[Federal Register: May 13, 2003 (Volume 68, Number 92)]
[Proposed Rules]
[Page 25751-25785]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13my03-37]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 251
RIN 0596-AB83
Procedures for Appraising Recreation Residence Lots and for
Managing Recreation Residence Uses Under Cabin User Fee Fairness Act
AGENCY: Forest Service, USDA.
ACTION: Notice of proposed directives; request for comment.
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SUMMARY: In conjunction with a proposed rule published elsewhere in
this part of today's Federal Register, the Forest Service is proposing
changes to its directives for managing recreation residence special use
permits and for determining land use fees for recreation residences as
required by the Cabin User Fee Fairness Act of 2000. Guidance to forest
officers in the administration of recreation residences and the
determination of land use fees is issued in the Forest Service Manual
(FSM) Title 2300, Recreation, Wilderness, and Related Resource
Management; FSM Title 2700, Special Uses Management; Forest Service
Handbook (FSH) 2709.11, Special Uses Handbook; and FSH 5409.12,
Appraisal Handbook. Numerous revisions to these directives are
necessary to address the changes in administering and determining fees
for recreation residence lots pursuant to the act. Comments received in
response to this notice will be considered in development of the final
directives and final rule.
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 20250-1140; 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 by fax, the public is requested
not to send duplicate written comments via regular mail. Only one
response is required to address provisions contained in these proposed
directives and in the proposed rule published elsewhere in this part of
today's Federal Register. Please confine written comments to issues
pertinent to the proposed directives and proposed rule; 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 directives and the proposed rule 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 names and addresses when provided, are
placed in the record and are available for public inspection and
copying. The public may inspect comments received on these proposed
directives in the Office of the Director, Lands Staff, Forest Service,
USDA, 4th Floor-South, Sidney R. Yates Federal Building, 1400
Independence Avenue, SW., Washington, DC, between the hours of 8:30
a.m. to 4 p.m. on business days. Those wishing to inspect comments are
encouraged to call ahead to (202) 205-1248 or (202) 205-1064 to
facilitate entry into the building.
FOR FURTHER INFORMATION CONTACT: Randy Karstaedt, Lands Staff, (202)
205-1256, Forest Service, USDA.
SUPPLEMENTARY INFORMATION:
Table of Contents
1. Background
2. Regulatory Certifications
[sbull] Environmental Impact
[sbull] Regulatory Impact
[sbull] No Taking Implications
[sbull] Civil Justice Reform
[sbull] Unfunded Mandates
[sbull] Federalism and Consultation and Coordination with Indian
Tribal Governments
[sbull] Energy Effects
[sbull] Controlling Paperwork Burdens on the Public
3. Proposed Revisions to Recreation Residence Directives
[sbull] Forest Service Manual
[sbull] Chapter 2340, Privately Provided Recreation
Opportunities (text of proposed directive)
[sbull] Chapter 2720, Special Uses Administration (text of
proposed directive)
[sbull] Forest Service Handbook 2709.11--Special Uses
[sbull] Chapter 30--Fee Determination (text of proposed
directive)
[sbull] Forest Service Handbook 5409.12--Appraisal Handbook
[sbull] Chapter 6--Appraisal Contracting (text of proposed
directive)
[sbull] Table I--Section-by-Section Comparison Between the Current
and Proposed Recreation Residence Directives
1. Background
An analysis of the history and development of policy and
regulations
[[Page 25752]]
for the administration of recreation residences is found in the notice
of proposed rulemaking to Title 36, Code of Federal Regulations, part
251, subpart B (36 CFR part 251, subpart B) published elsewhere in this
part of today's Federal Register.
Most of the changes required by the Cabin User Fee Fairness Act of
2000 (CUFFA) affect current recreation residence policy contained in
the Forest Service Manual (FSM) and Forest Service Handbook (FSH)
directives. Accordingly, the changes to recreation residence management
identified in CUFFA will be implemented through revisions to the FSM
and FSH pursuant to CUFFA. Table I at the end of this notice has been
prepared as an aid to understanding the directive changes being
proposed. Table I displays the recreation residence policy provision,
its reference to the appropriate section of CUFFA, and a section-by-
section comparison of the current and the proposed policy provisions.
2. Regulatory Certifications
Environmental Impact
These proposed directives revise the 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 these proposed directives fall 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
These proposed directives have been reviewed under USDA procedures
and Executive Order 12866 on Regulatory Planning and Review. It has
been determined that this is not a significant action. The proposed
directives 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.
