[Federal Register Volume 73, Number 139 (Friday, July 18, 2008)]
[Proposed Rules]
[Pages 42236-42252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16496]




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Part III





Department of the Interior





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Bureau of Reclamation



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43 CFR Part 429



Use of Bureau of Reclamation Land, Facilities, and Waterbodies; 
Proposed Rule

  Federal Register / Vol. 73, No. 139 / Friday, July 18, 2008 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Bureau of Reclamation

43 CFR Part 429

RIN 1006-AA51


Use of Bureau of Reclamation Land, Facilities, and Waterbodies

AGENCY: Bureau of Reclamation, Interior.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Bureau of Reclamation (Reclamation) proposes a rule on the 
use of Reclamation land, facilities, and waterbodies. The proposed rule 
addresses among other topics the cost recovery of fees for authorized 
uses involving the possession or occupancy of any portion of, and the 
extraction or disturbance of any natural resource from Reclamation 
land, facilities, and waterbodies; how to apply for a use authorization 
including what application forms to use; and what uses are prohibited 
and associated consequences. When finalized, the proposed rule will 
supersede the current rule which was originally published in 1983 and 
partially revised in April 2006.

DATES: Submit comments by September 16, 2008.
    The dates of the informational meetings to be held regarding this 
proposed rule are listed in the SUPPLEMENTARY INFORMATION section of 
this proposed rule.

ADDRESSES: You may submit comments, identified by the number 1006-AA51, 
by one of the following methods:

--Use the Federal rulemaking Web site: http://www.regulations.gov and 
follow the instructions for submitting comments. Please use the docket 
identification number BOR-2008-0004 which has been assigned to this 
rule when submitting your comments to the rulemaking Web site.
--By mail to: Bureau of Reclamation, Denver Federal Center, P.O. Box 
25007, Denver, CO 80225-0007, Attention: Richard Rizzi, Mail Code: 84-
53000.

    The locations of the informational meetings to be held regarding 
this proposed rule are listed in the SUPPLEMENTARY INFORMATION section 
of this proposed rule.

FOR FURTHER INFORMATION CONTACT: Richard Rizzi, Mail Code: 84-53000; 
Bureau of Reclamation; P.O. Box 25007; Denver, CO 80225. Telephone: 
(303) 445-2900.

SUPPLEMENTARY INFORMATION: 

I. Background

    The current rule, 43 CFR part 429, titled Procedure to Process and 
Recover the Value of Rights-of-Use and Administrative Costs Incurred In 
Permitting Such Use (current rule), established the procedures to 
recover administrative costs associated with processing ``right-of-
use'' applications and the value of rights-of-use granted by 
Reclamation to applicants for the use of Reclamation land. Sections of 
the current rule were modified, in part, in 2006 to correlate with 43 
CFR part 423, titled Public Conduct on Bureau of Reclamation 
Facilities, Lands, and Waterbodies.
    This proposed rule addresses activities involving the possession or 
occupancy of any portion of, and the extraction or disturbance of any 
natural resources from, Reclamation land, facilities, and waterbodies. 
Regulations addressing public access to Reclamation property and 
occasional public activities such as hiking, camping, boating, and 
hunting, and closures are contained in 43 CFR part 423.
    The demand for use of Reclamation land, facilities, and waterbodies 
for many different kinds of activities has increased dramatically since 
Reclamation began building Federal water supply, flood control, and 
hydropower projects over 100 years ago. With increased and varied uses 
has come confusion among the potential users of Reclamation land, 
facilities, and waterbodies about the process of applying for the 
various types of uses, the charges and fees associated with such uses, 
and other concerns. The current rule does not adequately address this 
confusion nor does it address prohibited and unauthorized uses of 
Reclamation's land, facilities, and waterbodies and associated 
penalties.
    The Independent Offices Appropriation Act (IOAA) (31 U.S.C. 9701), 
September 13, 1982, as amended, sets forth Congress' intent that any 
use, permit, or similar thing of value provided by an agency is to be 
self-sustaining and that the IOAA authorizes agencies to prescribe 
rules establishing charges for such uses. The 1993 revision of the 
Office of Management and Budget (OMB) Circular A-25 established Federal 
policy directing that administrative costs be recovered for Government 
services and fees for the use or sale of Government goods or resources 
also be charged. OMB Circular A-25 provides information on the scope 
and types of activities subject to use fees and the basis on which 
these fees are established. It also provides guidance for agencies in 
implementing such fees and charges. The use of Reclamation land, 
facilities, or waterbodies is a use of Government resources, and as 
such, the IOAA and OMB Circular A-25 direct Reclamation to recover the 
costs and fees associated with the use of these resources.
    Section 10 (43 U.S.C. 373) of the Reclamation Act of June 17, 1902, 
provides the Secretary of the Interior (Secretary) with the authority 
to issue rules as necessary for the purposes of carrying out the 
provisions of the Act. Section 10 (43 U.S.C. 387) of the Reclamation 
Project Act of 1939 provides the Secretary the authority, in his 
discretion, to grant leases, licenses, easements, and rights-of-way. 
These two Acts provide Reclamation with the general statutory authority 
to issue rules on authorizing or prohibiting uses of Reclamation land, 
facilities, and waterbodies.
    This proposed rule addresses:
    (a) The possession or occupancy of any portion of, or the 
extraction or disturbance of any natural resource from, Reclamation 
land, facilities, and waterbodies;
    (b) The procedures to follow when the proposed use involves a 
Reclamation easement;
    (c) The procedures to apply for use of Reclamation land, 
facilities, and waterbodies that involves the possession or occupancy 
of any portion of, or the extraction or disturbance of any natural 
resource from, Reclamation land, facilities, or waterbodies;
    (d) The criteria Reclamation will use to evaluate applications;
    (e) Our statutory authority and the basis for charging application 
fees, recovering administrative costs, and collecting use fees 
associated with authorized uses;
    (f) Conditions under which application fees, administrative costs, 
or use fees may be waived or reduced if determined appropriate by 
Reclamation or as currently listed in OMB Circular A-25;
    (g) The required terms and conditions associated with use 
authorizations;
    (h) Prohibited uses of Reclamation land, facilities, and 
waterbodies and how Reclamation will resolve unauthorized uses;
    (i) The criteria Reclamation will use to evaluate existing 
authorizations for otherwise prohibited uses of Reclamation land, 
facilities, and waterbodies; and
    (j) The decisions and appeals process applicable to actions taken 
under this part.

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II. Revision of Existing Rules

    On December 20, 1983, Reclamation published 43 CFR part 429 titled 
Procedure to Process and Recover the Value of Rights-of-Use and 
Administrative Costs Incurred in Permitting Such Use in the Federal 
Register at 48 FR 56223. Sections of this rule were revised on April 
17, 2006, in the Federal Register at 71 FR 19802 to better correlate 
with 43 CFR part 423. The sections that were revised or added were 
Sec.  429.1 Purpose, Sec.  429.2 Definitions, Sec.  429.3 Establishment 
of the value of rights-of-use, Sec.  429.6 Applications for rights-of-
use, Sec.  429.12 Applicability, and Sec.  429.13 General Restrictions.
    On July 18, 2007, we published a notice in the Federal Register at 
72 FR 39530 announcing the availability of the proposed rule for a 90-
day public comment period ending on October 16, 2007. We requested that 
comments be submitted by the public using one of the following methods: 
posting on the Federal rulemaking web site, through emailing, or 
mailing to the listed address. As a result of comments received, the 
proposed rule has been revised and is being provided to the public for 
further comment through this publication in the Federal Register.
    When the public comment period closes on this proposed rule, we 
will consider comments and incorporate them, where appropriate. The 
final rule will then be published in the Federal Register. That final 
rule, titled Use of Bureau of Reclamation Land, Facilities, and 
Waterbodies, will supersede the 1983 version and its 2006 modifications 
in their entirety.

III. Informational Meetings

    Informational meetings regarding the proposed rule will be held in 
each of our five regions in the 17 western states. These meetings will 
be informational in nature only. Public comments offered at the 
meetings will not be recorded or accepted into the official record. You 
must submit your comments as instructed in the ADDRESSES section of 
this proposed rule. The dates, times, and locations of these meetings 
listed by Reclamation region follow:

Pacific Northwest Region

    Moses Lake, Washington--Wednesday, July 30, 2008, 4 p.m., Big Bend 
Community College, 7662 Chanute Street NE.
    Boise, Idaho--Wednesday, August 20, 2008, 4 p.m., Boise Public 
Library, 715 South Capitol Boulevard.
    For further information regarding the meetings, please contact 
Diana Cross at telephone number 208-378-5020.

Mid-Pacific Region

    Sacramento, California--Monday, August 18, 2008, 6 p.m., Federal 
Office Building, 2800 Cottage Way.
    For further information regarding the meeting, please contact Peter 
Lucero at telephone number (916) 978-5101.

Lower Colorado Region

    Boulder City, Nevada--Tuesday, August 5, 2008, 2 p.m., Lower 
Colorado Regional Office, Mead Building.
    Phoenix, Arizona--Wednesday, August 6, 2008, 2 p.m., Phoenix Area 
Office, 6150 West Thunderbird Road.
    Yuma, Arizona--Thursday, August 7, 2008, 9 a.m., Quartermaster 
State Historic Park, 201 N. 4th Avenue.
    For further information regarding the meetings, please contact 
Robert Walsh at telephone number (702) 293-8421.

Upper Colorado Region

    Grand Junction, Colorado--Wednesday, July 30, 1 p.m., Western 
Colorado Area Office, 2764 Compass Drive.
    Albuquerque, New Mexico--Tuesday, August 12, 2008, 1 p.m., 
Albuquerque Area Office, 555 Broadway NE.
    Salt Lake City, Utah--Monday, August 14, 2008, 1 p.m., Upper 
Colorado Regional Office, Bennett Federal Building, 125 South State 
Street.
    For further information regarding the meetings, please contact 
Barry Wirth at telephone number (801) 524-3774.

Great Plains Region

    Malta, Montana--Wednesday, August 20, 2008, 7 p.m., Marian Hills 
Golf Course.
    Helena, Montana--Thursday, August 21, 2008, 7 p.m., Helena Regional 
Airport.
    For further information regarding the meetings, please contact Mark 
Andersen at telephone number (406) 247-7609.

