[Federal Register: May 13, 2003 (Volume 68, Number 92)]
[Proposed Rules]
[Page 25747-25751]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13my03-36]
[[Page 25747]]
-----------------------------------------------------------------------
Part III
Department of Agriculture
-----------------------------------------------------------------------
Forest Service
-----------------------------------------------------------------------
36 CFR Part 251
Special Uses; Managing Recreation Residences and Assessing Fees Under
Cabin User Fee Fairness Act; Proposed Rule
[[Page 25748]]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 251
RIN 0596-AB83
Special Uses; Managing Recreation Residences and Assessing Fees
Under Cabin User Fee Fairness Act
AGENCY: Forest Service, USDA.
ACTION: Notice of proposed rulemaking; request for comment.
-----------------------------------------------------------------------
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 Forest Service is proposing
changes to its special uses regulations and also to the related agency
directives published elsewhere in this issue of the Federal Register.
The proposed 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. Public comment is invited and will be considered
in the development of the final rule and directives.
DATES: Comments must be received in writing by August 11, 2003.
ADDRESSES: Send written comments to Forest Service, USDA, Attn:
Director of Lands, Mail Stop 1104, Washington, DC 20250-1104; by
electronic mail to the World Wide Web/Internet site at http://www2.srs.fs.fed.us/cuffa/cuffa.html <http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www2.srs.fs.fed.us/cuffa/cuffa.html>
or by fax to (202) 205-1604. If
comments are sent by electronic mail or fax, the public is requested
not to send duplicate written comments via regular mail. In addition,
only one response is required to address provisions contained in this
proposed rule and the proposed directives published elsewhere in this
part of today's Federal Register. Please confine written comments to
issues pertinent to the proposed rule and directives; explain the
reasons for any recommended changes; and where possible, reference the
specific section or paragraph being addressed. Those responding to the
proposed rule, directives, and appraisal guidelines may want to review
the provisions of the Cabin User Fee Fairness Act of 2000 before
formulating their response. A copy of the act may be viewed and
downloaded from the World Wide Web/Internet site previously listed. The
Forest Service may not include in the administrative record for the
proposed rule and proposed directives those comments it receives after
the comment period closes (see DATES) or comments delivered to an
address other than those listed in this ADDRESSES section.
All comments, including the names, street addresses, and other
contact information about respondents, will be available for public
review 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 4:30 p.m.), Monday through Friday, except holidays. Those
wishing to inspect comments are encouraged to call ahead (202) 205-1256
or (202) 205-1064, to facilitate access to the building.
FOR FURTHER INFORMATION CONTACT: Randy Karstaedt, Lands Staff (202)
205-1256, Forest Service, USDA.
SUPPLEMENTARY INFORMATION:
Table of Contents
1. Background
2. Major Provisions of the Cabin User Fee Fairness Act of 2000
(CUFFA)
3. Section-by-Section Explanation of Proposed Revisions to 36 CFR
part 251, subpart B
4. Regulatory Certifications
1. Background
On August 16, 1988 (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 had previously been 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 year of the appraisal
during the years 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 restudy and reformulation, 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) the policy's 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 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.
As previously stated, the 1988 policy established base fees
pursuant to 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. Appraisals completed in 1997 revealed varying
degrees of increases in the fair market
[[Page 25749]]
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 (Pub. L.
105-83). Section 343 of this act provided for a three-year phase-in of
recreation residence fee increases when a new appraisal of a recreation
residence lot results in fees that exceeded 100 percent of the previous
land use fees.
In fiscal year 1999, Congress responded to the concerns of
recreation residence permit holders on the Sawtooth National Forest in
Idaho by directing the Forest Service not to increase recreation
residence fees on the Sawtooth National Forest in fiscal year 1999 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 with fee assessments for
recreation residence uses with the October 12, 2000, passage of the
Cabin User Fee Fairness Act of 2000 (CUFFA). One of the primary
purposes of CUFFA is to establish a consistent and fair process for
appraising the fee simple value of recreation residence lots on NFS
lands.
2. Major Provisions of the Cabin User Fee Fairness Act of 2000 (CUFFA)
The Cabin User Fee Fairness Act of 2000 (CUFFA) directs the
Secretary of Agriculture to promulgate regulations and policies to
implement the provisions of the act within two years of its passage.
