
    For authorizations issued by the Forest Service on or after the 
effective date of a final rule, this rule proposes to charge fees for 
monitoring compliance during the construction and reclamation phases of 
the authorization. The agency's experience monitoring over 4,600 
mineral operations annually indicates that the cost to process a 
mineral proposal frequently has no relationship to the cost of 
monitoring the activity after an authorization is issued. Proposals 
that can be time consuming to process may require minimal time (or 
cost) for the agency to monitor. Alternately, an action requiring 
little time to process may require more time to monitor due to 
sensitive resource concerns or compliance issues. Therefore, the Forest 
Service proposes that the processing fee category and amount for each 
case would be determined independently of the monitoring fee category 
and amount; that is, the processing fee charged for non-fixed fee 
authorizations would not dictate the corresponding monitoring fee 
category or amount.
    The processing fee for the fixed fee proposal must be paid at the 
time the proposal is submitted to the Forest Service. For category 1 
through 4 proposals, the authorized officer would determine the 
processing fee based on the processing fee schedule. For category 5 and 
6 proposals, the processing fee would be estimated on a case-by-case 
basis. The fee for Category 1 through 6 proposals would be due before 
the Forest Service begins processing the proposal. If the non-fixed fee 
proposal is approved by the authorized officer, a monitoring fee for 
the authorization would be the rate for the category determined 
appropriate for the activity (or estimated on a case-specific basis for 
category 5 and 6 authorizations). Payment of the monitoring fee would 
be due at the time the authorization is issued. Payment of monitoring 
fees for a multiyear project may be established in an agreement between 
the Forest Service and the operator.
    The Forest Service would publish the cost recovery fees for the fee 
category schedule in the agency's directive system in Forest Service 
Handbook (FSH), Minerals and Geology Handbook 2809.15 (which can be 
accessed via the internet at the agency's directives home page: https://www.fs.usda.gov/im/directives/). Fees would be adjusted annually for 
inflation.
    The fees collected by the Forest Service under this rule would be 
in addition to fees that may be due to another government agency for a 
specific proposal.

Description of Proposed Rule by Section

    A section-by-section discussion of the proposed cost recovery rule 
follows.

New Subpart F

    Proposed Sec.  228.200 Authority. This section identifies the IOAA 
as the statutory authority for the cost recovery rule.
    Proposed Sec.  228.201 Definitions. This section defines terms that 
have a unique meaning within the context of the proposed rule. The 
terms defined in this section allow for simplifying references to the 
variety of terms used throughout mineral regulations associated with 
the proposed rule.
    Proposed Sec.  228.202 Cost recovery. This section implements the 
authority provided for in the IOAA and OMB

[[Page 38419]]

Circular No. A-25 that directs Federal agencies to recover costs for 
services provided to identifiable recipients beyond those accruing to 
the general public. This section specifies requirements for the agency 
to recover costs to process mineral-related proposals and to monitor 
authorized mineral activities. The proposed rule would not apply to 
agency costs associated with administering reserved and outstanding 
mineral rights activities that may be exercised as a property right 
without an authorization from the Forest Service or under the rules 
found at 36 CFR 251.15.
    Paragraph (a) directs the Forest Service to assess fees to recover 
the agency's processing and monitoring costs for mineral proposals 
pursuant to the regulations of Part 228. Fees may either be fixed or 
determined from one of six processing categories. By definition, a 
proposal would include applications, plans, or other requests 
associated with mineral resources on NFS lands, including those 
proposals filed with another government entity which require input from 
the Forest Service. It would establish that cost recovery fees payable 
to the Forest Service under the rule would be separate from fees 
charged by other government entities. An example would be the fee 
charged by the Forest Service to process a surface use plan of 
operations for an oil and gas drilling permit would be separate from, 
and in addition to, the permit fee the BLM collects for processing the 
associated Application for Permit to Drill. The provisions of the rule 
do not apply to or supersede written agreements to recover processing 
costs executed by the Forest Service and a proponent prior to the 
effective date of the rule.
    Paragraph (b) states that cost recovery requirements of Part 228 
would apply to processing proposals received on or after the effective 
date of the rule (paragraph (b)(1)) and to monitoring of authorizations 
issued or amended under Part 228 on or after the effective date of the 
rule (paragraph (b)(2)).
    Paragraph (c) outlines processing fee requirements in paragraphs 
(1) through (7). The introductory paragraph would require a fee for 
each proposal identified in paragraph (b) processed by the Forest 
Service and states that processing fees would not include costs 
incurred by the proponent to prepare information and documentation 
needed by the authorized officer to take action. The paragraph would 
also describe the basis for fixed fee proposals as well as for 
processing category proposals. Six processing categories would be 
established in this section and are based on the agency work hours 
needed to process the proposal, as shown in Table 1 below.

                 Table 1--Proposed Processing Categories
------------------------------------------------------------------------
         Processing category                  Federal work hours
------------------------------------------------------------------------
1...................................  Up to 8.
2...................................  Over 8 up to 24.
3...................................  Over 24 up to 40.
4...................................  Over 40 up to 64.
5 (Master Agreements)...............  Varies.
6...................................  Over 64.
------------------------------------------------------------------------

    Paragraphs (c)(3)(ii)(A) through (F) establish that the Forest 
Service and the proponent could enter into master agreements (category 
5) to recover processing costs associated with a single proposal, group 
of proposals, or similar proposals filed by the same proponent within a 
specified geographic area. Each proposal covered by a master agreement 
would be assigned its own processing fee category and rate. Master 
agreements may be considered an efficient alternative to case-specific 
estimates of processing time, particularly when a proponent routinely 
submits proposals or has several authorizations within a defined area 
or administrative unit.
    Processing fees for category 5 (master agreements) and category 6 
could be assessed and collected in periodic installments. The 
authorized officer would estimate the processing fees for category 5 
and 6 proposals on a case-specific basis and would reconcile the fees 
based on the ultimate full cost to process. Upon the agency's 
completion of all processing tasks for category 5 and 6 proposals, any 
remaining balance of the processing fee would be either refunded to the 
proponent or credited towards monitoring fee assessments. When the 
estimated processing fee for category 5 and 6 proposals is lower than 
the agency's costs for processing a proposal, the proponent would be 
obligated to pay the difference between the estimated costs and the 
agency's full costs. For all categories, a proponent's payment of the 
processing fee would neither ensure nor imply agency approval of the 
proposed use or occupancy. The proponent would be liable for the 
agency's processing costs regardless of whether the proposal is 
subsequently denied by the agency or withdrawn by the proponent.
    Establishing processing fees are expected to encourage prospective 
proponents to discuss their proposed use and occupancy with the Forest 
Service prior to submitting a formal proposal. The agency anticipates 
that this fee may also provide an incentive for proponents to better 
design their proposals to meet the agency's resource management 
concerns and objectives. The agency would not duplicate processing 
activities to be conducted by the proponent. Proponents would be 
encouraged to conduct as many of the necessary processing steps as 
possible (such as collecting data; performing studies; completing 
resource surveys, evaluations, and assessments; and conducting and 
documenting environmental analyses), subject to review and acceptance 
by the Forest Service. Having the proponent conduct these steps would 
minimize the time the Forest Service needs to process a proposal and 
would reduce the impact the proposal may have on limited Forest Service 
resources. The applicant also would minimize the proposal processing 
fee charged by the Forest Service and, in many cases, expedite the 
Forest Service's processing of the proposal.
    Paragraph (c)(1) provides the basis for processing fees. Paragraph 
(c)(1)(i) states that fixed fees are based on a projected cost to 
process proposals that are identified as being subject to a fixed fee. 
In its agency directives, the Forest Service would specify that fixed 
fees would apply to mineral material disposals of 25 cubic yards or 
less from community pits or common use areas. This action was 
identified for a fixed fee in the interest of administrative efficiency 
because the Forest Service processes many of these minimal-impact 
actions annually. The fixed fee amount was based on an assumed 
processing cost that the Forest Service believes is a reasonable 
estimate of agency effort expended on these actions. The agency will 
continue to collect and analyze cost data to assess the reasonableness 
of the proposed fixed fee.
    Paragraph (c)(1)(ii) states that fees for the six processing 
categories would be based on costs incurred by the agency to formally 
acknowledge receipt and initial review of a proposal, conduct 
environmental reviews and analyses, meet with the proponent, and 
prepare documentation and permits, as applicable. These costs would be 
specific to a project and would not include the cost of agency services 
or benefits that are programmatic in nature or benefit the general 
public. This paragraph would emphasize that processing work conducted 
by the proponent, or a third party contracted by the proponent, 
minimizes the costs the Forest Service will incur and thus would reduce 
the processing fee.
    Paragraph (c)(2) provides the Forest Service Handbook reference 
where the

[[Page 38420]]

amounts for the fixed fee action and categories 1 through 4 would be 
published. Categories 5 and 6 fees are determined on a case-by-case 
basis.
    Table 2 below displays the fees proposed to be implemented under 
the rule. The table shows proposed fees for both the fixed fee action 
and for each of the six processing categories.

