[Federal Register Volume 71, Number 63 (Monday, April 3, 2006)]
[Rules and Regulations]
[Pages 16614-16622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2888]
[[Page 16613]]
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Part II
Department of Agriculture
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Forest Service
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36 CFR Part 251
Special Uses: Managing Recreation Residences and Assessing Fees Under
the Cabin User Fee Fairness Act; Procedures for Appraising Recreation
Residence Lots and for Managing Recreation Residence Uses Pursuant to
the Cabin User Fee Fairness Act; Final Rules
Federal Register / Vol. 71, No. 63 / Monday, April 3, 2006 / Rules
and Regulations
[[Page 16614]]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 251
RIN 0596-AB83
Special Uses; Managing Recreation Residences and Assessing Fees
Under the Cabin User Fee Fairness Act
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: The Cabin User Fee Fairness Act of 2000 directs the Forest
Service to promulgate regulations and adopt policies for carrying out
provisions of the act. Accordingly, the Department is adopting this
final rule that revises special uses regulations and related agency
directives, published elsewhere in this part of today's Federal
Register. The final rule and agency directives set out requirements and
provide direction to agency personnel for managing recreation residence
uses and assessing fees for those uses of National Forest System lands
pursuant to the act.
DATES: Effective Date: This rule is effective May 3, 2006.
ADDRESSES: The documents used in developing this final rule are
available for inspection and copying at the office of the Director,
Lands Staff, Forest Service, USDA, 4th Floor South, Sidney R. Yates
Federal Building, 1400 Independence Ave., SW., Washington, DC, during
regular business hours (8:30 a.m. to 4 p.m.), Monday through Friday,
except holidays. Those wishing to inspect these documents are
encouraged to call ahead (202) 205-1248 to facilitate access to the
building.
Other documents not in the rulemaking record that were requested in
the comments on the proposed rule are beyond the scope of this
rulemaking conducted pursuant to 5 U.S.C. 553(c). Those interested in
obtaining these documents may request them under the Freedom of
Information Act by writing to the USDA Forest Service, Freedom of
Information Act/Privacy Act Branch, Office of Regulatory and Management
Services, 1400 Independence Ave., SW., Mail Stop 1143, Washington, DC
20250-1143.
FOR FURTHER INFORMATION CONTACT: Julett Denton, Lands Staff, (202) 205-
1256.
SUPPLEMENTARY INFORMATION:
Table of Contents
1. Background
Recreation Residence Special Uses Program
Need for Amending the Existing Rule
2. Purely Technical, Nonsubstantive Revisions
3. Public Comments on Proposed Rule
Overview
Response to Comments
Response to General Comments on Proposed Rule
Response to Comments in Preamble of Proposed Rule
Response to Major Provisions of the Cabin User Fee
Fairness Act of 2000 (CUFFA)
Response to Specific Sections of Proposed Rule
4. Regulatory Certifications
Environmental Impact
Regulatory Impact
No Takings Implications
Civil Justice Reform
Federalism and Consultation and Coordination with Indian Tribal
Governments
Energy Effects
Unfunded Mandates
Controlling Paperwork Burdens on the Public
5. Text of the Final Rule
1. Background
Recreation Residence Special Uses Program
Forest Service regulations at 36 CFR part 251, subpart B, govern
authorizations for occupancy and use of National Forest System lands.
Section 251.50 characterizes special uses as ``all uses of National
Forest System lands, improvements, and resources, except those
authorized by the regulations governing the disposal of timber (part
223), disposal of minerals (part 228), and the grazing of livestock
(part 222).'' The regulation requires an authorization for all special
uses, with certain exceptions.
Approximately 74,000 special use authorizations are in effect on
National Forest System (NFS) lands. These uses cover a variety of
activities, ranging from individual private uses to large-scale
commercial facilities and public services. Examples of authorized land
uses include road rights-of-way accessing private residences and non-
Federal lands, domestic water supplies and water conveyance systems,
utility rights-of-way, communications uses, ski areas, resorts,
marinas, outfitting and guiding services, and public parks and
campgrounds. Approximately 15,000 of the 72,000 special use
authorizations on NFS lands are term special use permits for recreation
residence uses, which authorize the holder to construct, operate, and
maintain a recreation residence and related improvements on NFS lands.
On August 16, 1988, in a notice published in the Federal Register
(53 FR 30924), the Forest Service adopted a policy that set forth
procedures for administering term special use permits that authorize
privately owned recreation residences on National Forest System (NFS)
lands. The 1988 policy included direction concerning the tenure and
renewal of recreation residence term special use permits, and described
procedures to be followed when a recreation residence site was needed
for a higher public purpose. The 1988 policy also established a new
procedure for assessing fair market value fees for this type of use and
occupancy. In the 1988 policy the Forest Service designated as ``base
fees'' those annual fees for recreation residence special uses permits
that were established during the years 1978 through 1982. Those base
fees were determined as a result of appraisals of the fee simple fair
market value of lots that were completed during that time period. The
time period from 1978 through 1982 served as ``year 1'' in a 20-year
appraisal cycle in the 1988 policy.
That policy was appealed to the Secretary of Agriculture on
September 15, 1988. In general, the appellants alleged that certain
aspects of the policy were flawed, in that they exceeded limitations in
the statute authorizing recreation residence uses of the National
Forests. In a decision dated February 15, 1989, the Assistant Secretary
of Agriculture for Natural Resources and Environment remanded the 1988
policy to the Forest Service for reconsideration, and stayed the
implementation of those specific provisions in the policy that were the
subject of the appeal. None of the appeal or remand issues involved
provisions in the 1988 policy concerning the appraisals of recreation
residence lots, nor the determination and assessment of land use fees
generally. Rather, the remand directed the agency to reconsider: (1)
Nonrenewal provisions in recreation residence special use permits that
would be applied when the agency determined a need to convert the use
of a recreation residence site to a higher, or alternative, public
purpose; (2) provisions requiring an automatic permit renewal 10 years
prior to expiration (unless procedures for nonrenewal had been
established); (3) provisions requiring the offering of an in-lieu lot
to those permit holders who received nonrenewal notices pursuant to the
agency's finding to convert the use of a recreation residence site to
some alternative public purpose; and (4) provisions weighted against
consideration of commercial uses for sites when nonrenewal of the
recreation residence use was contemplated.