The proposed directives would not interfere with an action taken or
planned by another agency, or raise new legal or policy issues.
Finally, these proposed directives 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
These proposed directives have been analyzed in accordance with the
principles and criteria contained in Executive Order 12630. It has been
determined that the proposed directives do not pose the risk of a
taking of constitutionally protected private property.
Civil Justice Reform
These proposed directives have 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 these proposed
directives or that would impede full implementation of the proposed
directives. Nonetheless, in the event that such a conflict were to be
identified, the proposed directives, 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 these
proposed directives; 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 these proposed directives
on State, local, and tribal governments and the private sector. These
proposed directives 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 these proposed directives under the
requirements of Executive Order 13132 on federalism, and has made an
assessment that the proposed directives conform 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, these proposed directives do 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
These proposed directives have been reviewed under Executive Order
13211 of May 18, 2001, ``Actions Concerning Regulations That
Significantly Affect Energy Supply.'' It has been determined that these
proposed directives do not constitute a significant energy action as
defined in the Executive order.
Controlling Paperwork Burdens on the Public
These proposed directives do 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 collection requested as a
result of these directives have 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.
Dated: April 3, 2003.
Dale N. Bosworth,
Chief.
3. Proposed Revisions to Recreation Residence Directives
Note: The Forest Service organizes its Directive System by
alphanumeric codes and subject headings. Only those sections of the
Forest Service Manual and Handbook that are the subject of this
notice are set out here. The intended audience for this direction is
Forest Service employees charged with issuing and administering
recreation residence special use authorizations.
Forest Service Manual
Chapter 2340--Privately Provided Recreation Opportunities
2340.05--Definitions
* * * * *
Caretaker Cabin. A residence occupying a lot within a recreation
residence tract that is being used to provide caretaker services and
security to the recreation residences within that tract.
* * * * *
[[Page 25753]]
2347.1--Recreation Residences
(For further direction, see FSM 2721.23 and FSH 2709.11.)
Recreation residences are a valid use of National Forest System lands.
They provide a unique recreation experience to a large number of owners
of recreation residences, their families, and guests. To the maximum
extent practicable, the recreation residence program shall be managed
to preserve the opportunity it provides for individual and family-
oriented recreation. It is Forest Service policy to continue recreation
residence use and to work in partnership with holders of these permits
to maximize the recreational benefits of recreation residences.
* * * * *
2347.12--Caretaker Cabins
2347.12a--Authorization
Authorize caretaker cabin use of a recreation residence lot with an
annual permit, Form FS-2700-4, under the Act of June 4, 1897. Require
applicants who currently have a recreation residence term special use
permit to request that the Forest Service revoke their recreation
residence permit, as a condition for qualifying for a caretaker cabin
authorization. A caretaker cabin may be owned by a tract association,
and the authorization may be issued in the name of the head of that
association.
2347.12b--Caretaker Cabin Use
The need for a caretaker cabin rarely can be justified where
yearlong occupancy is already authorized in the tract. The Forest
Supervisor may authorize a caretaker cabin in limited cases where it is
demonstrated that caretaker services are needed for the security of a
recreation residence tract and alternative security measures are not
feasible or reasonably available. The annual fees for a caretaker cabin
special use permit shall not be greater than the fee charged for the
use of the lot as a recreation residence, as determined by the fee for
a typical lot representative of the group of lots that includes the lot
upon which the caretaker cabin use is authorized.
* * * * *
Chapter 2720--Special Uses Administration
* * * * *
2721.23--Recreation Residences
* * * * *
2721.23d--Fee Determination
1. Use market value as determined by appraisal in determining the
base annual fees for recreation residence lots. Determine a new base
fee at 10-year intervals.
Forest Service Handbook (FSH) 2709.11--Special Uses Handbook
Chapter 30--Fee Determination
* * * * *
33--Recreation Residence Lot Fees
Recreation residence lot fees shall be assessed and paid annually.
33.05--Definitions
Cabin. A privately owned structure that is authorized to occupy
National Forest System land for use as a recreation residence.
Market Value. The amount in cash, or on terms reasonably equivalent
to cash, for which in all probability the property would have sold on
the effective date of the appraisal, after a reasonable exposure time
on the open competitive market, from a willing and reasonably
knowledgeable seller to a willing and reasonably knowledgeable buyer,
with neither acting under any compulsion to buy or sell, giving due
consideration to all available economic uses of the property at the
time of the appraisal.