IV. Summary of Changes, Comments, and Responses

    This section of the preamble describes changes from the proposed 
rule published on July 18, 2007, and provides responses to the comments 
received on that proposed rule by section. Nearly 1,300 comments were 
submitted by the public during the 90-day comment period. Of those 
comments, approximately 95 percent related directly to Sec.  429.32, 
which discusses how we will address existing uses that are otherwise 
prohibited.
    Comments received that are similar in nature have been categorized 
by subject. Comments and our responses on general issues not related to 
a specific section of the preamble or text of the proposed rule are 
arranged first. This section is followed by comments regarding the 
preamble of the previously proposed rule and our responses; and lastly, 
the changes we have made, comments received, and our responses related 
to specific sections of the text of the previously proposed rule.

General Comments and Responses

    Comment: Support was expressed for the proposed changes to the 
current rule and would like to see more private exclusive use areas 
converted to public use areas.
    Response: Due to the overwhelming reaction received during the 
comment period, we have reconsidered this issue.
    Comment: Appreciation was expressed for the high quality recreation 
related services provided to the public by our non-Federal managing 
partners.
    Response: We will continue to work with our existing managing 
partners and seek out additional managing partners, when appropriate, 
to provide high quality recreation opportunities.
    Comment: It appears that the intent of the proposed rule is to 
phase out all private access to Reclamation waterbodies. This would 
have an adverse effect on recreational boating and fishing as a whole 
as well as on the economies of neighboring communities. Amend the rule 
to strongly favor recreational uses.
    Response: We do not intend to phase out the public's use of our 
waterbodies. Recreational use of these waterbodies will continue under 
this proposed rule.
    Comment: The current rule is adequate and there is no need for 
revision.
    Response: Although some adjustments were made in the revision that 
was published in 2006, additional revisions are needed to incorporate 
current Federal regulations and policies concerning the use of Federal 
land and cost recovery for those uses.
    Comment: Clarification is needed to describe which bodies of water 
or facilities will be subject to authorizations and fees.
    Response: All waterbodies and facilities that are directly managed 
by Reclamation are subject to the authorization requirements and fees 
specified in the current rule and will continue to be so under the 
provisions of the proposed rule.
    Comment: A number of commenters, including managing partners, 
expressed concern that they did not receive adequate notice regarding 
the proposed rule making.
    Response: We are providing a 60-day public comment period in 
conjunction with the publishing of this proposed

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rule and sending a copy of this proposed rule to each commenter who 
previously provided an address in a timely manner. Additionally, 
informational meetings as listed in the SUPPLEMENTARY INFORMATION 
section of this proposed rule are being conducted during the 60-day 
comment period.
    Comment: All water user organizations operating Reclamation 
projects under project operation and maintenance contracts should be 
specifically exempted from this proposed rule.
    Response: Under Sec.  429.4(b)(5) of this proposed rule, operation 
and maintenance activities on Reclamation land, facilities, and 
waterbodies authorized by contracts with water user organizations or 
Reclamation contractors do not require a use authorization.
    Comment: Reclamation should be maximizing its return for the use of 
Reclamation lands, facilities, and waterbodies by charging fees 
appropriately.
    Response: The proposed rule will comply with OMB Circular A-25 
which directs the recovery of administrative costs and use fees.
    Comment: Reclamation wants to eliminate all recreational and 
residential uses and replace them with grazing or agricultural permits 
at Nelson Reservoir in Montana.
    Response: Nelson Reservoir is known to provide valuable public 
recreational opportunities. We have no plans to eliminate all 
recreational and residential uses at Nelson Reservoir and replace them 
with grazing or agricultural permits.
    Comment: Specific requirements addressing riparian zone protection 
should be included in all grazing permits.
    Response: Terms required in all use authorizations issued by 
Reclamation are listed under Sec.  429.28 of the proposed rule. 
Additional terms and conditions or requirements are determined on a 
case-by-case basis to meet local, environmental compliance, and other 
legal requirements as stated under Sec.  429.29 of the proposed rule.
    Comment: It is unclear as to how this rule will affect non-Federal 
managing partners and their ability to continue to administer the 
Reclamation land and facilities that have been transferred to them at 
reservoirs for recreation and related purposes.
    Response: Paragraph 429.4(b) specifically excludes sites managed by 
non-Federal managing partners from the requirements associated with 
issuing recreational use authorizations that do not violate Subpart H 
of these regulations (e.g., allow for new private exclusive 
recreational or residential uses). Depending on the agreement between 
Reclamation and the non-Federal entity, the entity may also be 
authorized to issue use authorizations under Paragraph 429.5.
    Comment: The mandated placement of fencing between private property 
and the lakeshore at Lake Cascade, Idaho, will have a negative affect 
on adjacent homeowners and many people who recreate in the area.
    Response: Any operational or management plans for fencing at Lake 
Cascade, Idaho, are not mandated by or directly related to this 
proposed rule.

Preamble Comments and Responses

    Only those sections of the preamble to the proposed rule that 
received comments are discussed in this section.
IV. Procedural Requirements
    Comment: This section should include a meaningful analysis of 
Reclamation's intent for proposing Subpart H of the proposed rule.
    Response: The reason we are including Subpart H is because it is 
our responsibility to notify the public of uses that are prohibited on 
Reclamation land, facilities, and waterbodies; thus the primary purpose 
of Subpart H. Based on the comments received in 2007, we have revised 
our approach with regard to existing private exclusive recreational and 
residential use, while maintaining the prohibition on any new such 
uses.
1. Regulatory Planning and Review (Executive Order (E.O.) 12866)
    Comment: Under paragraph (a) this is a significant rule which under 
E.O. 12866 will have an effect of $100 million or more on the economy 
due to additional financial burdens being placed on the public.
    Response: The proposed rule actually lessens some of the impacts 
placed on the economy. As an example, the application fee is reduced 
from $200 to $100 in the proposed rule. The total amount of fees and 
charges we annually collect for uses of Reclamation land, facilities, 
and waterbodies is well under $100 million.
    Comment: Paragraph (b) states that this rule would not create a 
serious inconsistency or otherwise interfere with actions of another 
Federal agency. Other Federal agencies, however, seemingly continue to 
allow for private exclusive recreational or residential uses.
    Response: Each Federal agency has authorities, regulations, and 
policies that are unique to their mission and responsibilities and will 
necessarily result in differing practices for the management of lands 
and resources. How we address private exclusive recreational and 
residential uses has no impact on how other Federal agencies address 
that issue.
2. Regulatory Flexibility Act
    Comment: Because this rule expands use fees and authorizations to 
include navigable waterbodies and facilities, many associated small 
businesses will be required to submit reports to the agency to comply 
with the fee determining process.
    Response: The current rule requires that applicable use fees be 
paid for authorized uses of Reclamation waterbodies and facilities 
pursuant to OMB Circular A-25; the proposed rule does not expand on 
that requirement. Additionally, the proposed rule does not impose a 
reporting or recordkeeping requirement on small businesses.
3. Small Business Regulatory Enforcement Fairness Act
    Comment: The expansion of fees and cost recovery to facilities and 
waterbodies could result in increased costs or prices for consumers, 
individual industries, etc.
    Response: Section 429.1 of the current rule requires that 
applicable fees and cost recovery be assessed for the authorized use of 
Reclamation lands as well as facilities and waterbodies. The proposed 
rule does not expand on that requirement.
5. Takings (E.O. 12630 and E.O. 13406)
    Comment: Reclamation's determination that this proposed rule would 
have no implications for takings of private property rights is invalid.
    Response: This rule applies only to Reclamation land, facilities, 
and waterbodies. Any private personal property lawfully placed on 
Reclamation land, facilities, or waterbodies is there only by our 
permission through a use authorization. No real property rights are 
conveyed for Reclamation land, facilities, and waterbodies through such 
a use authorization. Additionally, Reclamation is not responsible for 
maintaining the value of private personal property, particularly when 
the authorized uses are not in compliance with the terms of the 
existing use authorization.
10. National Environmental Policy Act of 1969 (NEPA)
    Comment: This action does have a significant effect on the quality 
of the human environment because of the

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impacts it would have on development in major urban areas. There is a 
need for an environmental assessment or environmental impact statement 
pursuant to NEPA.
    Response: The proposed rulemaking is a categorically excluded 
action pursuant to Department of the Interior Departmental Manual 516, 
Chapter 2, Appendix 1, Exclusion 1.10. As applications for specific use 
authorizations are evaluated under the proposed rule, the appropriate 
Reclamation office will determine the type of NEPA analysis that is 
warranted for the specific use requested.
13. Clarity of This Regulation
    Comment: In general, the proposed rule is vague, confusing, and/or 
inconsistent in content.
    Response: Changes have been made to the previously proposed rule to 
clarify sections that were specifically identified by commenters as 
unclear. We have also made editorial changes to improve the readability 
of the proposed rule.