A final revised policy for recreation residences was adopted and
published
[[Page 16615]]
in the Federal Register on June 2, 1994 (59 FR 28713). It revised the
1988 policy with new provisions identified in the appeal and remand
concerning tenure, and clarified policy for determining the annual fee
for recreation residences. However, those provisions that were revised
and clarified in 1994 pertained only to annual fees for those permits
affected by notices of nonrenewal for an alternative public purpose.
The 1988 policy established base fees for recreation residence lot
appraisals conducted during the years 1978 through 1982. Those base fee
amounts were then indexed annually, using the annualized change in the
economic indexing factor known as the Implicit Price Deflator-Gross
National Product (IPD-GNP), as provided in the 1988 policy. The 1988
policy also established a 20-year appraisal cycle for keeping
recreation residence fees current with changes in fair market value.
In accordance with the provisions of the 1988 and 1994 policies,
the Forest Service began to appraise recreation residence tracts in
1996, which was year 18 of the 20-year appraisal cycle for those lots
appraised in 1978. The appraisals that were completed in 1997 revealed
varying degrees of increases in the market value of recreation
residence lots since they were last appraised in the late 1970's and
early 1980's. In some locations and markets the increase in value was
dramatic. Because annual land use fees are calculated on the basis of 5
percent of the fee simple value of each lot, increases in the appraised
fee simple values of some lots exceeded the cumulative effect of 18 to
20 years of annual IPD-GNP indexing of fees, which resulted in
corresponding increases in land use fees. Some of the more dramatic fee
increases as a result of new appraisals were of significant concern to
recreation residence permit holders, and to State and national
associations that represent them. In response, recreation residence
permit holders and associations of holders began to contact their
Congressional representatives, requesting relief from the increased
fees.
Congress initially responded to these concerns on November 14,
1997, in the Department of the Interior and Related Agencies
Appropriations Act for Fiscal Year 1998, Public Law 105-83, Section 343
by providing for a 3-year phase-in of recreation residence fee
increases, when a new appraisal of a recreation residence lot resulted
in fees that exceeded 100 percent of the previous land use fees.
In fiscal year 1999, Congress directed the Forest Service not to
increase recreation residence fees for fiscal year 1999 on the Sawtooth
National Forest in Idaho by more than 25 percent of the fee paid during
the prior fiscal year.
In fiscal year 2000, Congress provided additional relief to
recreation residence permit holders in section 342 of Public Law 106-
113 (Consolidated Appropriations for Fiscal Year Ending September 30,
2000) which directed that recreation residence permit fees assessed
during fiscal year 2000 could not exceed the fiscal year 1999 fee
amount by more than $2000.
Congress further addressed concerns about fee assessments for
recreation residence uses with the October 11, 2000, passage of the
Cabin User Fee Fairness Act of 2000 (CUFFA). The primary purpose of
CUFFA is to establish a more consistent process for appraising the fee
simple value of recreation residence lots on NFS lands.
Need for Amending the Existing Rule
The Cabin User Fee Fairness Act of 2000 (CUFFA) directs the Forest
Service to promulgate regulations and adopt policies for carrying out
provisions of the act. The Forest Service published a proposed rule for
notice and comment on May 13, 2003 in the Federal Register (68 FR
25748) to revise current regulations at 36 CFR part 251, subpart B, and
proposed agency directives (68 FR 25751) to incorporate the provisions
of CUFFA into the Forest Service Directive System.
2. Purely Technical, Nonsubstantive Revisions
All references to enactment of CUFFA as having occurred on October
12, 2000 have been revised to reflect that CUFFA was actually enacted
on October 11, 2000. In addition, Forest Service Manual 2347.12,
governing caretaker cabin user fees, has been revised for clarity and
for purposes of using the terminology in the corresponding provisions
in CUFFA.
3. Public Comments on the Proposed Rule
Overview
The proposed rule (68 FR 25748) and proposed agency directive
notice (68 FR 25751), publised May 13, 2003, provided for a 90-day
comment period which ended August 11, 2003.
The proposed rule and agency directives were posted electronically
on the World Wide Web/Internet on the Federal Register site at http://www.gpoaccess.gov and on the FirstGov e-rulemaking site at http://www.regulations.gov. The agency also posted the proposed rule,
appraisal guidelines, and recreation residence directives on its World
Wide Web site for special uses at http://www.fs.fed.us/recreation/permits permits. The public was afforded the opportunity to respond either by
regular mail, fax, or electronic format. In addition, the Forest
Service individually notified each of its approximately 15,000 holders
of recreation residence term special use permits about the publication
and availability of these notices and how to obtain copies of them by
either electronic or in paper copy format. No formally organized,
agency-wide, public meetings or hearings were held. However, Forest
Service personnel at all levels of the organization used meetings with
individual permit holders and recreation residence tract associations
to inform interested parties of the opportunity to review and comment
on the proposed rule and agency directives.
The Forest Service received 950 responses. There were no requests
for an extension of time for comments. Each respondent was grouped by
the respondent's declaration of affiliation with one of the following
organizations, or within one of the following categories:
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Number of
Affiliation or category responses
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Term Special Use Permit Holder of a Recreation Residence.... 595
Representing Organizations that in Whole or in Part, 32
Represent the Interests of Recreation Residence Special Use
Permit Holders.............................................
Individuals (that didn't clearly identify themselves as 319
being a permit holder, nor affiliated with an organization.