Natural, Native State. 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.
Recreation Residence. A privately owned, noncommercial residence,
and its auxiliary buildings and improvements, located upon National
Forest System lands and authorized by a recreation residence term
special use permit. A recreation residence is maintained by the permit
holder for personal, family, and guest use and enjoyment. A recreation
residence shall not serve as a permanent residence.
Recreation residence lot. (For this definition, see 36 CFR 251.51.)
Simple Majority. More than 50 percent.
Term Permit. (For this definition, see 36 CFR 251.51 and FSM 2705.)
Tract. An established location within a National Forest containing
one or more cabins authorized in accordance with the recreation
residence program.
Typical Lot. A recreation residence lot in a tract that is selected
for appraisal purposes as being representative of value characteristics
similar to other recreation residence lots within the tract. All
recreation residence lots represented by a typical lot shall be
characterized as a group for appraisal purposes. A tract may have one
or more groups of lots, with each group represented by a typical lot. A
typical lot may be the only recreation residence lot in a group, and
may be appraised to represent only itself, when it has unique value
characteristics unlike any other recreation residence lot in a tract.
33.1--Base Fees and Annual Adjustments
33.11--Establishing New Base Fee
The base fee for a recreation residence special use permit shall be
equal to 5 percent of the market value of the recreation residence lot
as determined by appraisal. The base fee shall be recalculated at least
once every 10 years.
The authorized officer shall notify the holder in writing at least
one (1) year in advance of implementation that a new base fee has been
determined by appraisal conducted in accordance with procedures
contained in section 33.4 of this Handbook. If a second appraisal,
secured by the holder (sec. 33.7) and approved by the agency, prompts
the authorized officer to reconsider the new base fee amount, the
revision to the base fee may be implemented at any time after the end
of the one-year period following the initial notification.
The date of a billing for payment of a new base fee, or the date of
a billing for the first payment of a phase-in amount (sec. 33.12) of a
new base fee, shall constitute the date of implementation of the new
base fee.
33.12--Phase-In of Base Fee
Require the holder to pay the full amount of a new base fee if that
new base fee results in an increase of 100 percent or less from the
amount of the most recent annual fee assessed the holder.
When the new base fee is greater than a 100 percent increase from
the amount of the most recent annual fee assessed the holder, implement
the new base fee increase in three (3) equal increments over a 3-year
period. Annual adjustments (sec. 33.13) shall be included in the
calculation of fees that are incrementally phased-in over the 3-year
period.
The following example illustrates the manner in which a new base
fee would be phased in when the new base fee results in an increase of
more than 100 percent from the most recent annual fee assessed the
holder:
------------------------------------------------------------------------
2002 Fee amount 2003 New base fee Increase
------------------------------------------------------------------------
$700 $1,600 \1\ $900
------------------------
2003 Phase-in Fee: $700 (2002 fee) + $300 (\1/3\ of fee increase 100%) = $1,000
2004 Phase-in Fee: $1,000 (2003 fee) + $300 (\1/3\ of fee increase 100%) x 1.03* (annual IPD-GDP increase of 3%) = $1,339
[[Page 25754]]
2005 Phase-in Fee: $1,339 (2004 fee) + $300 (\1/3\ of fee increase 100%) x 1.03* (annual IPD-GDP increase of 3%) = $1,688
2006 Phase-in Fee $1,688 (2005 fee) x 1.03* (annual IPD-GDP increase of
3%) = $1,739
------------------------------------------------------------------------
\1\ 100% increase.
*3% annual IPD-GDP adjustment is used for illustrative purposes only.
The actual annual IPD-GDP rate would be used for each of the phase-in
amounts in years 2004 through 2006.
33.13--Annual Adjustment of Recreation Residence Fee
Recreation residence fees shall be adjusted annually using the 2nd
quarter to 2nd quarter change in the Implicit Price Deflator, Gross
Domestic Product (IPD-GDP).
An annual adjustment to the base fee shall be no more than 5
percent in any single year. When the annual change to the IPD-GDP
results in an annual adjustment of more than 5 percent, apply the
amount of the adjustment in excess of 5 percent to the annual fee
payment for the next year in which the change in the index factor is
less than 5 percent.
The following two examples illustrate how annual fees are adjusted
in years during which the annual change in the IPD-GDP index exceeds 5
percent:
Example 1: Only 1 year in which the IPD-GDP adjustment exceeds
5%.