Changes, Comments, and Responses Related to the Text of the Proposed 
Rule

Subpart A--Purpose, Definitions, and Applicability
    Comment: The effects of Sec. Sec.  429.3, 429.4, and 429.5 on non-
Federal managing partners are not clear and appear to be contradictory. 
Section 429.3(d) states that grazing, farming, and other agricultural 
uses require an authorization under this part. Section 429.4(b), 
however, states that activities at sites managed by non-Federal 
managing partners under Public Law 89-72 do not require authorization 
under this part. Additionally, Sec.  429.5 states that only Reclamation 
is authorized to issue use authorizations under this part.
    Response: Section 429.4(b) lists uses that are not subject to this 
proposed rule and specifically includes ``recreational activities at 
sites managed by non-Federal managing partners under Public Law 89-72, 
titled Federal Water Project Recreation Act, July 9, 1965, as amended . 
* * *'' Therefore Sec. Sec.  429.3(d) and 429.5 would not apply to our 
non-Federal managing recreation partners for recreational related uses.
    Section 429.1 This section describes the purpose of 43 CFR part 
429.
    To be consistent with changes made at Sec.  429.32, we added 
paragraph (f) to this section that describes how we will address 
existing permitted uses which are otherwise prohibited, including the 
criteria for approval or denial of requests to renew or transfer these 
permits. The paragraphs following were appropriately renumbered. Minor 
editorial changes were made to this section as compared to the 
previously proposed rule.
    Section 429.2 This section establishes the definitions for terms 
that are used in part 429.
    We made changes to this section as compared to the previously 
proposed rule by adding definitions for the following terms: easement, 
managing partner, part 21 of this title and public needs. We also 
broadened the definition of water user organization.
    Comment: The definition for private exclusive recreational or 
residential use is ambiguous and should more clearly explain what the 
extended period of time is that creates such a use.
    Response: The inclusion of a time component does create confusion 
and would wrongly imply that certain exclusive uses could be allowable 
for a limited time without a use authorization. We have now removed the 
reference to ``extended periods of time.'' Normal recreational 
activities, including camping for up to 14 days within a 30 day period, 
are specifically exempted by section 429.4(a). We have also provided 
examples of the most common instances of private exclusive recreational 
and residential use in the definition itself.
    Comment: The definitions in the proposed rule for Reclamation land 
and Reclamation facility should be amended to restore the words from 
the current rule under Sec.  429.6. This change would limit the 
applicability of the proposed rule to those lands and facilities that 
are in the control and custody of Reclamation; and would recognize that 
although Reclamation lands continue to be owned by the United States, 
they are managed by and placed in the custodial control of the water 
user organizations with whom Reclamation holds contracts.
    Response: This proposed rule applies to all land and facilities 
under our jurisdiction. It is our responsibility to manage these lands 
in the best interest of the United States and in compliance with 
applicable Federal statutes, regulations, and policies.
    Section 429.3 This section describes the types of uses of and 
activities on Reclamation land, facilities, and waterbodies that 
typically require a use authorization under part 429.
    We made only minor editorial changes to this section as compared to 
the previously proposed rule. It should be noted that part 5 of this 
title addresses some types of filming and photography on certain areas 
under the jurisdiction of the Department of the Interior. However, part 
5 of this title is specific to other agencies within the Department of 
the Interior not including Reclamation.
    Comment: Section 429.4 is not needed since the uses that require 
authorization are listed in Sec.  429.3. Only individuals who are 
seeking an authorization will be using this rule.
    Response: If there are common uses that do not require 
authorization, it is important that we notify the public in this 
proposed rule.
    Section 429.4 This section lists the types of uses of and 
activities on Reclamation land, facilities, and waterbodies that do not 
require authorization under part 429.
    We made editorial changes to this section as compared to the 
previously proposed rule.
    Comment: Paragraph (a) of this section states the types of 
activities that do not require authorization under this part which 
raises a concern regarding the well-being and safety of managing water 
user organization employees as they are performing their operation and 
maintenance duties on a daily basis. This paragraph seems to allow the 
general public access to all facilities. Such accessibility will not 
only increase operation and maintenance costs as a result of increased 
wear on roadways, but also dumping, vandalism, and opportunities for 
accidents.
    Response: Access to lands, facilities, and waterbodies under our 
jurisdiction is administered under 43 CFR part 423. Water user 
organizations should work through their local Reclamation office to 
establish closures for areas or facilities such as canals, laterals, or 
water pipelines that are unsafe or not appropriate for general public 
access as established under Subpart B of 43 CFR part 423.
    Comment: Paragraph (b)(5) of this section which suggests that 
Reclamation contracts for water supply or water operations do not 
require Reclamation authorization is directly contradictory to Sec.  
429.5 which states that water user associations have no authority to 
permit uses of Reclamation property.
    Response: Paragraph (b)(5) of this section states that Reclamation 
contracts for water supply or water operations do not require a use 
authorization. Under paragraph (b)(6) of this section water user 
associations are not required to obtain use authorizations for their 
contractual operation and maintenance activities on Reclamation land, 
facilities, or waterbodies.
    Comment: There is no need to list the uses that do not need 
authorization since we have listed those that do under Sec.  429.3.

[[Page 42240]]

    Response: We have provided information in this section specifying 
what common uses do not require authorization for clarification and as 
notification to the general public and our managing partners.
    Comment: Clearly list what activities are authorized on Reclamation 
land. Be specific to water conveyance facilities.
    Response: We have listed uses requiring an authorization at Sec.  
429.3. These uses must be authorized when they are on Reclamation land, 
facilities, or waterbodies which includes water conveyance facilities.
    Comment: Clarify what activities managed by other Federal agencies 
or Interior bureaus are exempted from authorization under this part.
    Response: Activities managed by other Federal agencies on 
Reclamation land, facilities, or waterbodies must be covered by an 
agreement or authority as specified in paragraph (b) of this section. 
For example, some recreation sites on Reclamation lands along the 
Colorado River are managed by the National Park Service through 
statutory authority.
    Comment: Differentiating between how lands are managed directly by 
Reclamation or by other Federal agencies or bureaus will create 
disparate treatment.
    Response: Each Federal agency has its own missions and authorities. 
These divergent missions and authorities will necessarily result in 
differing practices for the management of lands and resources.
    Comment: The 14-day limit for camping should be increased.
    Response: Reclamation's 14-day limit in any 30-day period is 
established under 43 CFR part 423.33(b). This proposed rule does not 
address that limitation.
    Section 429.5 This section addresses who is authorized under part 
429 to issue use authorizations.
    We have made changes to this section as compared to the previously 
proposed rule to state that recreation managing partners and water user 
organizations whose existing contracts with Reclamation allow them to 
do so may issue some limited use authorizations to third parties for 
activities on Reclamation land, facilities, and waterbodies provided 
those limited use authorizations meet the requirements listed in this 
section. It should be noted that all revenues collected for the use of 
Reclamation land, facilities, and waterbodies must be handled in 
compliance with all statutory, regulatory, and policy requirements.
    Comment: Water user organizations are specifically prohibited by 
this section from authorizing the use of project lands and as a result 
existing use authorization that they have issued may be nullified.
    Response: Water user organizations who have assumed responsibility 
for operation and maintenance of Reclamation land, facilities, or 
waterbodies pursuant to a contract with Reclamation may issue limited 
use authorizations to third parties for activities on Reclamation land, 
facilities, or waterbodies when all of the requirements listed in Sec.  
429.5 have been met.
    Comment: The proposed rule contradicts the terms of existing 
contracts between Reclamation and water user organizations for 
operation and maintenance of Reclamation projects.
    Response: Water user organizations who have assumed responsibility 
for operation and maintenance of Reclamation land, facilities, or 
waterbodies pursuant to a contract with Reclamation may issue limited 
use authorizations to third parties for activities on Reclamation land, 
facilities, or waterbodies when all of the requirements listed in Sec.  
429.5 have been met.
    Comment: The proposed rule would adversely affect water user 
organizations' ability to issue grazing permits and collect subsequent 
revenues from those permits creating a financial burden on the water 
user organizations and their farmers.
    Response: As noted above, we have made modifications that may allow 
for use authorizations to be issued by water user organizations. 
Financial issues can be impacted by project-specific laws, but in all 
cases revenues should be handled in accordance with all applicable 
statutes, regulations, and policies.
    Section 429.6 This section details when water user organizations 
must approve Reclamation's use authorizations.
    This section has been changed compared to the previously proposed 
rule to reflect provisions found in section 10 of the Reclamation 
Project Act of 1939 (43 U.S.C. 387) and to express the need for 
compatibility between use authorizations and a managing water user 
organization's ability to operate and maintain the facilities for which 
they have contractual operation and maintenance responsibility.
    Comment: Retain the language in the current rule or add language to 
the proposed rule that clearly states that water user organizations 
will continue to be alerted to uses that might interfere with their 
operation and maintenance of Reclamation project lands.
    Response: We have made changes to this section to re-incorporate 
some of the language in the current rule and to more clearly express 
the need for compatibility between requested uses and water user 
organizations' ability to manage the facilities for which they have 
contractual operation and maintenance responsibility.
Subpart B--Proposed Uses Involving Reclamation Easements
    Section 429.7 This section discusses the use of land not owned by 
Reclamation, but where Reclamation holds easements.
    We have made changes to paragraphs (a), (b), and (c) of this 
section compared to the previously proposed rule. These changes are 
intended to improve the clarity of this subpart and not to change its 
intent or purpose.
    Comment: Reclamation should be required to issue a consent document 
if the use does not unreasonably interfere with its easement. Doing so 
would increase the revenues being collected.
    Response: Reclamation lacks the authority to require users of 
private lands to pay use fees to Reclamation for the use of those 
private lands. When issuing a consent document is determined to be 
compatible with the intended project purposes for which the easement 
was obtained, all other appropriate and applicable fees are collected 
as required by regulation and policy.
    Section 429.8 This section discusses whether fees are required for 
the use of Reclamation easements.
    We made only minor editorial changes to this section as compared to 
the previously proposed rule. We received no comments on this section.
Subpart C--Requesting Authorizations To Use Reclamation Land, 
Facilities, and Waterbodies
    Section 429.9 This section explains what you should do before 
filing an application.
    We made no changes to this section as compared to the previously 
proposed rule. We received no comments on this section.
    Section 429.10 This section describes what application forms to use 
and how to determine which application form is appropriate to use.
    We made no changes to this section as compared to the previously 
proposed rule. We received no comments on this section.
    Section 429.11 Where the use authorization application forms can be 
found is provided in this section.

[[Page 42241]]