Representatives of Appraisal Organizations.................. 3
Forest Service employees.................................... 1
-----------
Total................................................... 950
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The 950 respondents represented 37 States and the District of Columbia.
The majority of comments were from individuals who identified
themselves as recreation residence term special use permit holders or
organizations representing their interests. The second largest group of
respondents were from individuals who chose not to identify their
affiliation or status.
Approximately 162 (17%) of the responses received were submitted in
the form of a standardized letter. Another 392 responses (41%) of the
responses were submitted as a ``fill-in-the-blanks'' form letter.
Approximately 167 of those who completed such a form also elected to
supplement their response with individually written ``additional
comments'' on the document.
[[Page 16616]]
The public was encouraged to respond to specific sections of the
proposed rule and agency directives and most who responded did so.
However, some respondents offered only general comments either
supporting or not supporting the proposed rule and directives, or
offered specific comments about current regulations or existing Forest
Service policy that were beyond the scope of the proposed rule and
directives. Non-responsive comments also included those comments
expressing a dislike for the Forest Service's administration and
management of recreation residence special uses in general, comments
focused on permit-specific issues, concerns, or disputes (e.g., the
manner in which a respondent's lot or tract had previously been
appraised), or comments which were not received by the Forest Service
in a timely manner.
Response to Comments
This section contains the Department's response to comments
received on the proposed revisions to the rule at 36 CFR part 251,
subpart B, published in the Federal Register on May 13, 2003 (68 FR
25748). The response to comments received on the agency's proposed
appraisal guidelines and revisions to the agency's proposed directives,
and published in the Federal Register on May 13, 2003 (68 FR 25751),
are published elsewhere in this part of today's Federal Register.
Responses to General Comments on the Proposed Rule
Comment. A number of respondents commented about the manner in
which the Forest Service established an electronic comment database to
provide the public with the opportunity to submit responses and
comments electronically via the internet. Some respondents were
complimentary of the electronic format and database and commented about
the ease and convenience that it provided them in responding to the
proposed rulemaking. Others commented negatively, saying that they had
difficulty navigating within the Web site and that they, along with
many others, become so frustrated that they didn't provide comment at
all. Some respondents asserted that the electronic comment option
provided in the draft rulemaking notice was purposely designed by the
Forest Service to discourage interested parties from commenting.
Response. The Department realizes that for a large segment of the
public the option to provide comments electronically during a Federal
government rulemaking and policymaking procedure is a new experience.
Therefore, the range of positive and negative comments received about
the electronic/internet response option to this particular rulemaking
effort was not unexpected. The Department disagrees, however, with the
assertion that the electronic comment database was in any way designed
to frustrate those who used it, to discourage interested parties from
commenting, or to minimize responses to this proposed rulemaking and
policymaking effort. Instead, it was intended to provide another format
for interested members of the public to provide responses to the
proposed rule and policy revisions, using a technology which is fast
and inexpensive. Likewise, the Forest Service has no evidence to
support one commenter's assertion that due to user frustration with the
electronic database only a portion of those who wanted to respond
actually did so, or the assertion by a commenter that some people
became so frustrated with the electronic format, that they did not
respond at all using any one of the other available means such as
written responses using regular mail, express mail, or fax.
Comment. Many respondents expressed a general concern about some of
the language in the agency's proposed rulemaking and policymaking,
suggesting that any new or amended Departmental rules, agency policies,
or appraisal guidelines, should reflect, verbatim, the language in
CUFFA. This same general comment was often repeated and made a part of
other comments about more specific sections of the proposed rule,
appraisal guidelines, and policies.
Response. Most of the procedures prescribed in CUFFA are clear and
the Department agrees that such direction should simply be repeated
verbatim in regulation, appraisal guidelines, and agency directives.
However, some of the direction in CUFFA is unclear, ambiguous, or
subject to interpretation. In these instances, the Department disagrees
with the comment that the language in the rule, appraisal guidelines,
and agency policies should be nothing more than a reiteration of that
language. One of the primary purposes of promulgating these
regulations, agency directives, and appraisal guidelines is to provide
for clarity and consistency in the administration of recreation
residence special use permits, consistent with the intent and purpose
of CUFFA. Therefore, where language that appears in CUFFA is subject to
varying interpretations, the Department's rules and the agency's
directives and guidelines will further refine and define that language
as needed to assure a clear understanding to permit holders and
consistent administration by agency personnel in exercising CUFFA's
direction and authority.
Response to Comments in Preamble of Proposed Rule
Comment. Some respondents, including one national organization
representing a significant percentage of recreation residence special
use permit holders, commented that the background information included
in the May 13, 2003, Federal Register notice (68 FR 25748-25749) did
not accurately reflect the purposes for which the Congress passed
CUFFA. One commenter asserted that the proposed regulations, policies,
and appraisal guidelines were not a good faith attempt to implement the
provisions of CUFFA. One organization commented that the background
discussion should have documented (1) the Federal laws that the Forest
Service used, presumably prior to the passage of CUFFA, as the basis
for requiring special use fees based on the fair market value of the
use; and (2) disclosed that it was the intent of the Congress in its
passage of CUFFA to provide the Forest Service with specific direction
on how to conduct appraisals to estimate the fair market value of a lot
for use in establishing base cabin user fees.
Response. The Department disagrees with the comment that the agency
was not acting in good faith in publishing the proposed regulations,
policies, and appraisal guidelines. In drafting its proposed
regulations, policy revisions, and appraisal guidelines, the agency put
forth its best effort to reflect the clear and concise provisions of
CUFFA, and its interpretation of those provisions of CUFFA that appear
ambiguous or subject to multiple interpretations. The purpose of
publishing the regulations, appraisal guidelines, and policy revisions
in draft form, and soliciting public comment, was to provide a
transparent and good faith opportunity for interested members of the
public to review and express opinions about the agency's interpretation
and proposed implementation of CUFFA.
