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Consistent with the federal cost recovery statutes, the Forest Service plans to amend 36 CFR 228, subpart F, to charge processing and monitoring fees for certain mineral activities on National Forest Lands. The final rule would meet the Administration's priority to improve service delivery, customer experience, and reduce administrative burdens for those accessing public benefits and services.

Statement of Need:

The Independent Offices Appropriations Act (IOAA) provides statutory authority for federal agencies to recover the costs they incur in providing specific benefits and services to an identifiable recipient beyond those provided to the general public.  The IOAA directs cost recovery authority be instituted through the promulgation of regulations and that an agency must deposit any funds collected into the US Treasury's general fund.  Additionally, a GAO report  BLM and Forest Service Have Taken Some Actions to Expedite the Mine Plan Review Process but Could Do More  (GAO-16-165: Published: Jan 21, 2016. Publicly Released: Feb 22, 2016), recommends that to ensure effective oversight, strengthen internal controls, and address challenges associated with the hardrock mine plan review process, the Secretary of Agriculture should direct the Chief of the Forest Service to issue a rule that establishes a fee structure for hardrock mine plan processing activities and request the authority from the Congress to retain any fees it collects. 

The Forest Service mineral programs contribute significantly to the national economy, often specifically to the social and economic foundation of rural communities and towns. Additionally, reliable, secure, and resilient supplies of critical materials are essential to the U.S. economy and national defense. Critical minerals are found in nearly every electronic device, support high value-added manufacturing and high-wage jobs, and are key to transitioning to a green energy economy. Many critical minerals are only economic to recover when combined with the recovery of a host mineral. There are over 2.3 million acres of active mining claims on National Forests in western states and significant areas of hardrock mineral potential in eastern Forests, making National Forest System (NFS) lands a significant land base to explore for and potentially develop critical minerals. Current active mining operations on National Forests are significant contributors to the national production of several important minerals, including copper, lead, zinc, silver, gold, platinum and palladium (both critical minerals). The Gallatin National Forest in Montana hosts use and occupancy of the Stillwater Mine which produces nearly all of the platinum and palladium currently mined in the United States.   

Ensuring that the Forest Service’s Minerals Program is delivered efficiently and effectively is critical to its ongoing success.  The Forest Service’s existing regulations do not provide authority to recover agency costs of processing authorizations.  The Forest Service proposes rulemaking to implement authority under the IOAA to charge cost recovery fees, providing a means to increase capacity and improve customer service.  The agency is finding it increasingly difficult to provide timely reviews and evaluations of minerals proposals, resulting in a growing backlog of proposals.  The agency is increasingly unable to respond in a manner that meets the needs and customer service expectations of proponents.Fees collected under this rule would support the Administration’s Mining Reform Principles by providing funding to build the agency’s capacity and expertise in mining to ensure resource assessments, environmental reviews, permitting, and consultations in an efficient and timely manner, as well as vigorously enforce the requirements of authorizations issued.   

The USDA Forest Service (FS) administers approximately 344 authorized mines, 500 mining proposals (including notices of intent and plans of operations), 2,275 mineral materials operations, and over 6,700 active mineral operations per year.  Minerals development/extraction activities on National Forest System (NFS) lands include, but are not limited to, processing of leasing requests, notices of intent, plans of operations, and surface use plans of operations.   

Each proposed plan of operations or other mineral applications must be reviewed for completeness prior to initiating analysis of the proposal.  Once the plan of operations has been acknowledged as complete, the agency initiates NEPA analyses of the proposals.  Depending on staffing and priority work, as well as the complexity of the plan of operations and the level of operations proposed, a NEPA analysis may take months for a simple categorical exclusion (CE) to years for an environmental assessment (EA) or an environmental impact statement (EIS).  Often, these lengthened timeframes are due to lack of resource specialist staffing to analyze the proposal, and a lack of minerals staffing to respond to the proposal and ensure the NEPA analysis occurs efficiently and timely.  Once a proposal is approved, the operations require continued administration in the form of monitoring and working with the operators and other federal and State partners to ensure compliance during implementation.

Rulemaking is required for the Forest Service to collect fees for the administration of its mineral programs. In addition, the Forest Service currently lacks statutory authority to retain and spend any fees that it would collect for processing applications and administering authorizations for mineral activities. Legislation is needed to provide such authority, so the agency may derive a direct benefit if it were to implement cost recovery rulemaking for minerals. 

Summary of the Legal Basis:

The statutory authority for cost recovery of fees is permitted under the Independent Offices Appropriations Act, Pub .L. 92-49, title IV at 31 U.S. Code ---9701.

Alternatives:

Consistent with the federal cost recovery statutes, the Forest Service proposes to initiate rulemaking to charge processing and monitoring fees for certain mineral activities. The Forest Service will also support new legislation to allow the agency to retain the fees it collects and use those funds to offset costs for processing and monitoring compliance for mineral activities.

The proposed rule would directly support the USDA’s strategic goals for fiscal years 2018-2022 by improving customer service and facilitating rural prosperity and economic development.

 The proposed regulation would:

          Establish regulations at 36 CFR 228 to provide for charging applicants processing and monitoring fees to recover agency costs associated for certain mineral operations. 

•  This rule would establish a fee structure applicable to a variety of mineral activities and accommodates the time variability associated with NEPA compliance. 

•  The proposed rule would not include provisions for waiver or reduction of fees because such provisions are neither appropriate nor necessary for a rule that would impose fees only on for-profit commercial enterprises. 

•  Recovery of application fees for mineral extraction would enhance public equity by having the direct beneficiary pay appropriate fees as opposed to the American taxpayer funding all associated costs.

 No other alternatives were considered. 

Anticipated Costs and Benefits:

Proponents and applicants for mineral operations would be subject to increased fees for mineral activity on NFS lands. The agency expects a positive and negative impact from the promulgation of proposed rule. The positive impacts will be the longer-term benefits of operations receiving higher quality and quantity of attention as the agency.

Risks:

None.