[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]



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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  

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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:

------------------------------------------------------------------------
                                                               Number of
                   Affiliation or category                     responses
------------------------------------------------------------------------
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
------------------------------------------------------------------------

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.

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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