The Department has reviewed the background information in the
proposed rule and found that it provided a thorough chronology of
events beginning in the mid-1980's through the mid-1990's describing a
series of policymaking procedures that were conducted by the Forest
Service concerning the management of recreation residence special uses
on National Forest System (NFS) lands.
[[Page 16617]]
The background information described how, in 1988, the agency adopted a
policy describing how annual ``base fees'' for most recreation
residence special use permits would be established, based on the
appraised market value of lots as they were determined from appraisals
of lots conducted between 1978 and 1982. In 1988, the Forest Service
also revised its recreation residence policy to direct that appraisals
of recreation residence lots be conducted at least once every 20 years.
That represented a change from the agency's previous practice, dating
at least as far back as the early 1960's, that conducted appraisals of
recreation residence lots every 5 years.
The background information in the proposed rule also identified
how, as a product of appraisals of recreation residence lots that the
Forest Service started to conduct in 1996, some annual land use fees
for recreation residence special use permits were going to increase
dramatically. Included, was a chronology describing how Congress
reacted to the outcome of some of those Forest Service appraisals, by
limiting the agency's ability to increase recreation residence special
use permit fees with language in annual appropriations authorities for
Fiscal Years 1998 through 2000. The culmination of Congress's
involvement with recreational residence fees was the enactment of
CUFFA, as Title VI to the appropriations authority for the Department
of the Interior and Related Agencies for Fiscal Year 2001.
The Department agrees that the background information in the
proposed rule did not address the statutory authority under which the
Forest Service had, prior to passage of CUFFA, asserted the need to
assess and collect annual fees for recreation special use permits based
on the principle of fair market value. Nor did it address the specific
manner in which appraisals were being conducted prior to the passage of
CUFFA, or the purposes for which CUFFA was enacted.
In response to these comments, the Department notes that Title V of
the Independent Offices Appropriations Act of 1952 (IOAA) (31 U.S.C.
9701), provides the statutory authority that, prior to the passage of
CUFFA, served as the basis by which annual land use fees were assessed
and collected for recreation residence special uses. The IOAA is one of
several statutes authorizing the use and occupancy of NFS lands that
serve as the premise upon which Departmental regulations at 36 CFR
251.57 were promulgated and which direct the assessment of special use
permit fees based on the fair market value of the authorized use. In
1993, the Office of Management and Budget (OMB) issued OMB Circular A-
25 that provided specificity and consistency in the implementation of
Title V of the IOAA. OMB Circular A-25 directed all Executive agencies
and departments and establishments of the Federal Government to assess
and collect from identifiable recipients of a special benefit, a user
charge based on the market price of the benefit being provided. The
enactment of CUFFA now serves as the authority to determine, assess,
and collect a land use fee for recreation residence special uses.
Comment. Some respondents, including one national organization
whose membership includes a significant percentage of recreation
residence special use permit holders, commented that the background
information of the proposed rule should have informed readers that (1)
a percentage of the lot's appraised value determines the annual land
use fee that represents fair market value; (2) instructing appraisers
on the procedures to follow to achieve an accurate reflection of the
local market has proven difficult; and (3) it was the intent of
Congress in the passage of CUFFA to provide specific direction on how
to conduct appraisals of recreation residence lots.
Response. The Department agrees with these three comments. Congress
documented in section 602(2) of CUFFA ``that current appraisal
procedures have, in certain circumstances, been inconsistently applied
in determining fair market values for residential lots demonstrates
that problems exist in accurately reflecting market values.'' It is
clear that Congress wanted to create greater consistency in the manner
in which the appraisals for determining the market value of recreation
residence lots are conducted, and that it did so by establishing in
section 606(a) of CUFFA specific requirements for conducting appraisals
of recreation residence lots, and instructing the Secretary of
Agriculture to establish specific appraisal guidelines that include
specific provisions identified in section 606(b). Furthermore, section
607(a) of CUFFA established in Federal statute a long-standing Forest
Service policy dating back to the 1960's, that is, the annual land use
fee for a recreation residence special use permit shall be 5 percent of
the market value of the recreation residence lot.
Responses to Comments on the Major Provisions of the Cabin User Fee
Fairness Act of 2000 (CUFFA)
Comment. Many comments were received questioning the use of The
Appraisal Foundation (TAF), saying that TAF testified against the
provisions of CUFFA before Congress and that many members of TAF
believe that testifying before Congress and reviewing the proposed
appraisal guidelines exceeds the scope of TAF's charter. Comments also
suggested that TAF lacks the expertise to make legal judgments about
the appraisal guidelines.
Response. The Forest Service contracted with TAF to assist in the
development and review of the proposed appraisal guidelines and to
fulfill the statutory requirement of section 606(a)(3) of CUFFA
directing the Secretary to enter into a contract with an appropriate
professional appraisal organization to manage the development of
specific appraisal guidelines.
Only one sponsor organization member of TAF registered an objection
to the Forest Service's use of TAF as the appropriate professional
appraisal organization to assist the Forest Service in the development
of the appraisal guidelines. This objection was made outside of the
public comment process provided for in the proposed rule. The fact that
TAF was requested by Congress to provide testimony on CUFFA and
complied with that request does not diminish TAF's qualifications or
responsibilities as the single authority in the United States for
development and interpretation of appraisal standards. TAF was
requested by Congress to testify on a wide variety of issues affecting
the real estate appraisal industry. Its testimony does not disqualify
TAF as the authority for appraisal standards and appraiser
qualifications. No sponsor member organization of TAF has provided the
Forest Service any evidence that either testifying before Congress or
reviewing the proposed Forest Service appraisal guidelines exceeds the
scope of TAF's charter. TAF did not offer a legal judgment about the
draft Forest Service appraisal guidelines. TAF was requested and
provided its professional opinion as the single authority for
development and interpretation of appraisal standards.