    We made no changes to this section as compared to the previously 
proposed rule.
    Comment: The forms as currently drafted do not include enough 
specificity regarding the required information to be submitted with an 
application. The current rule at Sec.  429.6 is clearer and more 
detailed in listing what is required.
    Response: This comment will be taken into consideration as we 
review Reclamation's Right-of Use Form 7-2540 for possible adjustments 
this year.
    Section 429.12 The appropriate location for filing an application 
is listed in this section.
    We made no changes to this section as compared to the previously 
proposed rule. We received no comments on this section.
    Section 429.13 This section tells how long the application review 
process will take.
    We made minor editorial changes to this section as compared to the 
previously proposed rule.
    Comment: Seven days should be an adequate amount of time to 
acknowledge receipt of an application and a determination to either 
accept or deny the request should be made within fourteen days.
    Response: While we will strive to respond to all applicants as 
quickly as possible, there are certain times of the year when the 
volume of applications exceeds our staff resources. Consequently we may 
not be able to respond within seven days. In order to meet the time 
frames suggested by this comment at such peak times, we would have to 
increase our staffing resources which would lead to higher fees for all 
applicants. We believe the approach we have selected is in the best 
interest of all parties.
    Section 429.14 The criteria Reclamation will consider when 
reviewing applications is described in this section.
    We made minor editorial changes to this section for clarity.
    Comment: The criteria used in reviewing applications are too broad 
and cannot be applied fairly and impartially.
    Response: We review each use application as it is submitted on a 
case-by-case basis considering the criteria under Sec.  429.14. As 
stated on the submitted application forms, we may request additional 
information as necessary to assist us in making a determination as to 
whether the proposed use of Reclamation land, facilities, or 
waterbodies is appropriate.
    Comment: Add an additional criterion that would require the 
proposed activity receive the consent of any affected water user 
organization.
    Response: Although we have not incorporated this comment into the 
criteria under Sec.  429.14, we have made changes to Sec.  429.6 to 
more specifically address this issue.
    Section 429.15 This section discusses whether Reclamation is 
required to issue use authorizations.
    We changed this section by adding a statement to the affect that 
all use authorizations must meet required criteria prior to issuance.
    Comment: Reclamation should not have the authority to issue 
authorizations at its discretion. Reclamation should be required to 
have a justification for declining an application.
    Response: We issue use authorizations at our discretion in order to 
protect the interests of the United States, as all use authorizations 
must be compatible with the purposes for which the Reclamation managed 
lands are being administered.
Subpart D--Application Fees and Administrative Costs
    Section 429.16 The amount of the application fee and when to pay 
the fee is described in this section.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.
    Section 429.17 This section explains under what circumstances 
administrative costs will be collected.
    We made no changes to this section as compared to the previously 
published rule. We received no comments on this section.
    Section 429.18 This section explains when administrative costs will 
be due and payable.
    We made minor editorial changes to this section as compared to the 
previously published rule.
    Comment: The administrative costs associated with the application 
process are not well-defined.
    Response: Administrative costs are determined on a case-by-case 
basis depending on the staff time required to evaluate and process the 
application, and to monitor, and terminate the use authorization when 
necessary. The definition of administrative costs in Sec.  429.2 
provides a listing of the most common elements associated with 
administrative costs. In addition, Sec.  429.20 provides that upon 
written request an explanation of the administrative costs for a 
particular application will be provided.
    Section 429.19 This section describes what the process is when the 
initial estimate for administrative costs is insufficient.
    We made no changes to this section as compared to the previously 
published rule. We received no comments on this section.
    Section 429.20 This section describes how to request a detailed 
explanation of the administrative costs.
    We made no changes to this section as compared to the previously 
published rule. We received no comments on this section.
    Section 429.21 This section describes what occurs if the 
administrative costs are overpaid.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.
    Section 429.22 This section discusses whether future administrative 
costs can be charged after a use authorization is issued by 
Reclamation.
    We made changes in paragraph (b) of this section to more clearly 
state how use authorization holders will be notified of additional 
required fees and payments due.
    Comment: The language in this section is ambiguous and arbitrary 
because it does not provide businesses with a fair basis upon which to 
predict costs. Fees for monitoring costs and the adjustment of fees to 
meet current conditions could have adverse effects on existing 
operations.
    Response: We cannot anticipate all administrative type costs in the 
future. Thus, we must have the ability to collect additional 
administrative costs when necessary.
Subpart E--Use Fees
    Section 429.23 How Reclamation determines use fees is described in 
this section.
    We made no changes to this section as compared to the previously 
proposed rule.
    Comment: The valuation basis for determining fees is not adequately 
defined and should be more fully developed and researched.
    Response: The valuation process is established in our Directives 
and Standards, LND 05-01 Real Property Appraisal, which may be found on 
our Internet site.
    Section 429.24 This section explains when use fees should be paid.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.
    Section 429.25 This section describes the length of time allowed to 
both submit a use fee payment and accept the offered use authorization.

[[Page 42242]]

    We made minor editorial changes to this section as compared to the 
previously published rule. We received no comments on this section.
Subpart F--Reductions or Waivers of Application Fees, Administrative 
Costs, and Use Fees
    Section 429.26 This section describes under what conditions 
Reclamation may waive or reduce costs or fees.
    We made changes to paragraph (a) of this section to better define 
how a determination for fee waiver or reduction is made.
    Comment: This section is confusing and arbitrary. The conditions 
under which a waiver can be granted are too broad and not well defined. 
Most applicants would qualify to apply for a waiver or a reduction in 
fees.
    Response: The table found under paragraph (a) of this section 
specifically lists under what situations we may determine that it is 
appropriate to reduce or waive fees.
    Comment: No change should be made to the language in the current 
rule regarding fee waivers or reductions.
    Response: We are making changes to this section to comply with the 
Independent Offices Appropriation Act (IOAA) (31 U.S.C. 9701), 
September 13, 1982, as amended and the 1993 revision of the Office of 
Management and Budget (OMB) Circular A-25. The IOAA sets forth 
Congress' intent that any use, permit, or similar thing of value 
provided by an agency is to be self-sustaining and that agencies may 
prescribe rules establishing charges for such uses. OMB Circular A-25 
established Federal policy which requires administrative costs be 
recovered for Government services, and fees for the use or sale of 
Government goods or resources also be charged.
    Comment: This section should be eliminated and no fee waivers 
should be allowed.
    Response: Under certain circumstances, fee waivers may be allowed 
under the current rule and section 6 of OMB Circular A-25.
    Comment: Allowing fee waivers or reductions would limit the 
revenues currently being generated and returned to Reclamation and in 
some instances water user organizations.
    Response: Section 6 of OMB Circular A-25 allows for a reduced fee 
or waiver under certain circumstances.
Subpart G--Terms and Conditions of Use Authorizations
    Section 429.27 This section describes the general information that 
is contained in each use authorization.
    We made no changes to this section as compared to the previously 
proposed rule. We received no comments on this section.
    Section 429.28 Terms and conditions that apply to all use 
authorizations from Reclamation are outlined in this section.
    We made minor editorial changes in this section as compared to the 
previously proposed rule.
    Comment: We disagree with paragraph (a)(3) of this section which 
requires terms in every use authorization allowing Reclamation to 
unilaterally terminate a use authorization.
    Response: It is our responsibility to properly manage the land 
under our jurisdiction. On occasion we may need to terminate a use 
authorization and even do so unilaterally. However, such instances are 
rare and limited to very unusual circumstances which we have specified 
in this section.
    Section 429.29 This section describes additional terms and 
conditions or requirements that will be included in a use 
authorization.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.
    Section 429.30 This section explains whether a use authorization 
can be transferred or assigned to another individual or entity.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.
Subpart H--Terms and Conditions of Use Authorizations
    Section 429.31 This section describes what the prohibited uses are 
on Reclamation land, facilities, and waterbodies.
    We made minor editorial changes to this section as compared to the 
previously proposed rule.
    Comment: A state transportation agency opposes paragraph (b)(1)(v) 
of this section. The agency is concerned that this section will be in 
direct opposition to their policies and will deny property owners 
access to existing easements.
    Response: For property owners that currently have authorization to 
access their existing easements, this proposed rule does not include 
any changes. Those who are crossing Reclamation lands without 
authorization will need to follow the procedures to obtain 
authorization. The documentation of these access situations will 
benefit and protect all parties.
    Section 429.32 How Reclamation will address existing uses which are 
otherwise prohibited is discussed in this section.
    We have revised the approach with regards to existing private 
exclusive recreational and residential uses that were not previously 
addressed by 43 CFR part 21. Specifically, under the July 2007 proposed 
rule such uses would have eventually had to be removed. Under the 
revised rule, such uses can remain if certain criteria are met, and 
they will be treated in a manner very similar to that outlined in 43 
CFR part 21.
    Under Sec.  429.32(b)(1), we have added additional criteria to 
which all existing authorized private exclusive recreational and 
residential uses of Reclamation land, facilities, and waterbodies, 
including those defined under 43 CFR part 21, are subject.
    The overall majority of comments received relate to this section of 
the proposed rule. Most of these commenters hold existing use 
authorizations for cabin sites or other recreational or residential 
uses, including boat docks, on Reclamation land, facilities, or 
waterbodies.
    Comment: Many commenters are concerned that their existing use 
authorizations for private exclusive recreational and residential uses 
will not be renewed upon expiration.
    Response: We will renew private exclusive recreational and 
residential use authorizations provided that the requirements of this 
proposed rule are met. Some cabin sites are also governed by 43 CFR 
part 21, and those regulations (which govern all Department of the 
Interior agencies, not just Reclamation) are not affected by this 
rulemaking; however, because the monitoring and enforcement procedures 
in this proposed rule are actually based on the existing rules in 43 
CFR part 21, this dual regulatory coverage should have little practical 
impact. Such renewals will be for a period not to exceed 20 years and 
will be subject to periodic reviews that could potentially result in an 
early termination.
    Comment: Holders of existing use authorizations for private 
exclusive uses stated that they have invested a significant amount of 
money in improvements located on Reclamation land, facilities, or 
waterbodies, and do not want to lose that investment.
    Response: A use authorization for private exclusive recreational or 
residential use does not vest an interest in Reclamation land, 
facilities, or waterbodies with the holder of the use authorization. 
Any physical improvements made by the holder of the

[[Page 42243]]