The major provisions of CUFFA include: (1) Establishment of a base
annual fee for recreation residence special use permits that is 5
percent of the appraised fee simple value of the lot; (2) direction for
the establishment of new guidelines for conducting appraisals of
recreation residence lots; (3) an appraisal cycle shortened from the
current 20 years to 10 years; and (4) the right of appeal and judicial
review of a base cabin user fee determination.
Section 608 of CUFFA provides for annual adjustments to recreation
residence fees based on changes to the Index of Agricultural Land
Prices, published by the Department of Agriculture. Currently, the
Forest Service adjusts annual fees for recreation residence using the
2nd quarter to 2nd quarter change in the Implicit Price Deflator, Gross
Domestic Product (IPD-GDP) with a 10 percent increase cap in any one-
year billing period. During the transition period identified in section
614 of CUFFA, the Forest Service is continuing to use the IPD-GDP as
the means for annually indexing fees. This direction was provided to
agency managers on February 20, 2003, in interim directive 2709.11-
2003-1, issued to the Forest Service Handbook (FSH) 2709.11, chapter 30
(68 FR 8197). The Forest Service shall, however, limit annual increases
using the IPD-GDP to 5 percent in any one year during the transition
period as provided in section 608(d) of CUFFA. When the transition
period ends, the Forest Service will use the Index of Agricultural Land
Prices to index annual fees as provided in section 608 of CUFFA.
Section 606(a)(3) of CUFFA directs the Secretary to contract with a
professional appraisal organization to develop appraisal guidelines for
determining fees for recreation residences. The Forest Service
contracted with The Appraisal Foundation (TAF) to assist in the
development and review of the proposed appraisal guidelines. TAF is the
single authority in the United States for development and
interpretation of appraisal standards, such as those referenced in
CUFFA. In addition, TAF is the only Congressionally recognized
appraisal organization responsible for developing and interpreting the
Uniform Standards of Professional Appraisal Practice (USPAP) as
provided by the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989.
TAF assisted the Forest Service in the development of the proposed
appraisal guidelines. In its report dated October 8, 2002, TAF also
documented that the proposed appraisal guidelines the Forest Service
developed are in conformance with section 606 of CUFFA by stating: ``*
* * they (draft appraisal guidelines) follow exactly the directions in
the act.'' TAF did recommend minor, mostly editorial changes to the
draft of the proposed appraisal guidelines. The revised draft appraisal
guidelines are found in the proposed directives to Forest Service
Handbook (FSH) 5409.12, Appraisal Handbook, section 6.9, exhibit 06,
published elsewhere in this part of today's Federal Register.
Section 611 of CUFFA provides for the right of appeal and judicial
review for recreation residence permit holders. The Department has
reviewed this requirement and has determined that current regulations
at Title 36, Code of Federal Regulations, part 251, Land Uses, subpart
C, Appeal of Decisions Relating to Occupancy and Use of National Forest
System Lands (36 CFR part 251, subpart C) provide all holders of
recreation residence term permits the right to appeal a written
decision by an authorized officer regarding the issuance, approval, and
administration of their permits. The authorized officer's
implementation of a new base fee, pursuant to provisions outlined in
the proposed rule and directives published elsewhere in this part of
today's Federal Register, constitutes a written decision subject to
these appeal regulations. Therefore, existing regulations at 36 CFR
part 251, subpart C, already provide the right of appeal identified in
section 611 of CUFFA, and the Department is not proposing any new or
amended appeal regulations for implementing that section of CUFFA.
Section 614 of CUFFA provides for a transition period during which
the recreation residence fees in place on September 30, 1995, could not
be increased by more than $3,000 from the amount of the annual fee in
effect on October 1, 1996, excluding annual indexing. The transition
period ends for a recreation residence permit holder when a base fee
for their recreation residence is established through guidelines
contained in final regulations, directives, and appraisal guidelines
developed pursuant to CUFFA. The Forest Service issued an interim
directive implementing these transition provisions for fee
determinations on February, 20, 2003 (68 FR 8197) (ID 2709.11-2003-1 to
FSH 2709.11).
Pursuant to the provisions of CUFFA previously outlined, the Forest
Service is proposing revisions to its special uses regulations at 36
CFR part 251, subpart B, as set out in this notice, and also is
[[Page 25750]]
proposing new appraisal guidelines and revisions to administrative
procedures set out in proposed directives published elsewhere in this
part of today's Federal Register.