Response to Specific Sections of the Proposed Rule
Section 251.51--Definitions. This section of the proposed rule
added a definition for a ``recreation residence lot.''
[[Page 16618]]
Comment. Almost all who responded to the proposed rule commented on
the definition of a recreation residence lot. The majority of those
comments were nearly identical and many were made in the form of a
``check-the-box'' form letter. The most common concerns raised in these
comments were that (1) the definition of a recreation residence lot at
36 CFR 251.51 should be verbatim the definition of a ``lot'' in section
604(9) of CUFFA; (2) the proposed definition was contrary to the
language in CUFFA; (3) the proposed definition is an impermissible
attempt to enlarge the subject of an appraisal; (4) the proposed
definition seeks to redefine a lot as a ``site''; and (5) the
definition is objectionable, erroneous, and in violation of and in
conflict with CUFFA.
Response. Section 604(9) of CUFFA defines a ``lot'' as ``a parcel
of land in the National Forest System--(A) on which a cabin owner is
authorized to build, use, occupy and maintain a cabin and related
improvements; and (B) that is considered to be in its natural, native
state at the time at which use of the lot described in paragraph (A) is
first permitted by the Secretary.'' If this definition in CUFFA were
clear and unambiguous, the Department would agree that the definition
in section 604(9) of CUFFA should be simply repeated in section 251.51.
However, that is not the case. By including the words ``and related
improvements'' in the definition, Congress was expressing its intent
that a recreation residence lot include more than just that area of
National Forest System (NFS) land being occupied by the recreation
residence itself; that is, more than just the land occupied by the
footprint of a cabin. The language in CUFFA clearly states that a
recreation residence ``lot'' also includes those areas of NFS land
being used and occupied by ``related improvements,'' or improvements
owned and used by the owner of the recreation residence and used in
conjunction with that owner's recreation residence experience.
However, CUFFA is silent with respect to defining or describing
what constitutes such ``related improvements.'' The Department believes
that CUFFA's definition of a recreation residence ``lot'' has the high
potential of being a source of inconsistency and inequity. The
Department consequently believes that additional language in regulation
and agency policy is necessary to provide clarity to CUFFA's definition
of a lot, and to in turn assure consistency in implementing the
provisions of CUFFA.
The ambiguity that this part of the definition of a recreation
residence ``lot'' creates is evidenced by the comments received from
many who responded to this part of the proposed rule. Many responses
included comments that the terms ``related improvements'' could be
interpreted by the Forest Service to include extenuating facilities,
such as 3 miles of National Forest road used to access a recreation
residence or publicly provided facilities (such as, National Forest
picnic facilities, trails, boat docks, and so forth) used by recreation
residence permit holders. Individual concerns and interpretations
included in the comments received as to what constitutes ``related
improvements'' makes it clear that a definition of a recreation
residence lot clearly needs to be expanded upon. This is further
evidenced by some comments to the proposed rule which suggested that
without further clarity, where does an appraiser, or the agency, stop
when it comes to identifying the boundaries of a ``lot''? Therefore,
the Department disagrees with the numerous comments which suggested
that regulations and agency policies should be limited to simply
mirroring the language contained in the statute.
The Department disagrees with those who commented that the wording
in the proposed definition of a ``recreation residence lot'' at 36 CFR
251.51 is inconsistent with, in violation of, or in conflict with the
provisions of CUFFA. The proposed rule attempted to more clearly
articulate those facilities and uses that constitute ``related
improvements.'' It did so by stating at 36 CFR 251.51 that ``a
recreation residence lot is not necessarily confined to the platted
boundaries shown on a tract map or permit area map. A recreation
residence lot includes the physical area of all National Forest System
land being used or occupied by a recreation residence permit holder,
including, but not limited to land being occupied by ancillary uses,
such as septic systems, water systems, boat houses and docks, major
vegetative modifications, and so forth.'' This list of some of the uses
or occupancies of NFS land are those that are commonly conducted in
conjunction with, and as a part of, a permit holder's recreation
residence use. It was intended to refer to only those recreation
residence related improvements and facilities that are owned, operated,
and maintained by the holder of the recreation residence special use
permit.
The Department agrees with many of the comments which suggest that
the proposed rule's expansion of the definition of a lot didn't clearly
articulate this intent. Therefore, the definition in the final rule is
revised to make it clear that only ancillary uses ``owned and
maintained by the holder'' would be included in what constitutes a
``recreation residence lot.'' Furthermore, these comments have prompted
the inclusion in the final directives in section 33.05 (Definitions) of
Forest Service Handbook (FSH) 2709.11, examples of what constitutes
``related improvements'' in the context of defining the extent of a
recreation residence lot. In addition, when considering the boundaries
of a recreation residence ``lot,'' the authorized officer will identify
as ``related improvements'' the cumulative area of NFS land being
occupied by permit holder owned facilities, such as outbuildings, wood
piles, water systems, wastewater treatment facilities, retaining walls,
boat docks, picnic tables, driveways, private trails, boardwalks,
campfire rings, and so forth. The authorized officer will also consider
as ``related improvements'' those areas of NFS land where the holder
has manipulated and/or is maintaining a manipulation of native
vegetation and/or the natural contour of the land. Common examples are
the establishment and maintenance of lawns, or the installation of
landscaping features (terracing, bordering developed trails, and so
forth). Conversely, agency policy will also specify that a recreation
residence lot will not be defined by those areas of NFS land that are
solely used to manage native vegetation, with approval of the
authorized officer, for the purpose of protecting property or to
mitigate safety hazards, such as the need to occasionally remove or
fall a hazard tree or treat or manage vegetation to reduce fuel loading
and create defensible space to combat a wildfire.