          Table 2--Proposed Mineral Program Cost Recovery Fees
------------------------------------------------------------------------
              Action/category                       Proposed fee
------------------------------------------------------------------------
Low Volume (<=25 cubic yards) Mineral       $65.
 Material Disposal.
Category 1................................  $271.
Category 2................................  $1,084.
Category 3................................  $2,168.
Category 4................................  $3,522.
Category 5 (Master Agreements)............  Case-by-case; Determined by
                                             agreement.
Category 6................................  Case-by-case.
------------------------------------------------------------------------

    The proposed fee for low-volume mineral material disposals is based 
on two Federal work hours of processing time multiplied by an hourly 
rate of $32.57 per hour. The hourly rate used in the fee calculation 
includes salary, leave, benefits, and indirect costs. The hourly rate 
uses the 2019 salary for a Rest-of-US (RUS) General Services (GS) 5, 
Step 05 Federal employee which is assumed to be representative of the 
grade level of an employee typically processing low volume mineral 
material disposals from existing community pits and common use areas.
    To determine the proposed cost recovery fee for categories 1 
through 4, an average hourly wage was multiplied by the midpoint of the 
work hour range. The proposed fees are based on an average rate of 
$67.74 per hour of federal work time. This is the same average hourly 
wage (which includes pay additives and indirect costs) that was used in 
BLM's proposed revised fee rates for its right-of-way program published 
in the Federal Register on November 7, 2022 (87 FR 67306). The BLM's 
processing and monitoring cost data is presumed to reasonably represent 
costs incurred by the Forest Service within its minerals program 
because the work involves the same types of tasks at both agencies and 
is generally performed by employees at similar GS and experience 
levels. Given the recurring need for minerals projects to sometimes 
require a Forest Service special use authorization or a BLM right-of-
way grant, it is important to have a consistent fee structure across 
agencies and programs. For this reason, the Forest Service proposes 
cost recovery fee rates for minerals that will mirror BLM's proposed 
revised fee rates for its right-of-way program published in the Federal 
Register on November 7, 2022 (87 FR 67306).
    Paragraph (c)(3) describes criteria specific to processing fee 
categories for proposals not subject to a fixed fee. Paragraph 
(c)(3)(i) presents a table of the six processing fee categories and the 
associated Federal work hours involved. Paragraph (c)(3)(ii) provides 
for the use of master agreements as an instrument to recover costs 
associated with a proposal, a group of proposals, or similar proposals 
for a specified geographic area. Paragraphs (c)(3)(ii)(A) through (F) 
contain the minimum content requirements for a master agreement. An 
example of where a master agreement may be used is in recovering costs 
for processing an oil and gas Master Development Plan (Sec.  
228.105(a)(1)) for multiple proposed wells. Paragraph (c)(3)(iii) 
describes requirements for category 6 processing actions which include 
determining fees on a case-by-case basis and the Forest Service and the 
proponent entering into a written agreement that consists of a work 
plan and a financial plan.
    Paragraph (c)(4) states that processing costs incurred for 
processing multiple proposals must be paid in equal shares or on a 
prorated basis, as deemed appropriate by the authorized officer, among 
the proponents involved.
    Paragraph (c)(5) describes procedures for how fees for proposals 
assigned to a processing category would be billed and revised. 
Paragraph (c)(5)(i) states that the authorized officer would issue the 
proponent a bill for the processing fee when the Forest Service is 
ready to process the action. Paragraph (c)(5)(ii) states that once a 
proposal is assigned to a processing category, it would not be 
reclassified into a higher category unless previously undisclosed 
information is discovered. Should that happen, the authorized officer 
would notify the proponent in writing before continuing with processing 
the proposal. The proponent has the option to accept the change, revise 
the proposal, withdraw the proposal, or invoke the rule's fee dispute 
procedure at Sec.  220(e).
    Paragraph (c)(6) through (6)(iii) provide direction on paying 
processing fees. The agency would not initiate processing a proposal 
until the prescribed fee was paid in full. The fee for a proposal 
subject to a fixed fee is due when the proposal is filed with the 
Forest Service. For all other proposals, payment of the processing fee 
is due within 30 days after the Forest Service issues a bill for the 
fee. When estimated costs are lower than the final processing costs for 
category 5 and 6 proposals, paragraphs (c)(6)(ii) and (iii) require 
proponents to pay the difference.
    Paragraph (c)(7) addresses refunds of processing fees. Paragraphs 
(c)(7)(i) through (7)(iv) would specify that that processing fees for 
fixed fee proposals and for categories 1 through 4 are nonrefundable 
and would describe under what conditions the processing fee for 
category 5 and 6 proposals would be refunded to a proponent or credited 
towards monitoring fees due. If a proponent withdraws a category 5 or 6 
proposal, the proponent is responsible for any costs incurred by the 
Forest Service in terminating processing of the proposal.
    Paragraphs (d) through (5)(iii) establish procedures for the Forest 
Service to recover costs incurred to monitor compliance for 
authorizations issued by the Forest Service under the 36 CFR part 228 
regulations. Monitoring would be conducted at a frequency commensurate 
with the work necessary to ensure compliance with the surface use 
requirements of an authorization.
    Paragraph (d)(1) describes the basis for monitoring fees. For 
monitoring fees in categories 1 through 4, holders of approved 
operating plans are assessed fees based upon the estimated time needed 
for Forest Service monitoring to ensure compliance with surface use 
requirements during the construction or reconstruction phase of the 
approval and rehabilitation of the construction or reconstruction site. 
Category 5 and category 6 monitoring fees shall be based upon the 
agency's estimated costs to ensure compliance with the surface use 
terms and conditions during all phases of the authorized activity, 
including but not limited to monitoring to ensure compliance with 
surface use requirements during the construction or reconstruction 
phase of the authorization and rehabilitation of the construction or 
reconstruction site. Monitoring for all categories does not include 
billings, maintenance of case files, or scheduled inspections to 
determine compliance generally with the terms and conditions of an 
authorization.
    Paragraph (d)(2) states monitoring fees for authorizations assigned 
to categories 1 through 4 would be assessed from a fee schedule 
published in the Forest Service directives. Monitoring fees for 
category 5 and category 6 authorizations would be determined on a case-
by-case basis.
    Paragraph (d)(3)(i) displays a table of the six monitoring 
categories and the range of Federal work hours for each. Paragraph 
(d)(3)(ii) provides

[[Page 38421]]

requirements for the use of master agreements for monitoring and 
paragraph (d)(3)(iii) provides requirements for category 6 cost 
recovery cases. The monitoring fee categories use the same categories 
and Federal work hours as the processing fee categories.
    Paragraphs (d)(4)(i) through (iii) contain requirements for billing 
and paying monitoring fees. Paragraph (d)(4)(i) specifies that 
monitoring fees for categories 1 through 4 must be paid in full at the 
time the authorization is issued. Estimated monitoring fees for 
categories 5 and 6 must also be paid in full when the authorization is 
issued unless the authorized officer and the proponent agree in writing 
to a payment schedule. Paragraph (d)(4)(ii) provides guidance for 
reconciling category 5 cases when the estimated monitoring costs are 
lower than the final actual monitoring costs and similarly, paragraph 
(d)(4)(iii) provides guidance for reconciling monitoring costs for 
category 6 cases.
    Paragraphs (d)(5)(i) through (iii) contain requirements for refunds 
of monitoring fees. Paragraph (d)(5)(i) states that monitoring fees for 
categories 1 through 4 are nonrefundable. Paragraph (d)(5)(ii) 
addresses reconciling monitoring fee overpayments for category 5 cases 
and paragraph (d)(5)(iii) addresses reconciling overpayments for 
category 6 cases.
    Paragraphs (e)(1) through (5) address proponent disputes of 
processing or monitoring fee assessments. Paragraph (e)(1) states that 
the assessment for a fixed fee case is not subject to review under this 
section. The fixed fee assessment would be established as a part of 
this rulemaking process and would not subject to adjustment by an 
administrative review process once the rule is finalized. Paragraph 
(e)(2) allows proponents who dispute the processing or monitoring fee 
category assigned by the authorized officer for category 1 through 4 
cases or with the estimate of processing or monitoring costs for 
category 5 and 6 cases. The paragraph states that before the disputed 
fee is due, the proponent may submit a written request, along with 
supporting documentation, to the immediate supervisor of the authorized 
officer who made the determination for the case. Paragraphs (e)(3)(i) 
and (ii) provide that if the proponent pays the disputed processing 
fee, processing of the case would continue while the fee is pending the 
supervisory officer's review; and if the proponent chooses not to pay 
the disputed fee, the Forest Service will suspend processing the case 
until the fee dispute is resolved. Paragraphs (e)(4)(i) and (ii) 
provide that if the proponent pays a disputed monitoring fee, the 
authorization shall be issued or use and occupancy allowed to continue 
while the fee is pending the supervisory officer's review; and if the 
proponent chooses not to pay the disputed fee, the Forest Service will 
not issue the authorization in question or suspend the activity until 
the fee dispute is resolved. Paragraph (e)(5) directs the immediate 
supervisor of the authorized officer to render a decision on a disputed 
fee within 30 days of receipt of the proponent's written request, 
otherwise the dispute will be decided in favor of the proponent.
    Paragraphs (f)(1) through (2) identify the circumstances under 
which the authorized officer may waive all or part of a processing or 
monitoring fee. Waiving all or any part of a fee pursuant to these 
criteria would be discretionary on the part of the authorized officer 
and would not be an entitlement of the proponent or holder.
    Paragraph (f)(1)(i) provides for waiving fees for a local, State, 
Federal or tribal governmental entity that waives similar fees for 
comparable, like-kind service provided to the Forest Service.
    Paragraph (f)(1)(ii) allows the authorized officer to waive part of 
the processing fee when a major portion of the costs results from 
issues not related to the actual project being proposed. For example, a 
proposal for a mineral material sale is requested from a community pit 
that lacks sufficient material to meet the request. The pit in question 
is expected to experience continued demand for material from the public 
and local government, so the Forest Service would like to analyze a 
larger area for a pit expansion. Although the analysis is triggered by 
the new proposal, the purpose of the analysis is only minimally 
attributable to the proponent's proposed use and occupancy. Thus, it is 
inappropriate to assess that proponent for the total cost of such an 
analysis.
    Paragraph (f)(1)(iii) provides for a waiver or partial waiver of 
processing or monitoring fees when a proposed project is intended to 
prevent or mitigate damage to real property or to mitigate hazards to 
public health and safety resulting from an act of God, an act of war, 
or negligence of the United States. For example, a storm destroys a 
culvert crossing of a road that was constructed to provide access to an 
oil and gas well located within a federal lease on NFS land. The 
operator offers to replace the culvert and mitigate the associated 
damages that have resulted from the storm, and the repair work requires 
disturbance beyond what was authorized in the original surface use plan 
of operations. The fee for processing a proposal for this work may be 
waived by the authorized officer because of the public and/or agency 
benefits to be realized by the proposed use (that is, mitigating 
damages to National Forest System lands and resources by repairing the 
culvert crossing and adjacent lands to standards established by the 
Forest Service).
    Paragraph (f)(1)(iv) provides for a waiver or partial waiver of 
processing or monitoring fees when a proposed activity is necessary to 
move a facility or improvement to a new location to comply with public 
health and safety or environmental requirements that were not in effect 
at the time the authorization was issued. For example, the discovery of 
habitat critical to threatened or endangered species requires an 
authorized officer to relocate a permitted access road for a mineral 
project. The authorized officer may waive the fee to process the 
holder's proposal for relocation of the road to avoid its use within 
the critical habitat.
    Paragraph (f)(1)(v) provides for a waiver or partial waiver where 
an improvement or facility must be relocated because the land is needed 
by a Federal agency or Federally funded project for an alternative 
public purpose. For example, the Forest Service decides to construct a 
recreational trail in a location occupied by an authorized use, such as 
an access road to an oil and gas well. The new recreational trail 
requires relocation of a segment of the access road to preclude user 
conflicts between the operator and the recreating public. The road 
relocation requires a new or amended authorization. Processing fees 
associated with the operator's proposal for the authorization may be 
waived by the authorized officer.
    Paragraph (f)(1)(vi) provides for waiving fees for processing a 
proposal or monitoring an authorization when studies undertaken in 
processing the proposal have a public benefit or the proposed facility 
or project would provide a free service to the public or to a USDA 
program.
    Paragraph (f)(2) requires that requests for waivers be in writing 
and include an analysis of the applicability of the waiver criteria.
    Paragraph (g) provides that decisions to assess a processing or 
monitoring fee or to determine the fee category or amount are not 
appealable. Paragraph (g) also would provide that a decision in 
response to a disputed processing or monitoring fee is not subject to 
administrative appeal.