use authorization should be done so with the understanding that the 
ownership of the land, facilities, or waterbodies will continue to 
remain with the United States.
    Comment: The holders of use authorizations are better stewards of 
the land than Reclamation. They invest many hours in not only keeping 
their own authorized use area cleaned up, but also cleaning up adjacent 
areas.
    Response: We recognize that many holders of use authorizations are 
responsible caretakers. As the manager of those Federal lands, however, 
we have the ultimate responsibility for those Federal lands, and we 
must make certain that they are managed in the best interests of the 
United States.
    Comment: It is ambiguous and unclear as to when 43 CFR part 21 
applies. Specifically list which segments of 43 CFR part 21 will be 
followed or specify that it will be followed in its entirety.
    Response: We have decided to use the requirements in 43 CFR part 21 
to develop the requirements that will apply to all existing private 
exclusive recreational and residential use authorizations. This should 
result in consistent treatment of uses regardless of whether the part 
21 regulations technically apply. For example, personal cabin sites 
were subject to the part 21 regulations if they were authorized 
directly by Reclamation, but similar sites were exempt from these 
regulations if the area was managed under a concession contract. Now, 
both types of sites will be subject to this proposed rule which mimics 
the procedures previously established in part 21. The cabin sites 
directly authorized by Reclamation remain under 43 CFR part 21 as well.
    Comment: Section 429.32(a) states that renewal requests for cabin 
sites administered under 43 CFR part 21 will be reviewed by the 
Commissioner and approved where appropriate. The term appropriate sends 
a foreboding message and is ambiguous.
    Response: The responsibility for renewing use authorizations for 
recreational or residential uses has been returned to the appropriate 
field office under this proposed rule.
    Comment: Clearly define under what rare exceptions waivers would be 
granted by the Commissioner for renewals of recreational or residential 
uses of Reclamation land.
    Response: The requirement for a waiver in order to renew an 
existing private exclusive recreational or residential use 
authorization has been removed from this proposed rule.
    Comment: Non-profit organizations that hold use authorizations for 
activities such as summer youth camps should not be subject to the same 
regulations and fee requirements as for-profit organizations.
    Response: Section 429.26(a) of the proposed rule and the table that 
follows describe under what circumstances we may determine that it is 
appropriate to reduce or waive fees. Item 5 of the table specifically 
applies to non-profit or educational entities when the use provides a 
general public benefit.
    Comment: If private boat docks are eliminated as a result of this 
proposed rule, public boat docks which are not always conveniently 
located and are over used will receive increased pressure.
    Response: Provided that existing authorized boat docks meet the 
requirements, this proposed rule would not prevent the use 
authorization from being renewed.
    Section 429.33 This section describes the consequences for using 
Reclamation land, facilities, and waterbodies without authorization.
    We made changes to paragraphs (b), (e), and (f) of this section for 
clarification purposes only. In addition, we added a new paragraph 
under (b) to specify how the interest rate to be applied to the use fee 
for unauthorized uses will be determined.
    Comment: Existing commercial outfitters and/or concessionaires 
should have a preferential right of renewal for their authorizations. 
Other Federal agencies and Department of the Interior bureaus utilize 
this method.
    Response: Through Reclamation policies and directives, we have 
instituted a process of fair and open competition with regard to 
concession and similar contracts.
    Comment: There is no valid reason for capping the fees that can be 
collected for unauthorized use to 6 years.
    Response: We have removed the 6 year cap on collecting use fees for 
unauthorized uses of Reclamation land, facilities, and waterbodies. The 
applicable statute of limitations will be applied based on the 
circumstances associated with each unauthorized use.
Subpart I--Decisions and Appeals
    Comment: The appeal process follows a path within the Department of 
the Interior. A fair appeal process would include a representative 
small group rather than a supervisor to supervisor system.
    Response: The appeals process includes a two tier approach. First a 
review by a Reclamation office other than the office that made the 
final determination. Next, if the appellant still disagrees with that 
decision, the matter can be reviewed by an outside agency should the 
appellant choose to pursue the issue. We believe this is a fair 
process.
    Section 429.34 The decisionmaker for Reclamation's final 
determinations is listed in this section and provides when that 
decision will be effective.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.
    Section 429.35 This section explains if and when an appeal can be 
made to a final determination.
    We made no changes to this section as compared to the previously 
proposed rule. We received no comments on this section.
    Section 429.36 This section describes if and when a Commissioner's 
decision can be appealed. The process for and timeliness of such an 
appeal is also discussed in this section.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.
    Section 429.37 This section discusses what happens to monies owed 
to the United States during an appeal process.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.

V. Distribution Table

    The following table indicates each section of the original 1983 
rule, as modified in 2006, and where each was incorporated into the 
proposed rule or not included as the case may be.

------------------------------------------------------------------------
              Old section                          New section
------------------------------------------------------------------------
429.1.................................  429.1.
429.2(a)-(n)..........................  429.2.
429.3(a)..............................  429.23.
429.3(b)..............................  429.33(a) and (c).
429.3(c)..............................  429.33(a) and (b).
429.4.................................  429.26.
429.5.................................  Removed.
429.6.................................  429.7(b); 429.12; and 429.14.
429.6(a)..............................  429.10.
429.6(a)(1)-(3).......................  Removed. Now contained in
                                         Application Forms.
429.6(b)..............................  429.16; 429.20-429.22; and
                                         429.26.
429.6(c)(1)-(4).......................  429.26.
429.6(d)(1)-(4).......................  429.13(a) and (b).
429.6(e)..............................  429.19; 429.22.
429.6(f)..............................  429.23-429.25.
429.6(g)..............................  Removed. See Preamble.
429.7(a)..............................  429.27-429.30.
429.7(b)..............................  429.6.
429.7(c)..............................  Removed.
429.7(d)..............................  429.28(a)(3).

[[Page 42244]]

 
429.7(e)..............................  429.28(a)(1).
429.7(f)..............................  Removed.
429.8.................................  429.28(a)(2), (3), and (4).
429.9(a)..............................  429.28(a)(1).
429.9(b)..............................  429.28(b).
429.10(a).............................  429.34(a) and (b); 429.35(a),
                                         (b), and (c).
429.10(b).............................  429.36(a) and (b).
429.11................................  Removed.
429.12(a).............................  429.1; 429.3-429.6.
429.12(b).............................  429.4(a).
429.12(c).............................  429.26.
429.12(d).............................  429.4(g).
429.12(e).............................  Removed.
429.13................................  429.1; 429.3.
------------------------------------------------------------------------

VI. Procedural Requirements

1. Regulatory Planning and Review (Executive Order (E.O.) 12866)

    OMB has determined that this rule is not a significant rule and has 
not reviewed this rule under the requirements of E.O. 12866. We have 
evaluated the impacts of this rule as required by E.O. 12866 and have 
determined that it is not a significant regulatory action. The results 
of our evaluation follow:
    (a) This rule will not have an effect of $100 million or more on 
the economy. It would not adversely affect in any material way the 
economy, productivity, competition, jobs, environment, public health or 
safety, or State, local, and tribal governments or communities. The 
original rule covered only Reclamation lands. It was modified in 2006 
to explicitly incorporate uses of Reclamation facilities and 
waterbodies. The proposed rule requires collecting an initial, 
nonrefundable deposit of $100 (referred to as the ``application fee''), 
the recovery of additional administrative costs in excess of the 
initial application fee, and a fee for the use of Reclamation land. It 
should be noted that this rule reduces the initial application fee from 
$200 ($150 refundable under specific circumstances) to a nonrefundable 
$100 application fee. The rule does not change the requirement for full 
cost recovery of additional administrative costs in excess of the $100 
nonrefundable application fee or the requirement to collect the fee for 
use of Reclamation land, facilities, and waterbodies. Like the current 
rule, this rule provides for waivers or reductions of costs and fees 
under unique circumstances as determined to be appropriate by us 
incompliance with OMB Circular A-25.
    (b) This rule would not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. Since this 
rule is specific to Reclamation land, facilities, and waterbodies, any 
impact on another agency would be minimal. Nevertheless, nothing in 
this rule precludes us from cooperating with other agencies on proposed 
actions that may impact or require the use of Reclamation's land, 
facilities, and waterbodies. An example of our working with other 
agencies is this rule's requirement to use Standard Form (SF) 299, 
Application for Transportation and Utility Systems and Facilities on 
Federal Lands, under E.O. 13327. The purpose of E.O. 13327 is to 
promote the efficient and economical use of America's real property 
assets. This proposed rule also requires the use of Form 7-2540, Bureau 
of Reclamation Right-of-Use Application Form, for all other requested 
uses.
    (c) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, concessions, loan programs, water contracts, 
management agreements, or the rights and obligations of their 
recipients.
    (d) This rule does not raise any novel legal or policy issues. The 
recovery of administrative fees and charging of application and use 
fees are required by the IOAA, OMB Circular A-25, and the current rule.

2. Regulatory Flexibility Act

    The Department of the Interior (Interior) certifies that this 
document will not have a significant economic effect on a substantial 
number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601, et seq.). This rule does not impose a requirement for small 
businesses to report or keep records on any of the requirements 
contained in this rule. A small business's wish to apply to use 
Reclamation land, facilities, or waterbodies is strictly voluntary. One 
of the purposes of this rule is to provide small business applicants 
and others with the requirements they must follow when applying for 
such a use. An Initial Regulatory Flexibility Analysis is not required 
and, accordingly, a Small Entity Compliance Guide is not required.

3. Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a major rule under the Small Business 
Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more. There are no major changes in the costs or fees charged to 
applicants.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, local, or tribal 
government agencies, or geographic regions. It is anticipated that this 
rule will not result in significant increases in administrative costs 
or use fees for any one applicant, but it will clarify for the public 
the basis for determining such costs and fees.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based enterprises to compete with foreign-based 
enterprises. The cost to the private sector requesting use of 
Reclamation land, facilities, or waterbodies is a small fraction of a 
percent of an individual entity's total cost of doing business. Under 
this rule, such requests are made on a voluntary basis.

4. Unfunded Mandates Reform Act

    This proposed rule does not impose an unfunded mandate or a 
requirement to expend monies on the part of State, local, or tribal 
governments or communities, or the private sector of $100 million or 
more annually. This rule does not have a significant or unique effect 
on State, local, or tribal governments or communities, or the private 
sector. Requests from any of these entities to use Reclamation land, 
facilities, and waterbodies are strictly voluntary. If a requested use 
is authorized by Reclamation, the recovery of administrative costs and 
the payment of use fees associated with such use are required by law, 
OMB Circular, and regulation. There are provisions to allow a reduction 
or waiver of such costs and fees, at our discretion, when specific 
criteria are met. We are not imposing a duty, requirement, or mandate 
on State, local, or tribal governments or communities, or the private 
sector to request such uses. Thus, a statement containing information 
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is 
not required.

5. Takings (E.O. 12630 and E.O. 13406)

    Under the criteria in E.O. 12630 and E.O. 13406, this proposed rule 
does not have any implications of takings of property rights. This rule 
sets forth the requirements for applying to use Reclamation land, 
facilities, and waterbodies. It also clarifies the basis for charging 
application and use fees, and for the recovery of administrative costs 
under the requirements of the IOAA and OMB Circular A-25. A Takings 
Implication Assessment is not required.

6. Federalism (E.O. 13132)

    Under the criteria in E.O. 13132, the rule does not have any 
federalism implications to warrant the preparation

[[Page 42245]]

of a Federalism Assessment. The rule is not associated with, nor will 
it have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. A 
Federalism Assessment is not required.

7. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of E.O. 12988. 
Specifically, this rule:
    (a) Does not unduly burden the judicial system;
    (b) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (c) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

8. Consultation With Indian Tribes (E.O. 13175)

    Under the criteria of E.O. 13175, Reclamation has evaluated this 
rule and determined that it would have no substantial effects on 
federally recognized Indian Tribes. This rule does not apply to land 
under the sovereign ownership of federally recognized Indian Tribes.