2004 Fee = $700
2005 IPD-GDP adjustment = 7%* ($700 x .07 = $49)
Maximum adjustment/year = 5% ($35)
2005 carryover adjustment = 2% ($14)
2005 Fee = $700 (2004 fee) x .05 (max. adj/yr.) = $735
2006 IPD-GDP adjustment = 3%*
Carryover adjustment from 2005 = $14
2006 Fee = $735 (2005 fee) + $14 (2005 carryover) x 1.03 = $771
Example 2: Multiple-year IPD-GDP adjustments exceeding 5%.
2004 Fee = $700
2005 IPD-GDP adjustment = 7%* ($700 x .07 = $49)
Maximum adjustment/year = 5% ($35)
2005 carryover adjustment = 2% ($14)
2005 Fee = $700 (2004 fee) x 1.05 (max. adj/yr.) = $735
2006 IPD-GDP adjustment = 7%* ($735 x .07 = $51)
Maximum adjustment/year = 5% ($37)
2006 carryover adjustment = 2% ($14)
Total carryover (2005 & 2006) = $28
2006 Fee = $735 (2005 fee) x 1.05 (max. adj/yr.) = $772
2007 IPD-GDP adjustment = 3%* (2
(above) shall be assessed as a premium fee amount, in three (3) equal
annual installments, in addition to the phase-in of the new base user
fee established by the results of the new appraisal.
The authorized officer shall, upon receipt of a formal request,
initiate a new appraisal of the typical lot in accordance with the
regulations, policies, and appraisal guidelines adopted pursuant to
CUFFA. The date of value of the new appraisal shall be the same date of
value as that identified in the appraisal it is intended to replace.
33.83--Request for Peer Review Conducted Under Regulations, Policies,
and Appraisal Guidelines Established Pursuant to CUFFA
A request for a peer review of an existing appraisal completed
since September 30, 1995, shall be made within two years following the
adoption of regulations, policies, and appraisal guidelines for
recreation residences pursuant to CUFFA. The request shall be submitted
in writing to the authorized officer and must be signed by a majority
of the recreation residence holders within the group of recreation
residence lots represented by the typical lot that was appraised. The
holders requesting the peer review shall, in their request, agree to
collectively pay for one-half the cost to commission the
[[Page 25758]]
review. In addition, holders requesting a peer review where the
appraisal to be reviewed established a base fee that was more than a
$3,000 annual increase to the fee being assessed the holders on October
1, 1996, shall include the following statement as a part of their
request:
We hereby agree that, if the new base fee resulting from the peer
review that we are hereby requesting results in an amount that is 90
percent or more of the fee determined by the previously completed
appraisal of this typical lot (specifically, that appraisal dated ----
------, with an estimated fee simple value of $--------, and an
indicated annual fee of $--------), then each of the permit holders
within this group of recreation residence lots shall be obligated to
pay to the United States the following:
1. The base fee that shall be established pursuant to this peer
review, subject to the phase-in provisions of section 609 of CUFFA; and
2. The difference between (a) the annual fee that was paid during
calendar years --------, --------, -------- (enter each calendar year
beginning with that year when a new base fee based upon the above-
referenced appraisal would have otherwise been implemented), and ending
with calendar year---------- (insert the calendar year in which the
request for a peer review is made), and (b) the amount that the annual
fee for each of those identified calendar years would otherwise have
been, had a new base fee been assessed as a result of the above-
referenced appraisal, pursuant to the phase-in provisions in effect and
applicable during that time. This difference for those calendar years
cumulatively totals $ --------, as itemized on the enclosed worksheet
(enter the cumulative difference, and include an attached worksheet
showing how it was calculated, itemized for each of the calendar years
identified above). We agree that the cumulative amount identified in
Item 2 (above) will be assessed as a premium fee amount, in
three (3) equal annual installments, in addition to the phase-in of the
new base user fee established by the results of the peer review.