[[Page 38422]]

    Paragraph (h)(1) provides that the proposed schedules for 
processing and monitoring fees applicable to mineral proposals and 
authorizations would be set out in the Forest Service directive system. 
This paragraph specifies that the agency will keep fee schedules 
current with annual adjustments of fee rates in each cost category 
using the Implicit Price Deflator-Gross Domestic Product (IPD-GDP) 
index and will round up changes in the rates to the nearest dollar. The 
Forest Service will strive to update fee schedules on a calendar year 
basis. Fee schedules will remain in effect until updates are published 
in agency directives. Because the fee recalculations per the IPD-GPD 
are simply based on a mathematical formula, the Forest Service will 
update the fees in the directive without opportunity for notice and 
comment. In accordance with OMB Circular A-25, the Forest Service will 
review user charges biennially to assure whether existing charges need 
adjusting to reflect unanticipated changes in costs or market values.
    Proposed Sec.  228.203 Information collection requirements. This 
section states that information collected under Subpart F is required 
by law or already approved for use under existing information 
collection approvals for Part 228.

Proposed Changes to the Authority Listing for Part 228

    The authority listing would be expanded to include references to 
other statutes that mandate action by the Forest Service as surface 
management agency in responding to mineral proposals as well as a 
reference to the IOAA.

Proposed Changes to Subpart A--Locatable Minerals

Proposed 228.4 Plan of Operations--Notice of Intent--Requirements
    Paragraph (a)(3) would be revised to state that an operator 
submitting a plan of operations must pay a processing fee determined by 
the authorized officer in accordance with the cost recovery 
requirements of Subpart F.
    Paragraph (e) would be revised to state that for each proposed 
modification to an approved plan of operations an operator must pay a 
processing fee determined by the authorized officer in accordance with 
the cost recovery requirements of Subpart F.
Proposed 228.5 Plan of Operations--Approval
    Paragraph (a)(1) would be revised to state that approval of a plan 
of operations is conditioned upon the operator paying a monitoring fee 
as determined by the authorized officer in accordance with the cost 
recovery requirements of Subpart F.

Proposed Changes to Subpart B--Leasable Minerals

    Proposed 228.20 Cost Recovery Fees. New paragraphs (a) through (c) 
would be added to this Subpart to require cost recovery for costs 
incurred by the Forest Service to provide responses required by law or 
regulation for leasable mineral proposals. Paragraph (a) would be 
specific to recovery of agency costs for responding to lease, 
exploration license, and prospecting permit proposals for coal and 
other solid leasable minerals which are filed with the BLM. Paragraphs 
(a)(1) through (4) would prescribe the process for recovering agency 
costs when the successful bidder for a competitively bid lease is 
someone other than the proponent. The process described is like that 
utilized by the BLM for competitive leasing of these resources. 
Paragraph (b) would require recovering costs for the Forest Service to 
review proposals to conduct operations for leasable minerals other than 
oil and gas. This would include applications required to be filed with 
the Forest Service under special legislation and those filed with the 
BLM, OSMRE or a State entity with delegated coal program authority. Oil 
and gas activity is excluded from this section because it is addressed 
in proposed changes to Subpart E. Paragraph (c) would direct the 
authorized officer to charge a monitoring fee for leasable mineral 
authorizations issued by the Forest Service and required by law, but 
not addressed elsewhere in Part 228, such as approval of surface use 
for geothermal activity within the Newberry National Volcanic Monument.
    Proposed 228.21 Information Collection. This new section would be 
added to address information collection requirements of 5 CFR part 
1320.

Proposed Changes to Subpart C--Disposal of Mineral Materials

    Proposed 228.43 Policy governing disposal. Paragraph (b) would be 
revised to state that the authorized officer will assess a fee to cover 
the cost of issuing and administering a contract or permit in 
accordance with the cost recovery requirements of Subpart F.
    Proposed 228.51 Fees and bonding. This section would be retitled to 
include the topic ``fees'' and add a new paragraph (a) to include 
authority for recovery of costs for mineral material permits and 
contracts in accordance with the cost recovery requirements of Subpart 
F.
    Proposed 228.58 Competitive Sales. A new paragraph (b) would be 
added to establish requirements for competitive mineral material sales. 
The Forest Service proposes to utilize a cost recovery process that 
mimics that used by the BLM for its competitive mineral material sales 
to account for situations where the successful bidder for a sale is 
someone other than the applicant. Existing paragraphs in the section 
would be redesignated to accommodate the addition of the new paragraph. 
Paragraph (b)(2) in the existing rule would be redesignated as 
paragraph (c)(2) and amended to state that the advertisement of sale 
must specify the applicable processing and monitoring fees that a 
successful bidder would be responsible for. Paragraph (d)(4) in the 
existing rule would be redesignated as paragraph (e)(4) and amended to 
state that a successful bidder would be required to pay the processing 
and monitoring fees specified in the sale advertisement within 30 days 
of receiving the sales contract.
    Proposed 228.63 Removal under terms of a timber sale contract. This 
paragraph would be amended to include language for the authorized 
officer to charge a processing and monitoring fee in accordance with 
the cost recovery requirements of Subpart F for operating plans 
associated with timber sales that require the use of mineral materials 
from NFS lands for various physical improvements.

Proposed Changes to Subpart E--Oil and Gas Resources

    Proposed 228.106 Operator's submission of surface use plan of 
operations. Paragraph (a) would be amended to include language to state 
that the authorized officer shall charge a processing fee and, as 
appropriate, a monitoring fee for each surface use plan of operations 
in accordance with the cost recovery requirements of Subpart F.
    Proposed 228.107 Review of surface use plan of operations. 
Paragraph (d) would be amended to state that for decisions to approve a 
surface use plan of operations, the authorized Forest officer's 
notification to BLM and the operator will include the monitoring fee 
that the operator must pay, in accordance with the cost recovery 
requirements of Subpart F, before surface use begins if the BLM 
approves the permit to drill. Paragraph (e) would be amended to state 
that a supplemental surface use plan of operation shall be subject to 
cost recovery and reviewed in the same manner as an initial surface use 
plan of operations.