9. Paperwork Reduction Act

    This rule does require information collection from 10 or more 
applicants and a submission under the Paperwork Reduction Act (PRA) is 
required. However, the information collection requirements associated 
with this rule have been previously submitted to OMB for review and 
have received approval under the requirements of the PRA. The SF 299, 
Application for Transportation and Utility Systems and Facilities on 
Federal Lands (used for access across our land, facilities, and 
waterbodies), was authorized by OMB No. 1004-0189, expiring on November 
30, 2008. OMB also has approved the information collection in this rule 
(using the Bureau of Reclamation Right-of-Use Application Form 7-2540) 
and has assigned approval number 1006-0003, expiring on March 31, 2009. 
We estimate the burden associated with this latter information 
collection to be 2 hours per application. We use the information 
provided by applicants to determine the nature of the requested use and 
whether the requested use of our land, facilities, or waterbodies 
interferes with project operations or project security, or may create 
other issues. The information provided on the applications is also used 
to ensure, where appropriate and applicable, the technical and 
financial resources of the applicant are sufficient to complete the 
construction of the infrastructure or project.

10. National Environmental Policy Act of 1969

    This rule does not constitute a major Federal action and would not 
have a significant effect on the quality of the human environment. 
Therefore, this rule does not require the preparation of an 
environmental assessment or environmental impact statement under the 
requirements of the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.), and its regulations.

 11. Information Quality Act

    In developing this rule, there was no need to conduct or use a 
study, experiment, or survey requiring peer review under the 
Information Quality Act (Pub. L. 106-554).

12. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in the E.O. 13211. A Statement of Energy Effects is not required.

13. Clarity of This Regulation

    We are required by E.O. 12866 and 12988, and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means each rule we publish must:

--Be logically organized;
--Use the active voice to address readers directly;
--Use clear language rather than jargon;
--Be divided into short sections and sentences; and
--Use lists and tables wherever possible.

    If you feel we have not met these requirements, please send 
comments to Reclamation as instructed in the ADDRESSES section of this 
proposed rule. Please make your comments as specific as possible, 
referencing specific sections and how they could be improved. For 
example, ``section XXX.XX could be more clearly written'', or ``the 
first sentence in section XXX.XX(a) is too long'', or ``the data in 
section XXX.XX should be placed in a table.''

14. Public Comments

    Before including your name, address, phone number, e-mail address, 
or other personal identifying information in your comment, you should 
be aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.
    Informational meetings regarding the proposed rule are being hosted 
by Reclamation in each Region. The dates, times, and locations of these 
meetings are listed in the SUPPLEMENTARY INFORMATION section of this 
proposed rule. These meetings will be informational in nature only. 
Public comments will not be recorded or accepted into the official 
record at the meetings. In order to be considered, your comments must 
be submitted to Reclamation as instructed in the ADDRESSES section of 
this proposed rule.

List of Subjects in 43 CFR Part 429

    Administrative practice and procedures, Public lands, Reclamation, 
Recreation and recreation areas, and Land rights-of-way.

    Dated: July 14, 2008.
Kameran L. Onley,
Acting Assistant Secretary--Water and Science.
    For the reasons stated in the preamble, the Bureau of Reclamation 
proposes to revise 43 CFR part 429 as follows:

PART 429--USE OF BUREAU OF RECLAMATION LAND, FACILITIES, AND 
WATERBODIES

Subpart A--Purpose, Definitions, and Applicability
Sec.
429.1 What is the purpose of this part?
429.2 What definitions are used in this part?
429.3 What types of uses are subject to the requirements and 
processes established under this part?
429.4 What types of uses are not subject to the requirements and 
processes established under this part?
429.5 Who is authorized to issue use authorizations under this part?
429.6 When must water user organizations also approve use 
authorizations?
Subpart B--Proposed Uses Involving Reclamation Easements
429.7 Can I use land where Reclamation holds an easement?
429.8 Is there a fee for uses involving a Reclamation easement?
Subpart C--Requesting Authorization to Use Reclamation Land, 
Facilities, and Waterbodies
429.9 What should I do before filing an application?
429.10 What application form should I use?
429.11 Where can I get the application forms?
429.12 Where do I file my application?
429.13 How long will the application review process take?

[[Page 42246]]

429.14 What criteria will Reclamation consider when reviewing 
applications?
429.15 Is Reclamation required to issue a use authorization?
Subpart D--Application Fees and Administrative Costs
429.16 How much is the application fee and when should it be paid?
429.17 When will Reclamation collect administrative costs?
429.18 When do I have to pay the administrative costs?
429.19 What happens if the initial estimate for administrative costs 
is insufficient?
429.20 Can I get a detailed explanation of the administrative costs?
429.21 If I overpay Reclamation's administrative costs, can I get a 
refund?
429.22 Can Reclamation charge me additional administrative costs 
after I receive a use authorization?
Subpart E--Use Fees
429.23 How does Reclamation determine use fees?
429.24 When should I pay my use fee?
429.25 How long do I have to submit my payment for the use fee and 
accept the offered use authorization?
Subpart F--Reductions or Waivers of Application Fees, Administrative 
Costs, and Use Fees
429.26 When may Reclamation reduce or waive costs or fees?
Subpart G--Terms and Conditions of Use Authorizations
429.27 What general information appears in use authorizations?
429.28 What terms and conditions apply to all use authorizations?
429.29 What other terms and conditions may be included in my use 
authorization?
429.30 May use authorizations be transferred or assigned to others?
Subpart H--Prohibited and Unauthorized Uses of Reclamation Land, 
Facilities, and Waterbodies
429.31 What uses are prohibited on Reclamation land, facilities, and 
waterbodies?
429.32 How will Reclamation address currently authorized existing 
private exclusive recreational or residential uses?
429.33 What are the consequences for using Reclamation land, 
facilities, and waterbodies without authorization?
Subpart I--Decisions and Appeals
429.34 Who is the decisionmaker for Reclamation's final 
determinations?
429.35 May I appeal Reclamation's final determination?
429.36 May I appeal the Commissioner's decision?
429.37 Does interest accrue on monies owed to the United States 
during my appeal process?

    Authority: 43 U.S.C. 373; 43 U.S.C. 373b, 43 U.S.C. 387; 43 CFR 
21; Pub. Law 108-447, Title VIII; 31 U.S.C. 9701, as amended.

Subpart A--Purpose, Definitions, and Applicability


Sec.  429.1  What is the purpose of this part?

    The purpose of this part is to notify the public that any 
possession or occupancy of any portion of, and the extraction or 
disturbance of any natural resources from Reclamation land, facilities, 
or waterbodies are prohibited without written authorization from 
Reclamation, unless excepted as listed in Sec.  429.4. This part 
describes:
    (a) How to apply to Reclamation for a use authorization to allow 
your activity on Reclamation land, facilities, and waterbodies;
    (b) How Reclamation reviews and processes your application, 
including the criteria for approval or denial of your application;
    (c) The requirement for collection of application and use fees and 
the recovery of administrative costs;
    (d) How Reclamation determines and collects costs and fees;
    (e) Prohibited uses on Reclamation land, facilities, and 
waterbodies;
    (f) How Reclamation will address existing authorized uses which are 
otherwise prohibited, including the criteria for approval or denial of 
requests to renew these use authorizations;
    (g) The process and penalties associated with resolution of 
unauthorized uses; and
    (h) How to appeal an action or determination made under this part.


Sec.  429.2  What definitions are used in this part?

    The following definitions are used in this part:
    Administrative costs means all costs incurred by Reclamation in 
processing your application and all costs associated with evaluating, 
issuing, monitoring, and terminating your use authorization on 
Reclamation land, facilities, and waterbodies. Administrative costs are 
distinct and separate from application and use fees and typically 
include, but are not limited to:
    (1) Determining the use fee;
    (2) Evaluating and documenting environmental and cultural resources 
compliance;
    (3) Performing engineering review;
    (4) Preparation of the use authorization; and
    (5) Personnel and indirect costs directly associated with these 
actions.
    Applicant means you as any person or entity (such as a private 
citizen, business, non-governmental organization, public entity, Indian 
tribe, or foreign government) who submits an application requesting use 
of Reclamation land, facilities, and waterbodies.
    Application means either Form 7-2540 or SF 299. The choice of 
application form is dependent on the type of use requested.
    Application fee means a $100 nonrefundable charge, which you must 
submit with your application to cover the costs of our initial review 
of your request. Application fees are distinct and separate from 
administrative costs and use fees.
    Commissioner means the senior executive of the Bureau of 
Reclamation, Department of the Interior.
    Consent document means a written agreement or notification listing 
conditions which will prevent unreasonable interference with our 
easement on non-Reclamation land.
    Cultural resource means any prehistoric, historic, architectural, 
sacred, or traditional cultural property and associated objects and 
documents that are of interest to archaeology, anthropology, history, 
or other associated disciplines. Cultural resources include 
archaeological resources, historic properties, traditional cultural 
properties, sacred sites, and cultural landscapes that are associated 
with human activity or occupation.
    Easement refers to an interest in land that consists of the right 
to use or control the land for a specific purpose, but does not 
constitute full ownership of the land.
    Environmental compliance means complying with the requirements of 
the National Environmental Policy Act; the Endangered Species Act; the 
Clean Water Act; the Clean Air Act; the Comprehensive Environmental 
Response, Compensation, and Liability Act; applicable regulations 
associated with these statutes; and other related laws and regulations.
    Form 7-2540 means the Bureau of Reclamation Right-of-Use 
Application form required for all proposed uses of Reclamation land, 
facilities, and waterbodies, except those associated with construction 
and/or placement of transportation, communication, and utility systems 
and facilities.
    Grantee means you as the recipient or holder of a use authorization 
regardless of the contractual format.
    Interior means the United States Department of the Interior.
    Managing Partner means a Federal or non-Federal public entity that 
manages land, facilities, or waterbodies through a management agreement 
with Reclamation entered pursuant to the Federal Water Project 
Recreation Act, as amended.