The authorized officer shall commission a peer review of the
existing appraisal upon receipt of a written request to do so and upon
submission of the appropriate documentation that shows that the request
is being made by a majority of the holders affected. The manner in
which the peer review is conducted shall be based upon the membership
in a professional organization of the appraiser who conducted that
appraisal as follows:
1. Appraisals Prepared by an Appraiser Who Is a Member of a Single
Appraisal Sponsor Organization of The Appraisal Foundation. If the
appraiser who prepared the appraisal that will be reviewed is a member
of a single appraisal sponsor organization of The Appraisal Foundation,
the authorized officer shall submit the appraisal report, appraisal
review report, and peer review report instructions to that appraisal
sponsor organization for assignment to a member of an established panel
of accredited or designated members selected by the sponsor
organization for the purpose of peer review. In consultation with the
accredited or designated panel member, the sponsor organization shall
provide the authorized officer an estimate of total cost for the peer
review. The authorized officer shall consult with a representative of
the permit holders requesting the peer review to determine if the
holders wish to proceed with the review, based on the estimated cost.
If a peer review is conducted, the review report shall be prepared in
compliance with the review instructions provided with the existing
appraisal. The peer review report shall be confined to an evaluation of
whether the original appraisal report includes provisions or procedures
that were implemented or conducted in a manner that is inconsistent
with regulations, policies, or appraisal guidelines adopted pursuant to
CUFFA and, if so, which provisions and to what effect. The peer review
report is not intended to be a formal technical appraisal review report
in compliance with Standards Rule 3-2 of the Uniform Standards of
Professional Appraisal Practice.
2. Appraisals Prepared by an Appraiser Who Is Not a Member of a
Sponsor Organization, or is a Member of Two or More Sponsor
Organizations of The Appraisal Foundation. If the appraiser who
prepared the appraisal that will be reviewed is not a member of a
sponsor organization of The Appraisal Foundation, or is a member of two
or more sponsor organizations of The Appraisal Foundation, the
authorized officer shall submit the appraisal report, appraisal review
report, and peer review report instructions, after consultation with
the requesting permit holders, to a sponsor organization that has
established a panel for peer review of recreation residence lot
appraisals. If the authorized officer and a majority of the requesting
permit holders cannot agree on which sponsor organization to solicit
for the peer review, the authorized officer shall make the decision
based upon a recommendation from the Regional Appraiser. The authorized
officer shall request the selected appraisal sponsor organization to
assign a member of the established panel of accredited or designated
members to conduct the peer review. The authorized officer shall also
request the sponsor organization to provide the authorized officer, in
consultation with the accredited or designated panel member, an
estimate of total cost for the peer review. The authorized officer
shall consult with a representative of the requesting permit holders to
determine if the holders want to proceed with the review, based on the
estimated costs. If a peer review is conducted, the review report shall
be prepared in compliance with the review instructions provided with
the existing appraisal. The peer review report shall be confined to
evaluation of whether the original appraisal report includes provisions
or procedures that were implemented or conducted in a manner that is
inconsistent with regulations, policies, or appraisal guidelines
adopted pursuant to CUFFA and, if so, which provisions and to what
effect. The peer review report is not intended to be a formal technical
appraisal review report in compliance with Standard Rule 3-2 of the
Uniform Standards of Professional Appraisal Practice.
a. If the peer review shows that the appraisal is consistent with
the regulations, policies, and appraisal guidelines adopted pursuant to
CUFFA, the authorized officer shall establish a new base fee using 5
percent of the fee simple value of the typical lot identified in the
appraisal.
b. If the peer review results in a determination that the appraisal
was not conducted in a manner consistent with the regulations,
policies, and appraisal guidelines adopted pursuant to CUFFA, the
authorized officer shall either
(1) Establish a new base fee to reflect consistency with the
regulations, policies, and appraisal guidelines adopted pursuant to
CUFFA, or
(2) Conduct a new appraisal in accordance with the provisions of
CUFFA if requested by a majority of the affected holders.
* * * * *
FSH 5409.12--Appraisal Handbook
Chapter 6--Appraisal Contracting
6.5--Appraisals for Special Purposes
6.53--Recreation Residence Lots
The standard specifications for recreation residence lot appraisals
shall be used Service-wide (sec. 6.9, ex.06). Do not modify or deviate
from these
[[Page 25759]]
specifications without the approval of the Washington Office, Director
of Lands.
Require all appraisers conducting a second appraisal for a
recreation residence lot to submit an Assignment Agreement (sec. 6.9,
ex. 07).
6.9--Exhibits
Exhibit 06--Required Specifications for Appraisal of Recreation
Residence Lots
Exhibit 07--Assignment Agreement for Appraisal of Recreation Residence
Lots
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[FR Doc. 03-11695 Filed 5-12-03; 8:45 am]
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