[[Page 38423]]

Regulatory Certifications

Executive Orders 12866 and 13563 Regulatory Planning and Review

    This proposed rule has been reviewed under USDA procedures and 
Executive Order (E.O.) 12866, on regulatory planning and review, and 
the major rule provisions of the Small Business Regulatory Enforcement 
and Fairness Act (5 U.S.C. 800).
    The Forest Service has determined that the proposed rule will not 
have an annual effect on the economy of $100 million or more. It will 
not adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities. This determination is based on the Initial Regulatory 
Flexibility Act (IRFA) analysis the Forest Service prepared in 
conjunction with this proposed rule. For more detailed information, see 
the IRFA prepared for this proposed rule. The IRFA has been posted in 
the docket for the proposed rule on the Federal eRulemaking Portal: 
https://www.regulations.gov. In the Searchbox, enter ``RIN 0596-AD47,'' 
click the ``Search'' button, open the Docket Folder, and look under 
Supporting Documents. Comments are invited on the data, methodology, 
and results of the Forest Service's IRFA analysis completed for the 
proposed rule per the invitation and directions for public comment 
provided in the summary at the beginning of this notice.
    This rule will not create inconsistencies or otherwise interfere 
with an action taken or planned by another agency. This proposed rule 
does not change the relationships of the Forest Service's minerals 
programs with other agencies' actions. These relationships are based in 
law, regulation, agreements, and memoranda of understanding that would 
not change with this proposed rule.
    In addition, this proposed rule would not materially affect the 
budgetary impact of entitlements, grants, loan programs, or the rights 
and obligations of their recipients. However, this rule does propose to 
create new fees for processing documents associated with the agency's 
minerals programs because of the IOAA, 31 U.S.C. 9701 as well as 
recommendations made by the GAO (Report No. GAO-16-165). As stated 
earlier in this preamble, the IOAA authorizes the Forest Service to 
charge proponents the cost of processing documents. In addition, the 
IOAA states that these charges should cover the agency's costs for 
these services to the degree practicable. Federal policy per OMB 
Circular A-25 directs agencies to assess user charges against 
identifiable recipients of special benefits derived from Federal 
activities.
    Finally, although this rule does not raise novel legal issues, it 
is possible that it may raise novel policy issues because the agency 
would charge processing and monitoring fees that the Forest Service 
does not currently impose for mineral-related activity.

Regulatory Flexibility Act

    For this proposed rule, fee increases for some small businesses in 
the mineral materials sector are estimated to be in the range of 3 
percent to 4 percent of annual receipts. The Forest Service could not 
conclude that costs to that subset of small businesses are sufficiently 
low or that net benefits of the proposed rule are sufficiently high to 
certify that the proposed rule would not have a significant economic 
impact on a substantial number of small entities. Instead, the Forest 
Service has prepared an initial RFA (IRFA) analysis of the economic 
impacts of the proposed rule on small entities that seek or hold 
mineral-related authorizations for use and occupancy of NFS lands.
    For the purposes of this section, a small entity is defined by the 
Small Business Administration (SBA) for mining (broadly inclusive of 
metal mining, coal mining, oil and gas extraction, and the mining and 
quarrying of nonmetallic minerals) as an individual, limited 
partnership, or small company considered to be at arm's length from the 
control of any parent companies, with fewer than 500 employees. The SBA 
defines a small entity differently, however, for leasing Federal land 
for coal mining: a coal lessor is a small entity if it employs not more 
than 250 people, including people working for its affiliates. The 
Forest Service notes that this proposed rule does not affect service 
industries, for which the SBA has a different definition of ``small 
entity.''
    The proposed rule is expected to have non-significant effects on a 
substantial number of entities that conduct activity on NFS lands since 
most fit SBA's ``small entity'' definition and nearly all of them will 
face fee increases for activities on NFS lands. As presented in the 
IRFA analysis prepared by the Forest Service, and available as a 
supporting document for this proposed rule, except for mineral 
materials, when the total estimated fees paid by these entities are 
expressed as a percentage of the sales value of production from NFS 
land, the relative size and effect of the fees are small and are not 
expected to have a significant effect on these small entities.
    When the total fee increases for leasable actions were compared to 
receipt data of production from Federal leases in 2017, the fee 
increases are 0.06 percent of receipts from NFS lands. Assuming the 
burden of the fee increases are distributed evenly among all firms 
operating on NFS lands the fee increases amounted to 0.30 percent of 
receipts attributable to small entities. Similarly, the total fee 
increases for locatable actions were 0.30 percent of estimated receipts 
attributable to NFS lands in 2017. Again, assuming fee increases are 
distributed evenly by active firms, the fee increases would be 2.11 
percent of projected annual receipts from small entities engaged in 
locatable mineral actions on NFS lands. These fee increases are not 
expected to cause a significant impact on the small entities engaged in 
leasable or locatable mineral activity on NFS lands.
    Within the mineral materials program, the proposed fee increases 
were estimated to be 61 percent of the total reported production value 
for mineral materials disposals from NFS lands in 2017. Assuming the 
burden of the fee increases is distributed evenly among all firms 
operating on NFS lands, the fee increases for mineral materials 
disposals amounted to 125 percent of receipts attributable to small 
entities in 2017. These percentages would suggest the potential of a 
significant impact on operators, including small entities, operating on 
NFS lands. However, the unique nature of mineral material production on 
NFS lands as being a high volume/low value commodity with involvement 
of high numbers of individuals and small businesses warranted a more 
detailed analysis beyond the coarse economic filter of comparing total 
fee collections to total receipts.
    The proposed fees for mineral materials are comprised of a fixed 
fee for low volume disposals, a fee determined from a fee schedule for 
moderately complex proposals, and a case-by-case fee for the most 
complex proposals. For the five-year period 2015 through 2019, low 
volume disposals (that is, less than 25 cubic yards per disposal) made 
up approximately 83 percent of total number of mineral material 
disposals from NFS land, but only 0.2 percent of total disposed volume. 
Low volume disposals are largely made to entities for non-commercial 
purposes, and when coupled with the low proposed flat fee for this type 
of disposal, there is not expected to be a significant impact to

[[Page 38424]]

small business or governmental entities as a result of implementing the 
rule.
    Analysis of mineral material disposals for 2019 as a representative 
year found that 240 entities requesting disposals exceeding 25 cubic 
yards per disposal accounted for more than 99 percent of the total 
volume of mineral material disposed from NFS lands during the year. 
Disposal requests made by these 240 entities are expected to have 
dominated agency time dedicated to processing mineral material requests 
in 2019. However, within these 240 entities, disposal volumes, and 
therefore cost recovery fees, are expected to be highly skewed toward a 
small number of large operators. For example, 93 percent of the mineral 
material volume disposed in 2019 was allocated to only 11 of the 240 
entities, or 1 percent of all entities requesting disposals for the 
year. Average disposal volume for these 11 entities ranged from 16,000 
to 280,000 cubic yards per disposal request. Most of the time needed to 
satisfy NEPA, and therefore process disposal requests, are expected to 
be concentrated in this small subset of entities. Five of these 11 
entities are large business or large governments with annual revenues 
over $100 million and therefore not classified as small businesses. 
Three of the entities have annual revenues between $2.7 million to 
$10.7 million for whom the average annual cost of preparing an 
environmental assessment would be less than 2.5 percent of annual 
revenues. The remaining three entities in this subgroup are small 
county governments, where proposed fees could entail significant 
economic impacts but would be eligible to have fees waived under the 
proposed rule waiver provisions.
    The analysis further showed the 225 entities (16 percent of all 
entities requesting disposals on NFS land in 2019) that requested 
disposals between 25 and 16,000 cubic yards during 2019, would 
experience fees amounting from 1 percent to 4 percent of annual 
receipts for small businesses. Out of 225 entities, only 63 (less than 
5 percent of all entities requesting disposals from NFS land in 2019) 
that submitted multiple disposal requests during the year are expected 
to be subject to fees in the range of 3 percent to 4 percent of annual 
receipts. The Forest Service believes this low number of entities would 
not constitute a substantial number of small entities experiencing a 
significant economic impact.
    We note that in all areas, the proposed fees are charged only once 
per proposal and, therefore, generally the impact is spread over 
several years of industry production. This has the effect of lessening 
the impact of fees even further. In addition, bids at lease and 
competitive mineral material sales reflect fair market value, so we can 
expect associated bonus bids may decline in response to the increased 
processing costs.
    The estimate of the proposed fees for processing locatable plans of 
operation did not include costs associated with a Forest Service 
certified mineral examiner (CME) preparing reports that sometimes are 
required to inform the authorized officer's decision on operating plans 
and may have possible effects on small entities. Although the cost for 
a CME to complete a mineral examination report (such as, validity exam, 
mineral classification report, or surface use determination) would 
increase the fee paid by a proponent to process a plan of operations, 
it would not be significant compared to the capital expenditures 
associated with many locatable mineral mining ventures, which may range 
from hundreds of thousands of dollars for small operations to hundreds 
of millions of dollars for large ventures. The smaller the entity, the 
more likely the proposed plan of operations will be less complex or 
involve fewer mining claims, reducing the time needed for the CME to 
review and document their findings. Because fees for a proposed plan of 
operations needing CME engagement are more likely to involve a case-by-
case tracking of actual agency time and costs, plans that are less 
complex or involve fewer claims will generally be charged fees at the 
low end of the possible range. Impacts to small entities is also less 
likely because plans of operation needing a CME input are a relatively 
rare occurrence. The Forest Service estimates only around two percent 
of the locatable plans of operations that are processed in a year will 
need a mineral examination report.