[[Page 42247]]

    Part 21 of this title means Title 43 of the Code of Federal 
Regulations part 21, which is titled Occupancy of Cabin Sites on Public 
Conservation and Recreation Areas.
    Part 423 of this chapter means Title 43 of the Code of Federal 
Regulations part 423, which is titled Public Conduct on Bureau of 
Reclamation Facilities, Lands, and Waterbodies.
    Possession or occupancy and possess or occupy mean to control, use, 
or reside on Reclamation land, facilities, or waterbodies.
    Private exclusive recreational or residential use means any use 
that involves structures or other improvements used for recreational or 
residential purposes to the exclusion of public uses or which create 
the perception of such exclusion and are not associated with the 
official management of a Reclamation project. This includes, but is not 
limited to, boat docks, cabin sites and associated improvements 
(including those currently defined in part 21 of this title), 
residences, trailers, manufactured or mobile homes, structures, roads, 
or other improvements as determined by Reclamation.
    Public Entity means States, political subdivisions or agencies 
thereof; public and quasi-governmental authorities and agencies; and 
agencies of the Federal Government.
    Public needs mean the recreational requirements of the general 
public at areas where existing authorized private exclusive 
recreational or residential uses are present.
    Reclamation means the Bureau of Reclamation, United States 
Department of the Interior.
    Reclamation facility means any facility under our jurisdiction. The 
term includes, but is not limited to: Buildings, canals, dams, ditches, 
drains, fish and wildlife facilities, laterals, powerplants, pumping 
plants, recreation facilities, roads, switchyards, transmission and 
telecommunication lines, and warehouses.
    Reclamation land means any land under the jurisdiction of, or 
administered by, Reclamation and may include, but is not limited to:
    (1) All land acquired by Reclamation through purchase, 
condemnation, exchange, or donation for Reclamation project and water 
related purposes;
    (2) All land withdrawn by Reclamation from the public domain for 
Reclamation purposes; and
    (3) All interests in land acquired by Reclamation, including 
easements and rights exercised by the United States under the 1890 
Canal Act (43 U.S.C. 945).
    Reclamation law means the Reclamation Act of June 17, 1902 (32 
Stat. 388, 43 U.S.C. 371, et seq.), and all Acts which supplement or 
amend the 1902 Act.
    Reclamation project means any land, facilities, or waterbodies used 
for water supply, water delivery, flood control, hydropower, or other 
authorized purposes including fish, wildlife, and recreation 
administered by Reclamation under Federal laws.
    Reclamation waterbodies means any body of water situated on 
Reclamation land and under Reclamation jurisdiction. Examples of 
Reclamation waterbodies include, but are not limited to, reservoirs, 
lakes, and impoundments.
    Regional Director means any one of the five representatives of the 
Commissioner, or their delegates, who are responsible for managing 
their respective region's land, facilities, and waterbodies and for the 
decisions made under this part.
    Standard Form (SF) 299 means the form titled Application for 
Transportation and Utility Systems and Facilities on Federal Lands used 
when requesting permission for construction and/or placement of 
transportation, communication, or utility systems and facilities.
    Unauthorized use means use of Reclamation land, facilities, and 
waterbodies without proper authorization.
    Use authorization means a document that defines the terms and 
conditions under which we will allow you to use Reclamation land, 
facilities, and waterbodies. Use authorizations can take the form of 
easements, leases, licenses, permits, and consent documents. This 
document is also referred to as a ``right-of-use'' in part 423 of this 
chapter.
    Use fee means the amount due to Reclamation for the use of Federal 
land, facilities, or waterbodies under our jurisdiction or control. Use 
fees are distinct and separate from application fees and administrative 
costs.
    Valuation means the method used to establish the fee for a use 
authorization by appraisal, waiver valuation, or other sound or 
generally accepted business practice.
    Water User Organization means any legal entity established under 
State law that has entered into a contract with the United States 
pursuant to the Federal reclamation laws.
    We, us, or our mean the Bureau of Reclamation.
    You or I mean an applicant, grantee, or unauthorized user.


Sec.  429.3  What types of uses are subject to the requirements and 
processes established under this part?

    Possession or occupancy of, or extraction or removal of natural 
resources from, Reclamation land, facilities, or waterbodies require a 
use authorization in accordance with this part. Typical uses of or 
activities on Reclamation land, facilities, or waterbodies regulated by 
this part include, but are not limited to:
    (a) Commercial filming and photography;
    (b) Commercial guiding and outfitting;
    (c) Commercial or organized sporting events;
    (d) Grazing, farming, and other agricultural uses;
    (e) Infrastructure, such as transportation, telecommunications, 
utilities, and pipelines;
    (f) Organized recreational activities, public gatherings, and other 
special events that involve the possession or occupancy of Reclamation 
lands;
    (g) Removal of, or exploration for, sand, gravel, and other mineral 
resources;
    (h) Timber harvesting, or removal of commercial forest products or 
other vegetative resources; and
    (i) Any other uses deemed appropriate by Reclamation, subject to 
the exclusions listed in Sec.  429.4.


Sec.  429.4  What types of uses are not subject to the requirements and 
processes established under this part?

    (a) Individual, non-commercial use of Reclamation land, facilities, 
or waterbodies for occasional activities such as hiking, camping for 
periods of 14 days or less during any period of 30 consecutive days, 
sightseeing, picnicking, hunting, swimming, boating, and fishing, 
consistent with applicable laws, regulations and policies. Public 
conduct associated with these activities is governed by part 423 of 
this chapter;
    (b) While not subject to other requirements and processes 
established under this part, the following types of uses must be in 
compliance with the requirements in Subpart H:
    (1) Recreational activities at sites managed by non-Federal 
managing partners under Public Law 89-72, titled Federal Water Project 
Recreation Act, July 9, 1965;
    (2) Activities managed by other Federal agencies or Interior 
bureaus by agreement or under other authority;
    (3) Activities at sites directly managed by Reclamation where fees 
or fee schedules are established for general public recreation use;
    (4) Uses authorized under concession contracts on Reclamation land, 
facilities, and waterbodies;

[[Page 42248]]

    (5) Reclamation contracts for water supply or water operations;
    (6) Authorized operation and maintenance activities on Reclamation 
land, facilities, and waterbodies undertaken by water user 
organizations, or their contractors, or by Reclamation contractors;
    (7) Agreements and real property interests granted for the 
replacement or relocation of facilities, such as highways, railroads, 
telecommunication, or transmission lines or infrastructure governed by 
Section 14 of the Reclamation Project Act of August 4, 1939 (43 U.S.C. 
389). Payments to equalize land values may still be required and 
administrative costs may still be recovered; and
    (8) Activities specifically authorized under other Federal statutes 
or regulations.


Sec.  429.5  Who is authorized to issue use authorizations under this 
part?

    Unless otherwise provided by law or regulation, only Reclamation or 
another Federal agency acting for Reclamation under delegated authority 
is authorized to issue use authorizations that convey an interest in 
Reclamation land, facilities, or waterbodies. Recreation managing 
partners under the Federal Water Projects Recreation Act, 16 U.S.C. 
4601, et seq., and water user organizations who have assumed 
responsibility for operation and maintenance of Reclamation land, 
facilities, or waterbodies pursuant to a contract with Reclamation may 
issue limited use authorizations to third parties for activities on 
Reclamation land, facilities, or waterbodies when all of the following 
apply:
    (a) The recreation managing partner or water user organization is 
authorized to do so under its contract with Reclamation;
    (b) Such limited use authorizations do not convey ownership or 
other interest in the Federal real property;
    (c) The uses authorized are not permanent or for an indefinite 
period;
    (d) The limited use authorization does not provide for an automatic 
right of renewal at the third party's option;
    (e) The limited use authorization is fully revocable at the 
discretion of Reclamation; and
    (f) All revenues collected for the use of Reclamation land, 
facilities, and waterbodies are handled in compliance with all 
statutory, regulatory, and policy requirements.


Sec.  429.6  When must water user organizations also approve use 
authorizations?

    (a) Use authorizations for easements and rights-of way for periods 
in excess of 25 years are also subject to approval from water user 
organizations under contract obligation for repayment of the project or 
division and for those water user organizations who have assumed 
responsibility for operation and maintenance. This requirement does not 
apply to any other type of use authorizations.
    (b) At the discretion of the responsible Regional Director, 
concurrence for uses of less than 25 years may be requested of the 
appropriate water user organization. At a minimum, the appropriate 
water user organizations will be notified of all use authorizations 
prior to their issuance to avoid potential conflicts between the 
requested use authorization and the water user organizations' need to 
operate and maintain the facilities for which they have contractual 
responsibility.

Subpart B--Proposed Uses Involving Reclamation Easements


Sec.  429.7  Can I use land where Reclamation holds an easement?

    (a) To prevent conflicts where Reclamation holds an easement on 
land owned by others, you should submit an application for the proposed 
use. If after review of the application, Reclamation determines that 
your requested use would not unreasonably interfere with Reclamation's 
easement, a consent document may be issued to you. The consent document 
will contain the conditions with which you must comply to ensure that 
your use will not unreasonably interfere with Reclamation's use of its 
easement.
    (b) In accordance with subpart C of this part, you should submit 
either SF 299 or Form 7-2540 to the local Reclamation office to request 
a consent document.
    (c) If you are not the underlying landowner, you must also secure 
the permission of the landowner for your requested use of the area 
covered by Reclamation's easement.


Sec.  429.8  Is there a fee for uses involving a Reclamation easement?

    Reclamation will not charge a use fee for a consent document. 
However, depending upon the complexity of your requested use and issues 
associated with it, Reclamation may charge an application fee and 
administrative costs, unless waived in accordance with subpart F of 
this part.

Subpart C--Requesting Authorization to Use Reclamation Land, 
Facilities, and Waterbodies


Sec.  429.9  What should I do before filing an application?

    Before filing an application, it is important that you contact the 
local Reclamation office to discuss your proposed use. This discussion 
can help expedite your application process.


Sec.  429.10  What application form should I use?

    You must use one of the following application forms depending on 
the nature of your requested use:
    (a) Use SF 299 to request a use authorization for the placement, 
construction, and use of energy, transportation, water, or 
telecommunication systems and facilities on or across all Federal 
property including Reclamation land, facilities, or waterbodies. 
Examples of such uses are:
    (1) Canals;
    (2) Communication towers;
    (3) Fiber-optics cable;
    (4) Pipelines;
    (5) Roads;
    (6) Telephone lines; and
    (7) Utilities and utility corridors.
    (b) Use Form 7-2540 to request any other type of use authorization. 
Examples of such uses are:
    (1) Commercial filming and photography;
    (2) Commercial guiding and outfitting;
    (3) Commercial or organized sporting events;
    (4) Grazing, farming, and other agricultural uses;
    (5) Organized recreational activities, public gatherings, and other 
special events;
    (6) Removal of, or exploration for, sand, gravel, and other mineral 
materials;
    (7) Timber harvesting, or removal of commercial forest products or 
other vegetative resources; and
    (8) Any other uses deemed appropriate by Reclamation.
    (c) Application forms may not be required where Reclamation 
solicits competitive bids.