The Department believes that this approach to identifying the
extent of a recreation residence lot is consistent with the definition
of a lot as used in CUFFA. Furthermore, it is entirely consistent with
the manner in which the Forest Service identifies the ``authorized
area'' for nearly all other types of special uses of NFS lands, such as
private access roads, fences, irrigation ditches, and so forth. It is
reasonable to identify the ``authorized area'' or ``permit area,'' or
in the case of a recreation residence special use, the ``lot,'' as
being all NFS land being used and occupied as part of the authorized
special use activity. It should include all NFS land that is occupied
by facilities owned or controlled by the permit holder. The lot should
also include all areas of NFS land upon which activities are being
conducted by the holder, which could not be conducted by the general
public's
[[Page 16619]]
use of the land without specific approval from a Forest Officer, and
uses and occupancies which can only legally occur when authorized with
a Forest Service-issued special use authorization. For example, the
construction and maintenance of trails, boardwalks, and boat docks, and
the placement of picnic tables and permanent campfire rings are common
to, and a part of, many recreation residence uses. All are facilities
that could not be placed on NFS land without a special use permit, and
wherever these types of improvements or facilities are situated, the
NFS land being used, occupied, and manipulated should be included in
the ``lot'' as a recreation residence lot as defined in CUFFA.
Finally, a large number of comments were received asserting that
the proposed rule attempted to redefine a lot as a ``site'' and that
doing so was in direct contravention to the language in CUFFA. The
Department reviewed the proposed rule, and failed to find any use of
the word ``site'' in the proposed definition of a lot at 36 CFR 251.51.
After a thorough review of both the proposed rule and the corresponding
proposed revisions to agency policy, the only place where the word
``site'' was used in conjunction with reference to a recreation
residence ``lot'' was in the proposed revision to section 33 of FSH
2709.11. In section 33, the Forest Service proposed a series of
additional definitions, including the definition of ``natural, native
state'' as being ``The condition of a lot or site, free of any
improvements, at the time at which the lot or site was first authorized
for recreation residence use by the Forest Service.'' The Department
believes that use of the word ``site'' in this definition is what
prompted more than 900 comments asserting an attempt to define a
``lot'' with use of the term ``site.'' The proposed definition of
``natural, native state'' quoted above was extracted almost verbatim
from section 604 (10) of CUFFA, which includes use of the term ``site''
in the exact manner in which it was proposed in section 33 of FSH
2709.11. However, the Department agrees that the use of the term
``site'' is confusing. Therefore, the term ``site'' will not be
included in the definition of a recreation residence ``lot.'' Neither
will the term ``site'' be used interchangeably with the word ``lot'' in
appraisal guidelines, contracts, or reports. However, to be reflective
of the language in CUFFA, the Forest Service will continue to use the
term ``site'' in its definition of ``native natural state'' in FSH
2709.11.
Comment. Several comments related to the proposed definition of a
recreation residence lot and suggested that many of the related
improvements associated with a recreation residence use, such as water
systems, boat houses, docks, septic systems, and so forth, should not
be considered part of the recreation residence term special use permit,
but should instead be authorized under separate types of special use
authorizations, such as separate easements or permits, and that a
separate land use fee be assessed for those types of facilities. By
doing so, many respondents suggested that the recreation residence lot
could then be kept to the minimum size possible. Other comments
suggested that any related improvements that are not owned by a single
cabin owner, but are instead used by a group or tract of cabin owners,
should not be included as part of the related improvements of any one
recreation residence lot, but that such improvements should be
authorized by a separate special use authorization issued in the name
of the group of cabin owners that actually owns and uses them.
Response. The Department disagrees with the concept that facilities
and uses such as water systems, powerlines, telephone lines,
boardwalks, boat houses, docks, lawns, picnic areas, and other
facilities and uses that are associated with a cabin owner's recreation
residence use of NFS land should be authorized with separate types of
permits and easements and assessed with individual land use fees. Doing
so would significantly increase administrative inefficiencies and
costs.
The Department does agree, however, with those respondents who
suggested that when a facility or use that is ancillary to recreation
residence uses are owned, operated, and maintained by more than a
single cabin owner, then such a use or facility should be authorized
under the terms and conditions of a separate special use authorization.
This is already common practice in most areas where, for example,
facilities such as community owned boat docks, swimming areas, water
systems, or sewage systems are authorized with a permit issued in the
name of the tract association or some other entity representing the
owners of those facilities. The final directives in FSH 2709.11
clarifies that uses owned and operated by a tract association, or other
entity representing the owners of those facilities, shall be authorized
by a separate authorization. Where that exists, the area of NFS land
being used and occupied by such improvements or facilities authorized
under a separate special use authorization will not be considered as
part of any one recreation residence lot for recreation residence
permit administration or appraisal purposes and a separate land use fee
for such permits will be assessed and collected, pursuant to agency
policy for special uses.
Comment. At least one respondent suggested that to remove all
ambiguity concerning what constitutes a recreation residence lot, the
Forest Service should provide every holder of a recreation residence
term special use permit with a surveyed plat of each lot and a precise
legal description of the bounds of that lot, to reflect comparable lots
located in subdivisions in the private sector. Doing so would eliminate
inconsistency and ambiguity by appraisers and administrators in
estimating the market value of lots and administering permits.
Response. The Department agrees that there may be instances in
which all of the NFS land currently being occupied by a recreation
residence and related improvements has not yet been clearly defined nor
agreed to between the Forest Service and the cabin owner. This is in
part because CUFFA established a new definition of a recreation
residence ``lot,'' which can extend beyond any previously paper platted
boundaries of a lot. It is also in part because the Forest Service has
not always adequately identified all of the related improvements in
existing permits and, in some cases, because cabin owners have added
improvements without prior authorization by the authorized officer. In
the next 3 years, nearly all of the 15,000 recreation residence term
special use permits will be due to expire. As they do, the Forest
Service will be diligently inspecting the facilities and improvements
located on each lot and will identify those uses to be included as
authorized uses in the preparation and issuance of a new permit upon
the expiration of the existing permit. In doing so, the cumulative area
of NFS land being used and occupied by the recreation residence and all
related improvements that will be authorized in those new permits will
define the size, shape, and configuration of the recreation residence
``lot'' authorized by each permit.