Energy Effects

    The proposed rule was reviewed under E.O. 13211, Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use. The Forest Service finds the proposed rule is not likely to have a 
significant effect (positive or negative) on energy supply or 
distribution. The regulation would be administrative in nature and does 
not impact agency decisions about leasing and subsequent development of 
energy resources on NFS lands.
    The proposed rule is not expected to have a significant adverse 
effect on the supply, distribution, or use of energy; competition or 
prices; other agency actions related to energy; or raise novel issues 
regarding adverse effects on energy. The proposed rule is therefore not 
expected to be a significant energy action or require a statement of 
energy effects, consistent with OMB guidance for implementing E.O. 
13211.

Consultation and Coordination With Indian Tribal Governments

    Pursuant to E.O. 13175, the agency has assessed the impact of this 
proposed rule on Indian tribal governments and expects that the 
proposed rule would not have direct and substantial effects on 
federally recognized Indian tribes. The proposed rule consists of 
administrative procedures for recovering costs for processing and 
monitoring proposals to conduct mineral activity and, as such, has no 
direct effect on tribal consultation requirements for individual 
mineral proposals on NFS land.
    The Agency has also determined that this proposed rule would not 
impose substantial direct compliance costs on Indian tribal 
governments. This proposed rule does not mandate tribal participation 
in the Forest Service cost recovery process, and allows for waivers of 
cost recovery for tribal entities under certain circumstances.

Environmental Impact

    This proposed rule would establish administrative fee categories 
and procedures for charging, collecting, and reconciling fees to 
process notices, requests, and proposals and monitor authorizations on 
National Forest System lands per the regulations of 36 CFR part 228. 
The charging of fees would have no bearing on where or how mineral 
projects are conducted on NFS lands. No environmental impacts are 
predicted with implementation of the rule. Forest Service National 
Environmental Policy Act (NEPA) regulations at 36 CFR 220.6(d)(2) 
excludes from documentation in an environmental assessment or impact 
statement ``rules, regulations, or policies to establish Service-wide 
administrative procedures, program processes, or instructions.'' The 
agency's preliminary assessment is that this proposed rule falls within 
this category of actions and that no extraordinary circumstances exist 
which would require preparation of an environmental assessment or 
environmental impact statement. A final determination will be made upon 
adoption of the final rule.

Federalism

    The agency has considered this proposed rule under the requirements 
of E.O. 13132, Federalism, and has made a preliminary assessment that 
the rule conforms with the Federalism

[[Page 38425]]

principles set out in the Executive Order; would not impose any 
compliance costs on the States; and would not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Moreover, the 
cost recovery processing and monitoring fees set out in this proposed 
rule may be waived or partially waived for State and local government 
entities that waive similar fees they might otherwise assess the Forest 
Service. The proposed rule may result in a slight decrease in bonus 
bids for coal and other solid mineral leases, which are shared with the 
States. Based on comments received on this proposed rule, the agency 
will consider if any additional consultation will be needed with State 
and local governments prior to adopting a final rule.

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in E.O. 12630, and it has been 
determined that the proposed rule does not pose the risk of a taking of 
constitutionally protected private property. The proposed rule has no 
bearing on property rights, but only concerns recovery of government 
processing costs for actions that benefit certain entities that acquire 
rights and seek use and occupancy of NFS lands to extract publicly 
owned resources. Therefore, the Forest Service has determined that the 
rule would not cause a taking of private property or require further 
discussion of takings implications under the Executive Order.

Civil Justice Reform Act

    This proposed rule has been reviewed under E.O. 12988, Civil 
Justice Reform. The Forest Service finds that this rule would not 
unduly burden the judicial system. If this proposed rule were adopted, 
(1) all State and local laws and regulations that are in conflict with 
this proposed rule or that would impede its full implementation would 
be preempted; (2) no retroactive effect would be given to this proposed 
rule; and (3) it would not require administrative proceedings before 
parties may file suit in court challenging its provisions.

Unfunded Mandates

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

Controlling Paperwork Burdens on the Public

    This proposed rule does not contain any new record-keeping or 
reporting requirements, or other information collection requirements as 
defined in 5 CFR part 1320 that are not already required by law or not 
already approved for use. The information that would be collected by 
the Forest Service as a result of this action have been approved by the 
Office of Management and Budget (OMB) under existing Control Numbers 
0596-0022 (locatable minerals), 0596-0081(mineral materials), and 0596-
0101 (oil and gas). In recovering costs for providing responses 
required by law or regulation for coal and non-energy solid leasable 
minerals, the Forest Service will utilize information provided under 
existing OMB clearances issued to the Bureau of Land Management and the 
Office of Surface Mining Reclamation and Enforcement. Accordingly, the 
review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.) and its implementing regulations at 5 CFR part 1320 do 
not apply.

List of Subjects in 36 CFR Part 228

    Mineral resources.

    Therefore, for the reasons set forth in the preamble, the Forest 
Service proposes to amend part 228 of title 36 of the Code of Federal 
Regulations as follows:

PART 228--MINERALS

0
1. The authority citation for part 228 is revised to read as follows:

    Authority:  16 U.S.C. 478, 551; 30 U.S.C. 191, 201, 207, 226, 
352, 601, 611, 1014, 1272; 31 U.S.C. 9701; 94 Stat. 2400.

0
2. Amend Sec.  228.4 by revising paragraphs (a)(3) and (e) to read as 
follows:


Sec.  228.4  Plan of operations--notice of intent--requirements.

    (a)* * *
    (3) An operator shall submit a proposed plan of operations to the 
District Ranger having jurisdiction over the area in which operations 
will be conducted in lieu of a notice of intent to operate if the 
proposed operations will likely cause a significant disturbance of 
surface resources. An operator also shall submit a proposed plan of 
operations, or a proposed supplemental plan of operations consistent 
with Sec.  228.4(d), to the District Ranger having jurisdiction over 
the area in which operations are being conducted if those operations 
are causing a significant disturbance of surface resources but are not 
covered by a current approved plan of operations. The operator must pay 
a processing fee for each proposed plan of operations as determined by 
the authorized officer in accordance with the cost recovery 
requirements of Sec.  228 Subpart F. The requirement to submit a plan 
of operations shall not apply to the operations listed in paragraphs 
(a)(1)(i) through (v). The requirement to submit a plan of operations 
also shall not apply to operations which will not involve the use of 
mechanized earthmoving equipment, such as bulldozers or backhoes, or 
the cutting of trees, unless those operations otherwise will likely 
cause a significant disturbance of surface resources.
* * * * *
    (e) At any time during operations under an approved plan of 
operations, the authorized officer may ask the operator to furnish a 
proposed modification of the plan detailing the means of minimizing 
unforeseen significant disturbance of surface resources. The operator 
must pay a processing fee for each proposed modification to the plan as 
determined by the authorized officer in accordance with the cost 
recovery requirements of Sec.  228 Subpart F. If the operator does not 
furnish a proposed modification within a time deemed reasonable by the 
authorized officer, the authorized officer may recommend to his 
immediate superior that the operator be required to submit a proposed 
modification of the plan. The recommendation of the authorized officer 
shall be accompanied by a statement setting forth in detail the 
supporting facts and reasons for his recommendations. In acting upon 
such recommendation, the immediate superior of the authorized officer 
shall determine:
* * * * *
0
3. Amend Sec.  228.5 by revising paragraph (a)(1) to read as follows:


Sec.  228.5  Plan of operations--approval.

    (a) * * *
    (1) Notify the operator that he has approved the plan of operations 
conditioned upon payment of a monitoring fee as determined by the 
authorized officer in accordance with the cost recovery requirements of 
Sec.  228 Subpart F; or
* * * * *

[[Page 38426]]

0
4. Add new Sec.  228.20 to Subpart B--Leasable Minerals to read as 
follows:

Subpart B--Leasable Minerals


Sec.  228.20  Cost Recovery Fees.

    (a) The authorized officer shall charge applicants a fee to recover 
costs to process competitive and non-competitive lease, exploration 
license, and prospecting permit applications for coal or other solid 
leasable minerals on National Forest System lands that are filed with 
the Bureau of Land Management and require a response from the Forest 
Service by law or regulation. Fees are subject to the cost recovery 
requirements of Sec.  228 Subpart F. The cost recovery process for 
competitive leases under this section follows:
    (1) The applicant nominating coal or other solid mineral lands for 
competitive leasing under this section must pay a processing fee 
determined by the authorized officer in accordance with the cost 
recovery requirements of Sec.  228 Subpart F, modified by the 
provisions of this section. The authorized officer shall request the 
Bureau of Land Management to include a statement in the notice of lease 
sale of the cost recovery fee paid to the Forest Service by the 
applicant up to 30 days before the competitive lease sale.
    (2) The applicant nominating the tract for competitive leasing must 
pay the cost recovery amount before the Forest Service takes action to 
provide its response to the Bureau of Land Management.
    (3) The successful bidder, if someone other than the applicant, 
must pay the Forest Service the amount of Forest Service cost recovery 
specified in the sale notice.
    (4) If the successful bidder is someone other than the applicant, 
the Forest Service will refund to the applicant the amount paid under 
paragraph (b)(1) of this section.
    (b) For all leasable minerals other than oil and gas, the 
authorized officer shall charge proponents a fee to recover the Forest 
Service's cost to process proposals to conduct operations on leases, 
permits or licenses when such proposals are filed with another 
government agency and require a response from the Forest Service by law 
or regulation. Fees will be determined by the authorized officer in 
accordance with the cost recovery requirements of Sec.  228 Subpart F.
    (c) The authorized officer shall charge holders a fee to recover 
monitoring costs for authorizations issued by the Forest Service which 
are required by law and not addressed elsewhere in part 228. Monitoring 
fees will be determined in accordance with the cost recovery 
requirements of Sec.  228 Subpart F.


