Proposed Rules. Notice of proposed directives; request for comment

Agency: Forest Service, USDA
Action: Notice of proposed directives; request for comment
Citation: FR Doc. 03-11695 · RIN 0596-AB83 · 36 CFR 251

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.

Supplementary Information

Table of Contents 1. Background 2. Regulatory Certifications • Environmental Impact • Regulatory Impact • No Taking Implications • Civil Justice Reform • Unfunded Mandates • Federalism and Consultation and Coordination with Indian Tribal Governments • Energy Effects • Controlling Paperwork Burdens on the Public 3. Proposed Revisions to Recreation Residence Directives • Forest Service Manual • Chapter 2340, Privately Provided Recreation Opportunities (text of proposed directive) • Chapter 2720, Special Uses Administration (text of proposed directive) • Forest Service Handbook 2709.11—Special Uses • Chapter 30—Fee Determination (text of proposed directive) • Forest Service Handbook 5409.12—Appraisal Handbook • Chapter 6—Appraisal Contracting (text of proposed directive) • 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 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. 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%) × 1.03* (annual IPD-GDP increase of 3%) = $1,339 2005 Phase-in Fee: $1,339 (2004 fee) + $300 ( 1/3 of fee increase > 100%) × 1.03* (annual IPD-GDP increase of 3%) = $1,688 2006 Phase-in Fee $1,688 (2005 fee) × 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 × .07 = $49) Maximum adjustment/year = 5% ($35) 2005 carryover adjustment = 2% ($14) 2005 Fee = $700 (2004 fee) × .05 (max. adj/yr.) = $735 2006 IPD-GDP adjustment = 3%* Carryover adjustment from 2005 = $14 2006 Fee = $735 (2005 fee) + $14 (2005 carryover) × 1.03 = $771 Example 2: Multiple-year IPD-GDP adjustments exceeding 5%. 2004 Fee = $700 2005 IPD-GDP adjustment = 7%* ($700 × .07 = $49) Maximum adjustment/year = 5% ($35) 2005 carryover adjustment = 2% ($14) 2005 Fee = $700 (2004 fee) × 1.05 (max. adj/yr.) = $735 2006 IPD-GDP adjustment = 7%* ($735 × .07 = $51) Maximum adjustment/year = 5% ($37) 2006 carryover adjustment = 2% ($14) Total carryover (2005 & 2006) = $28 2006 Fee = $735 (2005 fee) × 1.05 (max. adj/yr.) = $772 2007 IPD-GDP adjustment = 3%* (