In the interim, the inventory of improvements that is required in
section 606(1)(a) of CUFFA will be conducted for every typical lot used
for appraisal purposes. That inventory will identify all the
improvements that are owned by the holder of each typical lot and, if
those lots are typical of each of the lots within the representative
group of lots, the cumulative area of NFS land being occupied by those
holder-owned
[[Page 16620]]
improvements, as documented in the inventory, will define the size,
shape, and configuration of the ``lot'' for appraisal and
administration purposes. If some of the recreation residences uses
within a group of lots represented by the typical lot are occupying a
significantly smaller or larger area of NFS land, the authorized
officer may consider, in consultation with the holders, a new group of
lots and associated representative typical lot. Alternatively, any lot
within a grouping of lots that is of significantly different size to
the typical lot representing that group might serve as the basis for
the authorized officer to make minor adjustments to a cabin user fee to
accommodate such differences.
The Department disagrees with comments that every recreation
residence lot needs to be marked, monumented, surveyed, and platted,
along with an associated legal description. The definition of the size,
shape, and configuration of each recreation residence lot will be
accomplished and documented through the procedures and mechanisms
previously described, without incurring the unnecessary and often
significant expense of conducting legal surveys and preparing survey
plats. However, permit holders who wish to establish a legal
description with on-the-ground monuments that clearly mark the extent,
size, shape, and configuration of their lot, as defined by CUFFA and
these regulations, may make requests to the authorized officer for
approval to do so.
Section 251.57--Rental Fees. This section of the proposed rule
added language to incorporate the provision in section 607 of CUFFA
that the base cabin user fee shall be 5 percent of the market value of
a recreation residence lot ``established by an appraisal or other sound
business management principles'' (Sec. 251.58(a)(3)), and section 606
of CUFFA that each permit or term permit for a recreation residence use
shall be conditioned to state that the Forest Service shall recalculate
the base cabin user fee at least every 10 years (Sec. 251.57(i)).
Comment. Many comments were received suggesting that use of the
words ``or other sound business management principles'' as a means of
determining the market value of a recreation residence lot, and the
subsequent base cabin user fee, was inconsistent with the provisions of
CUFFA and should be eliminated. The comments suggested that CUFFA
directs that the only means by which the market value of a recreation
residence lot may be determined is with an appraisal, conducted
pursuant to the provisions of CUFFA.
Response. The Department agrees with these comments. Use of the
words ``or other sound business management principles'' was carried
forward from current language in other sections of this part of 36 CFR
251.57 as an acceptable means for determining a fair market value land
use fee for other special uses of NFS lands. However, with respect to
recreation residence special uses, section 607 of CUFFA is clear in
directing that the market value of a recreation residence lot, for fee
determination purposes, be established by appraisal, pursuant to the
principles in section 606 of CUFFA. Therefore, ``or other sound
business management principles'' will be deleted from section 251.57 of
the final rule.
Comment. Comments were received concerning various sections in the
proposed rule and directives which referenced the annual fee for a
recreation residence special use, or the base cabin user fee, as a
``rental fee.'' The base cabin user fee, and how it would be determined
pursuant to CUFFA, was identified and included under section 251.57 of
the proposed rule, which is entitled ``Rental fees.'' Respondents
commented that a base cabin user fee is not the same as a rental fee,
and that equating it to a rental fee will confuse appraisers in their
implementation of the appraisal provisions of CUFFA and the Forest
Service's appraisal guidelines.
Response. The Department agrees with the concerns in these
comments. A cabin user fee is an annual fee collected for a special use
permit and is legally equivalent to a rental payment, which is more
typically collected pursuant to the terms and conditions of a lease or
a rental agreement. However, the Department will keep the reference to
a base cabin user fee under ``Rental fees'' because that is the most
appropriate section in the existing regulatory framework to address
this issue. However, the Forest Service will eliminate the use of the
terms ``rent,'' ``rental,'' or ``rental fees'' wherever they appear in
agency directives, appraisal guidelines, and instructions to appraisers
involving special use permit fees for recreation residence uses.
Instead, the agency will use either the term ``cabin user fee,'' or
``base cabin user fee'' (pursuant to the provisions of CUFFA), or the
term ``land use fee,'' when referencing the annual fee assessed and
collected from the holder of a term special use permit for a recreation
residence use.
Comment. Several comments questioned why section 251.57(a)(3) of
the proposed rule did not include the qualifier ``fair'' when
referencing that the base cabin user fee is ``5 percent of the market
value of the recreation residence lot.'' The respondents questioned why
the terminology of ``fair market value'' was not used here, because
that is the terminology used in section 602 of CUFFA. Without that
qualifier, respondents questioned whether market value is always
``fair.''
Response: Section 602 cited findings of Congress in its creation of
CUFFA, which state that ``the fact that current appraisal procedures
have, in certain circumstances, been inconsistently applied in
determining fair market values for residential lots demonstrates that
problems exist in accurately reflecting market values.'' However,
section 607 of CUFFA specifically directs that a cabin user fee shall
be established ``as the amount that is equal to 5 percent of the market
value of the lot.'' Section 606 of CUFFA directs that the Secretary
``establish an appraisal process to determine the market value of the
fee simple estate of a typical lot or lot.'' The prescriptive
provisions of sections 605, 606, and 607 use the terminology ``market
value'' without use of the qualifier ``fair''. Therefore, ``market
value'' is reflected in the final rule at section 251.57(a)(3).
4. Regulatory Certifications
Environmental Impact
The final rule makes terminology in part 251 consistent with CUFFA.