Sec.  228.21  Information collection requirements.

    The information collection requirements of this subpart are already 
approved for use through various Office of Management and Budget 
information collection approvals issued to the Bureau of Land 
Management for issuing and managing Federal mineral leases and to the 
Office of Surface Mining Reclamation and Enforcement for managing coal 
mining operations on Federal lands.
0
5. Amend Sec.  228.43 by revising paragraph (b) to read as follows:


Sec.  228.43  Policy governing disposal.

* * * * *
    (b) Price. Mineral materials may not be sold for less than the 
appraised value. The authorized officer shall assess a fee to cover 
costs of issuing and administering a contract or permit in accordance 
with the cost recovery requirements of Sec.  228 Subpart F.
* * * * *
0
6. Amend Sec.  228.51 by:
0
a. Revising the section heading; and
0
b. Redesignating paragraphs (a) and (b) as paragraphs (b) and (c) and 
adding a new paragraph (a).
    The revision and addition read as follows:


Sec.  228.51  Fees and Bonding.

    (a) Processing fees. Applications for a permit or contract for 
mineral materials shall be subject to the cost recovery requirements of 
Sec.  228 Subpart F modified by the provisions of this Subpart. 
Applicants will be charged a processing fee and, as applicable, a 
monitoring fee determined by the authorized officer.
* * * * *
0
7. Amend Sec.  228.58 by:
0
a. Redesignating paragraphs (b), (c), and (d) as paragraphs (c), (d), 
and (e) and adding new paragraph (b); and
0
b. Revising newly designated paragraphs (c)(2) and (e)(4).
    The addition and revisions read as follows:


Sec.  228.58  Competitive sales.

* * * * *
    (b) Fee requirements for competitive sales. For competitive sales, 
the applicant requesting a mineral material sale must pay the total 
processing fee up to 30 days before the sale. The cost recovery process 
for a competitive mineral material sale follows:
    (1) The applicant requesting the sale must pay the cost recovery 
fee amount before the authorized officer will publish the invitation 
for bid required in Sec.  228.58.
    (2) Before the contract is issued:
    (i) The successful bidder, if someone other than the applicant, 
must pay to the Forest Service the cost recovery amount specified in 
the invitation to bid; and
    (ii) The successful bidder must pay all processing and monitoring 
fees the Forest Service incurs after the date of the invitation to bid.
    (3) If the successful bidder is someone other than the applicant, 
the Forest Service will refund to the applicant the amount paid under 
paragraph (a)(1) of this section.
    (c) * * *
    (2) Content of advertising. The advertisement of sale must specify 
the location by legal description of the tract or tracts or by any 
other means identify the location of the mineral material deposit being 
offered, the kind of material, estimated quantities, the unit of 
measurement, appraised price (which sets the minimum acceptable bid), 
applicable processing and monitoring fees, time and place for receiving 
and opening of bids, minimum deposit required, major special 
constraints due to environmental considerations, available access, 
maintenance required over haul routes, traffic controls, required use 
permits, required qualifications of bidders, the method of bidding, 
bonding requirement, notice of the right to reject any or all bids, the 
office where a copy of the contract and additional information may be 
obtained, and additional information the authorized officer deems 
necessary.
    (e) * * *
    (4) Within 30 days after receipt of the contract, the successful 
bidder must sign and return the contract, pay the processing and 
monitoring fees specified in the sale advertisement, and provide any 
required bond, unless the authorized officer has granted an extension 
for an additional 30 days. The bidder must apply for the extension in 
writing within the first 30-day period. If the successful bidder fails 
to return the contract within the first 30-day period or within an 
approved extension, the bid deposit, less the costs of re-advertising 
and damages, may be returned without prejudice to any other rights or 
remedies of the United States.
* * * * *
0
8. In Sec.  228.63 revise the introductory paragraph to read as 
follows:


Sec.  228.63  Removal under terms of a timber sale or other Forest 
Service contract.

    In carrying out programs such as timber sales that involve 
construction

[[Page 38427]]

and maintenance of various physical improvements, the Forest Service 
may specify that mineral materials be mined, manufactured, and/or 
processed for incorporation into the improvement. Where the mineral 
material is located on National Forest lands and is designated in the 
contract calling for its use, no permit is required as long as an 
operating plan as described in Sec.  228.56 is required by the contract 
provisions. The authorized officer shall charge a fee to process the 
operating plan and monitor activity under the approved operating plan 
in accordance with the cost recovery requirements of Sec.  228 Subpart 
F.
* * * * *
0
9. Amend Sec.  228.106 by revising paragraph (a) to read as follows:


Sec.  228.106  Operator's submission of surface use plan of operations.

    (a) General. No permit to drill on a Federal oil and gas lease for 
National Forest System lands may be granted without the analysis and 
approval of a surface use plan of operations covering proposed surface 
disturbing activities. An operator must obtain an approved surface use 
plan of operations before conducting operations that will cause surface 
disturbance. The operator shall submit a proposed surface use plan of 
operations as part of an Application for a Permit to Drill to the 
appropriate Bureau of Land Management office for forwarding to the 
Forest Service, unless otherwise directed by the Onshore Oil and Gas 
Order in effect when the proposed plan of operations is submitted. The 
authorized Forest officer shall charge the operator a processing fee 
and, as appropriate, a monitoring fee, for each surface use plan of 
operations in accordance with the cost recovery requirements of Sec.  
228 Subpart F.
* * * * *
0
10. Amend Sec.  228.107 by revising paragraphs (d) and (e) to read as 
follows:


Sec.  228.107  Review of surface use plan of operations.

* * * * *
    (d) Transmittal of decision. The authorized Forest officer shall 
immediately forward a decision on a surface use plan of operations to 
the appropriate Bureau of Land Management office and the operator. If 
the decision is to approve the plan, this transmittal shall include:
    (1) The monitoring fee that would be required of the operator if 
the Bureau of Land Management approves the application for permit to 
drill; and
    (2) The estimated cost of reclamation and restoration (Sec.  
228.109(a)) if the authorized forest officer believes that additional 
bonding is required.
* * * * *
    (e) Supplemental plans. A supplemental surface use plan of 
operations (Sec.  228.106(d)) shall be subject to cost recovery and 
reviewed in the same manner as an initial surface use plan of 
operations.
* * * * *
0
11. Add new Subpart F--General Cost Recovery Requirements for Minerals 
to read as follows:
0
Subpart F--General Cost Recovery Requirements for Minerals


Sec.  228.200  Authority.

    Authority to charge processing costs is provided by the Independent 
Offices Appropriation Act of 1952, 31 U.S.C. 9701.


Sec.  228.201  Definitions.

    Authorization--an approval, permit, contract, or sale issued by the 
Forest Service per regulations at 36 CFR part 228.
    Holder--an individual or entity that holds a valid authorization 
issued by the Forest Service to conduct activity under the regulations 
of this Part.
    Monitoring--Actions needed to ensure compliance with the terms and 
conditions of an authorization issued by the Forest Service under 
regulations at 36 CFR part 228.
    Operating plan--A plan of operations as provided for in 36 CFR 228, 
subparts A and D, and 36 CFR 292, subparts C and G; a supplemental plan 
of operations as provided for in 36 CFR part 228, subpart A, and 36 CFR 
part 292, subpart G; an operating plan as provided for in 36 CFR part 
228, subpart C, and 36 CFR 292, subpart G; an amended operating plan 
and a reclamation plan as provided for in 36 CFR part 292, subpart G, a 
surface use plan of operations as provided for in 36 CFR part 228, 
subpart E; a supplemental surface use plan of operations as provided 
for in 36 CFR part 228, subpart E; an operating plan and a letter of 
authorization as provided for in 36 CFR part 292, subpart D; a Notice 
of Intent to Conduct Geothermal Resource Exploration Operations, a 
geothermal drilling permit, a utilization plan, a site license as 
provided for in 43 CFR 3273; or a commercial use permit as provided for 
in 43 CFR part 3200; an exploration plan or a resource recovery and 
protection plan as provided for in 43 CFR, part 3400; an exploration 
plan or operating plan as provided for in 43 CFR, part 3500.
    Proponent--an individual or entity proposing an action associated 
with mineral resources on National Forest System lands governed by the 
regulations of 36 CFR part 228, 43 CFR 43 CFR part 3000, or 30 CFR 
Chapter VII.
    Proposal--An application, plan, or request to acquire, modify, 
renew, or readjust the right to conduct activity to prospect, explore, 
develop, produce, or remove mineral resources from National Forest 
System lands.


Sec.  228.202  Cost recovery.