3. Section-by-Section Explanation of Proposed Revisions to 36 CFR Part
251, Subpart B
Section 251.51--Definitions. This section of the current regulation
defines many of the terms and phrases used in subpart B. The proposed
rule would add a definition for a recreation residence lot as described
in section 604 of CUFFA. Consistent with the act, a recreation
residence lot includes all National Forest System (NFS) land on which a
cabin owner is authorized to build, use, occupy, and maintain a cabin
and related improvements. Therefore, a recreation residence lot is not
necessarily confined to the plotted boundaries as shown on a tract map,
but may include all of the area occupied by the recreation residence
and its related improvements.
Section 251.57--Rental Fees. This section of the current regulation
describes how fees for special use authorizations are determined.
Proposed paragraph (a)(3) would provide that the base fee for
recreation residences would be established by appraisal or other sound
business management principles pursuant to the provisions in CUFFA.
Proposed paragraph (a)(3) would also state that the base cabin user fee
is established as being 5 percent of the market value of the recreation
residence lot. Proposed paragraph (i) would require that permits and
term permits authorizing recreation residence uses state that the
Forest Service shall recalculate the base cabin user fee at least once
every 10 years by use an appraisal or other sound business management
principles to calculate that fee as provided for in paragraph (a)(3).
4. Regulatory Requirements
Environmental Impact
These proposed revisions establish administrative procedures for
determining market value for recreation residences on National Forest
System lands. Section 31.1b of Forest Service Handbook (FSH) 1909.15
(57 FR 43180, September 18, 1992) 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.
Regulatory Impact
This proposed 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 proposed rule
would not have an annual effect of $100 million or more on the economy,
or adversely affect productivity, competition, jobs, the environment,
public health or safety, or State or local governments. This proposed
rule would not interfere with an action taken or planned by another
agency, or raise new legal or policy issues. Finally, this proposed
rule would not alter the budgetary impacts of entitlements, grants, or
loan programs or the rights and obligations of recipients of such
programs.
No Takings Implications
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 12630. It has been
determined that the proposed rule does not pose the risk of a taking of
Constitutionally protected private property.
Civil Justice Reform
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. The agency has not identified any State or local
laws or regulations that are in conflict with this proposed rule or
that would impede full implementation of the proposed rule.
Nonetheless, in the event that such a conflict were to be identified,
the proposed rule, if implemented, would preempt the State and local
laws or regulations found to be in conflict. However, in that case, (1)
no retroactive effect would be given to this proposed rule; and (2) the
Department would not require the use of 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), which the President signed into law on March 22,
1995, 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
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.
Federalism and Consultation and Coordination With Indian Tribal
Governments
The agency has considered this proposed rule under the requirements
of Executive Order 13132 on federalism, and has made an assessment that
the proposed rule conforms with the federalism principles set out in
this Executive order; would not impose any compliance costs on the
States; and would not have substantial direct effects on the States, on
the relationship between the Federal government and the States, or on
the distribution of power and responsibilities among the various levels
of government. Therefore, the agency has determined that no further
assessment of federalism implications is necessary at this time.
Moreover, this proposed 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 proposed rule has been reviewed under Executive Order 13211 of
May 18, 2001, ``Actions Concerning Regulations That Significantly
Affect Energy Supply.'' It has been determined that this proposed rule
does not constitute a significant energy action as defined in the
Executive order.
Controlling Paperwork Burdens on the Public
This proposed rule does not contain any record-keeping or reporting
requirements or other information collection requirements as defined in
5 U.S.C. part 1320 that are not already required by law or not already
approved for use. Any information collected from the public as a result
of this action has been approved by the Office of Management and Budget
under control number 0596-0082. Accordingly, the review provisions of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR part 1320 do not apply.
List of Subjects in 36 CFR Part 251
Electric power, Mineral resources, National forests, Rights-of-way,
and Water resources.
For the reasons set forth in the preamble, the Forest Service
proposes to amend part 251 of title 36 of the Code of Federal
Regulations as follows:
[[Page 25751]]
PART 251--LAND USES
Subpart B--Special Uses
1. The authority citation for part 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.
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 uses
such as septic systems, water systems, boat houses and docks, major
vegetative modifications, and so forth.
* * * * *
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 or other sound business management
principles conducted in accordance with the Act of October 12, 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
or other sound business management principles to recalculate that fee
as provided in paragraph (a)(3) of this section.
Dated: May 3, 2003.
Dale N. Bosworth,
Chief.
[FR Doc. 03-11694 Filed 5-12-03; 8:45 am]
BILLING CODE 3410-11-P
This archive was generated by hypermail 2b29 : 2003/05/13 EST