The changes are intended to improve administrative efficiencies and
have no environmental effects. Section 31.1b of FSH 1909.15 (57 FR
43180, September 18, 1992) excludes from documentation in an
environmental assessment or environmental impact statement rules,
regulations, or policies to establish Service-wide administrative
procedures, program processes, or instructions. The agency's assessment
is that this final rule falls within this category of actions and that
no extraordinary circumstances exist as currently defined that require
preparation of an environmental assessment or environmental impact
statement.
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive Order 12866 on regulatory planning and review. It has been
determined that this is not a significant rule. This final rule does
not have an annual effect of $100 million or more on the economy, nor
does it adversely affect productivity, competition, jobs, the
environment, public health and safety, or State or
[[Page 16621]]
local governments. This final rule does not interfere with an action
taken or planned by another agency, nor does it raise new legal or
policy issues. Finally, this final rule does not alter the budgetary
impact of entitlement, grant, user fee, or loan programs or the rights
and obligations of beneficiaries of such programs. Accordingly, this
final rule is not subject to Office of Management and Budget review
under Executive Order 12866.
This final rule has been considered in light of the Regulatory
Flexibility Act (5 U.S.C. 602 et seq.). Based on a threshold Regulatory
Flexibility Act analysis, prepared by the Forest Service for this final
rule, it has been determined that this final rule does not have a
significant economic impact on a substantial number of small entities
as defined by the act because the final rule does not impose
recordkeeping requirements on them; it does not affect their
competitive position in relation to large entities; and it does not
affect their cash flow, liquidity, or ability to remain in the market.
No Takings Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12630. It has been determined
that the final rule does not pose the risk of a taking of private
property.
Civil Justice Reform
This final rule has been reviewed under Executive Order 12988 on
civil justice reform. After adoption of this final rule, (1) all State
and local laws and regulations that conflict with this rule or that
impede its full implementation will be preempted; (2) no retroactive
effect will be given to this final rule; and (3) the Department will
not require administrative proceedings before parties may file suit in
court challenging its provisions.
Federalism and Consultation and Coordination With Indian Tribal
Governments
The agency has considered this final rule under the requirements of
Executive Order 13132 on federalism, and has made an assessment that
the final rule conforms with the federalism principles set out in this
Executive Order; does not impose any compliance costs on the States;
and does not have substantial direct effects on the States, the
relationship between the Federal Government and the States, or the
distribution of power and responsibilities among the various levels of
government. Therefore, the agency has determined that no further
assessment of federalism implications is necessary.
Moreover, this final rule does not have tribal implications as
defined by Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments, and therefore, advance consultation with
tribes is not required.
Energy Effects
This final rule has been reviewed under Executive Order 13211 of
May 18, 2001, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use. It has been determined that this
final rule does not constitute a significant energy action as defined
in the Executive Order.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the agency has assessed the effects of this final rule on State,
local, and tribal governments and the private sector. This final rule
does not compel the expenditure of $100 million or more by any State,
local, or tribal government or anyone in the private sector. Therefore,
a statement under section 202 of the act is not required.
Controlling Paperwork Burdens on the Public
The information collection associated with the permitting and
administration of recreation residences are covered under the approved
Office of Management and Budget (OMB) control number 0596-0082.
However, as provided by Section 614 of the Cabin User Fee Fairness Act
of 2000 ((CUFFA) 16 U.S.C. 6210-13) the final directive, published
elsewhere in this part of today's Federal Register, does contain a new
one-time information collection requirement in FSH 2709.11, Sec. Sec.
33.8 through 33.83. 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 apply. Approval of this information
collection requirement has been submitted for approval to the OMB. The
agency expects the new information collection required by CUFFA to be
approved by OMB prior to implementation of the provisions in Sec. Sec.
33.8 through 33.83.
5. Text of the Final Rule
List of Subjects in 36 CFR Part 251
Administrative practice and procedure, Electric power, National
forests, Public lands rights-of-way, Reporting and recordkeeping
requirements, Water resources.
0
For the reasons set out in the preamble, the Forest Service amends
subpart B of part 251 of title 36 of the Code of Federal Regulations to
read as follows:
PART 251--LAND USES
Subpart B--Special Uses
0
1. The authority citation for 36 CFR 251 is revised to read as follows:
Authority: 16 U.S.C. 472, 479b, 551, 1134, 3210, 6201-13; 30
U.S.C. 1740, 1761-1771.
0
2. In Sec. 251.51 add a definition for ``recreation residence lot'' in
the appropriate alphabetical order to read as follows:
Sec. 251.51 Definitions.
* * * * *
Recreation Residence Lot--a parcel of National Forest System land
on which a holder is authorized to build, use, occupy, and maintain a
recreation residence and related improvements. A recreation residence
lot is considered to be in its natural, native state at the time when
the Forest Service first permitted its use for a recreation residence.
A recreation residence lot is not necessarily confined to the platted
boundaries shown on a tract map or permit area map. A recreation
residence lot includes the physical area of all National Forest System
land being used or occupied by a recreation residence permit holder,
including, but not limited to, land being occupied by ancillary
facilities and uses owned, operated, or maintained by the holder, such
as septic systems, water systems, boat houses and docks, major
vegetative modifications, and so forth.
* * * * *
0
3. In Sec. 251.57 add new paragraphs (a)(3) and (i) to read as
follows:
Sec. 251.57 Rental fees.
(a) * * *
(3) A base cabin user fee for a recreation residence use shall be 5
percent of the market value of the recreation residence lot,
established by an appraisal conducted in accordance with the Act of
October 11, 2000 (16 U.S.C. 6201-13).
* * * * *
(i) Each permit or term permit for a recreation residence use shall
include a clause stating that the Forest Service shall recalculate the
base cabin user fee at least every 10 years and shall use an appraisal
to recalculate that fee as provided in paragraph (a)(3) of this
section.
[[Page 16622]]
Dated: December 26, 2005.
David P. Tenny,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 06-2888 Filed 3-28-06; 8:45 am]
BILLING CODE 3410-11-P