    (a) Assessment of fees to recover agency processing and monitoring 
costs. The Forest Service shall assess fees to recover the agency's 
costs for processing proposals and monitoring authorizations pursuant 
to the regulations of Part 228. Fees may be either a fixed fee or 
determined from a fee category. Proponents shall submit sufficient 
information for the authorized officer to estimate the number of hours 
required to process their proposals or monitor their authorizations. 
Cost recovery fees payable to the Forest Service under this subpart are 
separate from fees that may be charged by other government entities for 
mineral activity conducted on National Forest System lands such as, but 
not limited to, fees collected by the Bureau of Land Management for oil 
and gas Applications for Permits to Drill (APDs). The cost recovery 
provisions of this section shall not apply to or supersede written 
agreements providing for recovery of processing costs executed by the 
agency and proponents prior to (the effective date of the rule).
    (b) Proposals subject to cost recovery requirements. Cost recovery 
requirements of this Part apply to:
    (1) Processing of proposals received on or after (the effective 
date of the rule); and
    (2) Monitoring of authorizations issued or amended under this Part 
on or after (effective date of the rule).
    (c) Processing fee requirements. A processing fee is required for 
each proposal as identified in paragraph (b)(1) of this section. 
Processing fees do not include costs incurred by the proponent in 
providing information, data, and documentation necessary for the 
authorized officer to take action on a proposal.
    (1) Basis for processing fees.
    (i) Fixed fee proposals: A fixed fee is based on a projected cost 
the Forest Service incurs to process proposals identified as being 
subject to a fixed fee.
    (ii) Processing category proposals: Processing category proposals 
have fees based on an estimate of the total time for all involved 
Forest Service personnel to process a proposal. The time bands for 
processing categories 1 through 6 set out

[[Page 38428]]

in paragraph (c)(3)(i) of this section are based upon the costs 
incurred by the Forest Service to meet with the proponent, review the 
proposal, prepare or cooperate in preparing environmental analyses of 
the effects of the proposal, review any applicant-generated 
environmental documents and studies, conduct site visits, coordinate 
with other government entities, make a determination, recommendation, 
or decision on the proposal, and prepare documentation of analyses, 
decisions, and authorizations. The processing fee for a proposal shall 
be based only on costs necessary for processing that proposal. 
``Necessary for'' means that, but for the proposal, the costs would not 
have been incurred and that the costs cover only those activities 
without which the proposal cannot be processed. The processing fee 
shall not include costs for studies for programmatic planning or 
analysis or other agency management objectives, unless they are 
necessary for the proposal being processed. Proportional costs for 
analyses that are necessary for the proposal, such as one analysis 
prepared for proposals from multiple proponents, may be included in the 
processing fee. The costs incurred for processing a proposal and thus 
the processing fee, depend on the complexity of the proposal; the 
amount of information that is necessary for the authorized officer's 
decision or response to the proposal; and the degree to which the 
proponent can provide this information to the agency. Processing work 
conducted by the proponent, or a third party contracted by the 
proponent, minimizes the costs the Forest Service will incur to process 
the proposal, and thus reduces the processing fee.
    (2) Processing fee determinations. The applicable fee for 
processing a proposal with a fixed fee or in categories 1 through 4 
shall be assessed from a schedule published in the Forest Service 
Handbook at 2809.15 (https://www.fs.usda.gov/im/directives/). The 
processing fee for proposals in category 5 shall be established in the 
master agreement (paragraph (c)(3)(ii) of this section). For category 5 
and category 6 proposals, the authorized officer shall estimate the 
agency's full actual processing costs on a case-by-case basis. The 
estimated processing costs for category 5 and category 6 proposals 
shall be reconciled as provided in paragraphs (c)(6)(ii) and (iii) and 
(c)(7)(ii) and (iii) of this section.
    (3) Processing fee categories for proposals not subject to a fixed 
fee.
    (i) Proposals are assigned to one of the fee categories 1 through 6 
as follows:

                     Table 3--Processing Categories
------------------------------------------------------------------------
        Processing category              Federal work hours involved
------------------------------------------------------------------------
1.................................  Estimated Federal work hours are
                                     <=8.
2.................................  Estimated Federal work hours are >8
                                     and <=24.
3.................................  Estimated Federal work hours are >24
                                     and <=40.
4.................................  Estimated Federal work hours are >40
                                     and <=64.
5 (Master agreements).............  Varies.
6.................................  Estimated Federal work hours are
                                     >64.
------------------------------------------------------------------------

    (ii) Category 5: Master agreements. The Forest Service and the 
proponent may enter into master agreements for the agency to recover 
processing costs associated with a particular proposal, a group of 
proposals, or similar proposals for a specified geographic area. A 
master agreement shall at a minimum include:
    (A) The fee category or estimated processing costs;
    (B) A description of the method for periodic billing, payment, and 
auditing;
    (C) A description of the geographic area covered by the agreement;
    (D) A work plan and provisions for updating the work plan;
    (E) Provisions for reconciling differences between estimated and 
final processing costs; and
    (F) Provisions for terminating the agreement.
    (iii) Category 6: More than 64 hours. Processing fees for category 
6 proposals are determined on a case-by-case basis. The authorized 
officer shall determine the issues to be addressed and shall develop 
preliminary work and financial plans for estimating recoverable costs.
    (4) Multiple proposals other than those covered by master 
agreements (category 5). Where processing costs benefit multiple 
proposals (for example, the cost of conducting an environmental 
analysis or printing an Environmental Impact Statement that relates to 
multiple proposals), the costs must be paid in equal shares or on a 
prorated basis by each proponent involved, as deemed appropriate by the 
authorized officer.
    (5) Billing and revision of processing fees.
    (i) Billing. For proposals assigned to a processing category, the 
authorized officer will issue a bill to the proponent for the 
processing fee that is due. The authorized officer shall not bill the 
proponent a processing fee until the agency is prepared to process the 
proposal.
    (ii) Revision of processing fees. Processing fees shall not be 
reclassified into a higher category once the processing fee category 
has been determined. However, if the authorized officer discovers 
previously undisclosed information that necessitates changing to a 
higher category processing fee, the authorized officer shall notify the 
proponent of the conditions prompting a change in the processing fee 
category in writing before continuing with processing the proposal. The 
proponent may accept the revised processing fee category and pay the 
difference between the previous and revised processing categories; 
withdraw the proposal; revise the project to lower the processing 
costs; or request a review of the disputed fee as provided in 
paragraphs (e)(1) through (4) of this section.
    (6) Payment of processing fees. (i) Payment of the processing fee 
for a fixed fee proposal is due when the proposal is filed with the 
Forest Service. For all other proposals, payment of a processing fee 
shall be due within 30 days of issuance of a bill for the fee, pursuant 
to paragraph (c)(5) of this section. The processing fee must be paid 
before the Forest Service can initiate or, in the case of a revised 
fee, continue with processing a proposal. Payment of the processing fee 
by the proponent does not obligate the Forest Service to authorize, 
approve, or consent to, or otherwise make determinations in favor of 
the proponent's activity as proposed.
    (ii) For category 5 cases, when the estimated processing costs are 
lower than the final processing costs for proposals covered by a master 
agreement, the proponent shall pay the difference between the estimated 
and final processing costs.
    (iii) For category 6 cases, when the estimated processing fee is 
lower than the full actual costs of processing a proposal, the 
proponent shall pay the difference between the estimated and full 
actual processing costs.
    (7) Refunds of processing fees. (i) Processing fees for fixed fee 
proposals or for proposals designated in categories 1 through 4 are 
nonrefundable and shall not be reconciled.
    (ii) For category 5 cases, if payment of the processing fee exceeds 
the agency's final processing costs for the proposals covered by a 
master agreement, the authorized officer either shall refund the excess 
payment to the proponent or, at the proponent's request, shall credit 
it towards monitoring fees due.
    (iii) For category 6 cases, if payment of the processing fee 
exceeds the full actual costs of processing a proposal, the authorized 
officer either shall refund the excess payment to the proponent or,

[[Page 38429]]

at the proponent's request, shall credit it towards monitoring fees 
due.
    (iv) For category 5 and category 6 proposals, a proponent whose 
request is denied or withdrawn in writing is responsible for costs 
incurred by the Forest Service in processing the proposal up to and 
including the date the agency denies the proposal, or receives written 
notice of the proponent's withdrawal. When a proponent withdraws a 
category 5 or category 6 proposal, the proponent also is responsible 
for any costs subsequently incurred by the Forest Service in 
terminating consideration of the proposal.
    (d) Monitoring fee requirements. A monitoring fee will not be 
charged for proposals subject to a fixed fee. For all other proposals 
that are authorized by the Forest Service under this part, the 
monitoring fee for an authorization shall be assessed independently of 
any fee charged for processing the proposal pursuant to paragraph (c) 
of this section. Payment of the monitoring fee is due upon issuance of 
the authorization or per the terms of a master agreement.
    (1) Basis for monitoring fees. For monitoring fees in categories 1 
through 4, holders of authorizations are assessed fees based upon the 
estimated time needed for Forest Service monitoring to ensure 
compliance with surface use requirements during the construction or 
reconstruction phase of the authorization and rehabilitation of the 
construction or reconstruction site. Category 5 and category 6 
monitoring fees shall be based upon the agency's estimated costs to 
ensure compliance with the surface use terms and conditions during all 
phases of the authorized activity, including but not limited to 
monitoring to ensure compliance with surface use requirements during 
the construction or reconstruction phase of the authorization and 
rehabilitation of the construction or reconstruction site. Monitoring 
for all categories does not include billings, maintenance of case 
files, or scheduled inspections to determine compliance generally with 
the terms and conditions of an authorization.
    (2) Monitoring fee determinations. The applicable fee for 
monitoring compliance with authorizations in categories 1 through 4 
(paragraphs (d)(3)(i) of this section) shall be assessed from a 
schedule published in the Forest Service Handbook at 2809.15. The 
monitoring fee for authorizations in category 5 shall be established in 
the master agreement (paragraph (d)(3)(ii) of this section). For 
category 5 and category 6 (paragraph (d)(3)(iii) of this section) 
cases, the authorized officer shall estimate the agency's monitoring 
costs on a case-by-case basis. The estimated monitoring costs for 
category 5 and category 6 cases shall be reconciled as provided in 
paragraphs (d)(4)(ii) and (iii) and (d)(5)(ii) and (iii) of this 
section.
    (3) Monitoring fee categories. (i) Authorizations are assigned to a 
fee category as follows:

                     Table 4--Monitoring Categories
------------------------------------------------------------------------
          Monitoring category              Federal work hours involved
------------------------------------------------------------------------
1......................................  Estimated Federal work hours
                                          are <=8.
2......................................  Estimated Federal work hours
                                          are >8 and <=24.
3......................................  Estimated Federal work hours
                                          are >24 and <=40.
4......................................  Estimated Federal work hours
                                          are >40 and <=64.
5 (Master agreements)..................  Varies.
6......................................  Estimated Federal work hours
                                          are >64.
------------------------------------------------------------------------

    (ii) Category 5: Master agreements. The Forest Service and the 
holder of an authorization may enter into a master agreement for the 
agency to recover monitoring costs associated with a particular 
authorization or by a group of authorizations for a specified 
geographic area. A master agreement shall at a minimum include:
    (A) The fee category or estimated monitoring costs;
    (B) A description of the method for periodic billing, payment, and 
auditing of monitoring fees;
    (C) A description of the geographic area covered by the agreement;
    (D) A monitoring work plan and provisions for updating the work 
plan;
    (E) Provisions for reconciling differences between estimated and 
final monitoring costs; and
    (F) Provisions for terminating the agreement.
    (iii) Category 6: More than 64 hours. The Forest Service shall 
develop a preliminary work plan and financial plan on agency resources 
needed to monitor compliance with the terms and conditions of the 
authorization during all phases of its term, including any additional 
time for rehabilitation of the site. The Forest Service and the 
proponent must enter into a written agreement that describes the Forest 
Service monitoring activity for the authorization. The final agreement 
will consist of a work plan and a financial plan.
    (4) Billing and payment of monitoring fees.
    (i) The authorized officer shall estimate the monitoring costs and 
shall notify the holder of the required fee. Monitoring fees in 
categories 1 through 4 must be paid in full before or at the same time 
the authorization is issued. For authorizations in category 5 and 
category 6, the estimated monitoring fees must be paid in full before 
or at the same time the authorization is issued, unless the authorized 
officer and the applicant or holder agree in writing to a payment 
schedule.
    (ii) For category 5 cases, when the estimated monitoring costs are 
lower than the final monitoring costs for proposals covered by a master 
agreement, the holder shall pay the difference between the estimated 
and final monitoring costs.
    (iii) For category 6 cases, when the estimated monitoring fee is 
lower than the full actual costs of monitoring an authorization, the 
proponent shall pay the difference in the next scheduled payment, or 
the authorized officer shall bill the holder for the difference between 
the estimated and full actual monitoring costs. Payment shall be due 
within 30 days of receipt of the bill.
    (5) Refunds of monitoring fees.
    (i) Monitoring fees for categories 1 through 4 are nonrefundable 
and shall not be reconciled.
    (ii) For category 5 cases, if payment of the monitoring fee exceeds 
the agency's final monitoring costs for the activities covered by a 
master agreement, the authorized officer shall either adjust the next 
scheduled payment to reflect the overpayment or refund the excess 
payment to the holder.
    (iii) For category 6 cases, if payment of the monitoring fee 
exceeds the full actual costs of monitoring an authorization, the 
authorized officer shall either adjust the next scheduled payment to 
reflect the overpayment or refund the excess payment to the holder.
    (e) Proponent or holder disputes concerning processing or 
monitoring fee assessments; requests for changes in fee categories or 
estimated costs.
    (1) The amount of a fixed fee assessment is not subject to review 
under this section.
    (2) If a proponent or holder disagrees with the processing or 
monitoring fee category assigned by the authorized officer for 
categories 1 through 4 or, in the case of processing or monitoring for 
categories 5 and 6, with the estimated dollar amount of the processing 
or monitoring costs, the proponent or holder may submit a written 
request before the disputed fee is due for

[[Page 38430]]

substitution of an alternative fee category or alternative estimated 
costs. The written request must be submitted to the immediate 
supervisor of the authorized officer who determined the fee category or 
estimated costs. The proponent or holder must provide documentation 
that supports the alternative fee category or estimated costs.
    (3) In the case of a disputed processing fee:
    (i) If the proponent pays the full disputed processing fee, the 
authorized officer shall continue to process the proposal during the 
authorized officer's immediate supervisor's review of the disputed fee, 
unless the proponent requests that the processing cease.
    (ii) If the proponent fails to pay the full disputed processing 
fee, the authorized officer shall suspend further processing of the 
proposal pending the authorized officer's immediate supervisor's 
determination of an appropriate processing fee and the proponent's 
payment of that fee.
    (4) In the case of a disputed monitoring fee:
    (i) If the proponent or holder pays the full disputed monitoring 
fee, the authorized officer shall issue the authorization or allow the 
use and occupancy to continue during the supervisory officer's review 
of the disputed fee, unless the proponent or holder elects not to 
exercise the authorized use and occupancy of National Forest System 
lands during the review period.
    (ii) If the proponent or holder fails to pay the full disputed 
monitoring fee, the authorized officer shall not issue a new 
authorization or shall suspend the activity in whole or in part pending 
the supervisory officer's determination of an appropriate monitoring 
fee and the proponent's or holder's payment of that fee.
    (5) The authorized officer's immediate supervisor shall render a 
decision on a disputed processing or monitoring fee within 30 calendar 
days of receipt of the written request from the proponent or holder. 
The supervisory officer's decision is the final level of administrative 
review. The dispute shall be decided in favor of the proponent if the 
supervisory officer does not respond to the written request within 30 
days of receipt.
    (f) Waivers of processing and monitoring fees. (1) All or part of a 
processing or monitoring fee may be waived, at the sole discretion of 
the authorized officer, when one or more of the following criteria are 
met:
    (i) The proponent is a local, State, Federal, or tribal 
governmental entity that does not charge processing or monitoring fees 
for comparable services the proponent provides to the Forest Service;
    (ii) A major portion of the processing costs results from issues 
not related to the project being proposed;
    (iii) The proposal is for a project intended to prevent or mitigate 
damage to real property, or to mitigate hazards or dangers to public 
health and safety resulting from an act of nature, an act of war, or 
negligence of the United States;
    (iv) The proposal is for a new authorization to relocate facilities 
or activities to comply with public health and safety or environmental 
laws and regulations that were not in effect at the time the 
authorization was issued;
    (v) The proposal is for a new authorization to relocate facilities 
or activities because the land is needed by a Federal agency or for a 
Federally funded project for an alternative public purpose; or
    (vi) The proposed facility, project, or use will provide, without 
user or customer charges, a valuable benefit to the general public or 
to the programs of the Secretary of Agriculture.
    (2) A proponent's or a holder's request for a full or partial 
waiver of a processing or monitoring fee must be in writing and must 
include an analysis that demonstrates how one or more of the criteria 
in paragraphs (f)(1)(i) through (vi) of this section apply.
    (g) Appeal of decisions. (1) A decision by the authorized officer 
to assess a processing or monitoring fee or to determine the fee 
category or estimated costs is not subject to administrative appeal.
    (2) A decision by an authorized officer's immediate supervisor in 
response to a request for substitution of an alternative fee category 
or alternative estimated costs likewise is not subject to 
administrative appeal.
    (h) Processing and monitoring fee schedules. The Forest Service 
shall maintain schedules for processing and monitoring fees in its 
directive system at Forest Service Handbook 2809.15 (https://www.fs.usda.gov/im/directives/dughtml/fsh.html). The rates in the 
schedules shall be updated annually by using the annual rate of change, 
second quarter to second quarter, in the Implicit Price Deflator-Gross 
Domestic Product (IPD-GDP) index. The Forest Service shall round the 
changes in the rates either up or down to the nearest dollar. In the 
event the schedules are not updated in a particular year, the fee 
schedules published in the directives will remain in effect until the 
updates are published in the agency directives.


Sec.  228.203  Information collection requirements.

    The rules of this subpart specify information that proponents or 
applicants for mineral authorizations or holders of existing 
authorizations must provide to allow an authorized officer to recover 
costs to process a request or to monitor an authorization. The 
information collected under this subpart is already required by law or 
approved for use through the information collection requirements under 
Subparts A through E of this part. Therefore, these rules contain 
information collection requirements as defined in 5 CFR part 1320. 
Forest Service information collection requirements for its minerals 
regulations have been assigned Office of Management and Budget (OMB) 
Control Numbers 0596-0022, 0596-0081, and 0596-0101.

    Dated: May 25, 2023
Andrea Delgado,
Chief of Staff, Natural Resources and Environment.
[FR Doc. 2023-11622 Filed 6-12-23; 8:45 am]
BILLING CODE 3411-15-P