Sec.  429.11  Where can I get the application forms?

    Both forms can be obtained from any Reclamation office or from our 
official internet Web site at http://www.usbr.gov. These forms contain 
specific instructions for application submission and describe 
information that you must furnish. However, when you submit either form 
to your local Reclamation office for review, the form

[[Page 42249]]

must contain your original signature as the applicant.


Sec.  429.12  Where do I file my application?

    File your completed and signed application, including the $100 
nonrefundable application fee, with the Reclamation office having 
jurisdiction over the land, facility, or waterbody associated with your 
request. Reclamation office locations may be found on http://www.usbr.gov, the official Reclamation internet Web site.


Sec.  429.13  How long will the application review process take?

    (a) Reclamation will acknowledge in writing your completed and 
signed application and application fee within 30 calendar days of 
receipt. Reclamation may request additional information needed to 
process your application, such as legal land descriptions and detailed 
construction specifications.
    (b) The processing time depends upon the complexity of your 
requested use, issues associated with it, and the need for additional 
information from you.
    (c) Should your requested use be denied at any time during the 
review process, Reclamation will notify you in writing of the basis for 
the denial.


Sec.  429.14  What criteria will Reclamation consider when reviewing 
applications?

    Reclamation will consider the following criteria when reviewing 
applications:
    (a) Compatibility with authorized project purposes, project 
operations, safety, and security;
    (b) Environmental compliance;
    (c) Compatibility with public interests;
    (d) Conflicts with Federal policies and initiatives;
    (e) Public health and safety;
    (f) Availability of other reasonable alternatives; and
    (g) Best interests of the United States


Sec.  429.15  Is Reclamation required to issue a use authorization?

    No. The issuance of a use authorization is at Reclamation's 
discretion. At a minimum, the criteria listed at Sec.  429.14 must be 
considered prior to issuance of any use authorizations. Not all 
requests will be authorized. If issued, Reclamation will provide only 
the least estate, right, or possessory interest needed to accommodate 
the approved use.

Subpart D--Application Fees and Administrative Costs


Sec.  429.16  How much is the application fee and when should it be 
paid?

    You must remit a nonrefundable application fee of $100 to cover 
costs associated with our initial review of your application, unless 
the payment is waived pursuant to subpart F of this part. This initial 
review will determine if your requested use is appropriate for 
consideration and not likely to interfere with Reclamation project 
purposes or operations.


Sec.  429.17  When will Reclamation collect administrative costs?

    Reclamation will collect, in advance, its administrative costs for 
processing your application, except as provided under subpart F of this 
part.


Sec.  429.18  When do I have to pay the administrative costs?

    (a) Following the initial review, you will be notified in writing 
whether your application appears to be appropriate for further 
processing. At that time, Reclamation will give you an initial estimate 
of administrative costs required to continue processing your 
application.
    (b) You must pay these initial, estimated administrative costs 
before Reclamation can continue to process your application, unless you 
are granted a waiver of administrative costs under subpart F of this 
part. If payment is not received within 90 days after the estimate is 
provided to you, Reclamation may close your file. If this occurs and 
you later wish to proceed, you must submit both a new application and 
another $100 nonrefundable application fee.


Sec.  429.19  What happens if the initial estimate for administrative 
costs is insufficient?

    If the initial estimate to cover Reclamation's administrative costs 
is found to be insufficient, Reclamation will notify you in writing of 
the additional amount needed. You must pay the amount requested before 
Reclamation will continue processing your application.


Sec.  429.20  Can I get a detailed explanation of the administrative 
costs?

    Yes, you are entitled to receive an explanation of all 
administrative costs relevant to your specific application. You must 
request this information in writing from the Reclamation office where 
you submitted your application.


Sec.  429.21  If I overpay Reclamation's administrative costs, can I 
get a refund?

    If, in reviewing your application, Reclamation uses all the monies 
you have paid, you will not receive a refund regardless of whether you 
receive a use authorization. If the money collected from you exceeds 
administrative costs, a refund of the excess amount will be made to you 
consistent with Reclamation's financial policies.


Sec.  429.22  Can Reclamation charge me additional administrative costs 
after I receive a use authorization?

    (a) After you receive your use authorization, Reclamation may 
charge you for additional administrative costs incurred for activities 
such as:
    (1) Monitoring your authorized use over time to ensure compliance 
with the terms and conditions of your use authorization; and
    (2) Periodic analysis of your long-term use to adjust your use fee 
to reflect current conditions.
    (b) If your additional payment is not received by Reclamation 
within 90 days after notification to you in writing of the additional 
administrative costs, Reclamation may take action to terminate your use 
authorization.

Subpart E--Use Fees


Sec.  429.23  How does Reclamation determine use fees?

    The use fee is based on a valuation or by competitive bidding. Use 
fees may be adjusted as deemed appropriate by Reclamation to reflect 
current conditions, as provided in the use authorization.


Sec.  429.24  When should I pay my use fee?

    (a) If Reclamation offers you a use authorization, you must pay the 
use fee in advance, unless you are granted a waiver under subpart F of 
this part.
    (b) Your use authorization will clearly state the use fee. Should 
periodic payments apply, your use authorization will also describe when 
you should pay those periodic use fees.


Sec.  429.25  How long do I have to submit my payment for the use fee 
and accept the offered use authorization?

    You have 90 days to accept and return the use authorization and 
required fees, otherwise Reclamation may consider the offer to be 
rejected by you and your file may be closed. If this occurs and you 
later wish to proceed, you must submit a new application and another 
$100 nonrefundable application fee. You may not commence your use of 
Reclamation's land, facilities, or waterbodies until Reclamation has 
issued a use authorization to you. A use authorization will only be 
issued upon receipt by Reclamation of all required costs and fees, and 
the use authorization signed by you.

[[Page 42250]]

Subpart F--Reductions or Waivers of Application Fees, 
Administrative Costs, and Use Fees


Sec.  429.26  When may Reclamation reduce or waive costs or fees?

    (a) As determined appropriate by Reclamation and approved and 
documented by the applicable Regional Director, Reclamation may waive 
the application fee, or waive or reduce charges for administrative 
costs or the use fee as indicated by a [check] in the following table:

----------------------------------------------------------------------------------------------------------------
   Situations where costs and fees may be reduced or                          Administrative
                         waived                           Application fee         costs             Use fee
----------------------------------------------------------------------------------------------------------------
(1) The use is a courtesy to a foreign government or if           [check]            [check]            [check]
 comparable fees are set on a reciprocal basis with a
 foreign government....................................
(2) The use is so minor or short term that the cost of            [check]            [check]            [check]
 collecting fees is equal to or greater than the value
 of the use............................................
(3) The use will benefit the general public with no               [check]            [check]            [check]
 specific entity or group of beneficiaries readily
 identifiable..........................................
(4) Applicant is a public entity or Indian tribe.......           [check]            [check]            [check]
(5) Applicant is a non-profit or educational entity and           [check]            [check]            [check]
 the use provides a general public benefit.............
(6) Applicant is a rural electric association or                  [check]            [check]            [check]
 municipal utility or cooperative......................
(7) The use directly supports United States' programs             [check]            [check]            [check]
 or projects...........................................
(8) The use secures a reciprocal land use of equal or             [check]            [check]            [check]
 greater value to the United States....................
(9) Applicant for a consent document is the underlying            [check]            [check]              (\1\)
 owner of the property subject to Reclamation's
 easement..............................................
(10) The use is issued under competitive bidding.......           [check]            [check]              (\2\)
----------------------------------------------------------------------------------------------------------------
\1\ Not Applicable.
\2\ Set by Bid.

    (b) When a statute, executive order, or court order authorizes the 
use and requires specific treatment of administrative cost recovery and 
collection of use fees associated with that use, that requirement will 
be followed by Reclamation.

Subpart G--Terms and Conditions of Use Authorizations


Sec.  429.27  What general information appears in use authorizations?

    Each use authorization will contain:
    (a) An adequate description of the land, facilities, or waterbodies 
where the use will occur;
    (b) A description of the specific use being authorized together 
with applicable restrictions or conditions that must be adhered to;
    (c) The conditions under which the use authorization may be 
renewed, terminated, amended, assigned or transferred, and/or have the 
use fee adjusted; and
    (d) Primary points of contact and other terms and conditions.


Sec.  429.28  What terms and conditions apply to all use 
authorizations?

    (a) By accepting a use authorization under this part, you agree to 
comply with and be bound by the following terms and conditions during 
all construction, operation, maintenance, use, and termination 
activities:
    (1) The grantee agrees to indemnify the United States for, and hold 
the United States and all of its representatives harmless from, all 
damages resulting from suits, actions, or claims of any character 
brought on account of any injury to any person or property arising out 
of any act, omission, neglect, or misconduct in the manner or method of 
performing any construction, care, operation, maintenance, supervision, 
examination, inspection, or other activities of the grantee.
    (2) The United States, acting through Reclamation, Department of 
the Interior, reserves rights to construct, operate, and maintain 
public works now or hereafter authorized by the Congress without 
liability for severance or other damage to the grantee's activities or 
facilities.
    (3) Reclamation may, at any time and at no cost or liability to the 
United States, unilaterally terminate the use authorization if 
Reclamation determines that:
    (i) The use has become incompatible with authorized project 
purposes or a higher public use is identified;
    (ii) Termination is necessary for operational needs of the project; 
or
    (iii) There has been a natural disaster, a national emergency, a 
need arising from security requirements, or an immediate and overriding 
threat to the public health and safety.
    (4) Reclamation may, at any time and at no cost or liability to the 
United States, unilaterally terminate any use authorization if 
Reclamation determines that the grantee has failed to use the use 
authorization for its intended purpose. Further, failure to construct 
or use for any continuous 2-year period may constitute a presumption of 
abandonment of the requested use and cause termination of the use 
authorization.
    (5) Reclamation may, at any time and at no cost or liability to the 
United States, unilaterally terminate any use authorization if the 
grantee fails to comply with all applicable Federal, State, and local 
laws, regulations, ordinances, or terms and conditions of any use 
authorization, or to obtain any required permits or authorizations
    (b) The Regional Director may, upon advice of the Solicitor, modify 
these terms and conditions with respect to the contents of the use 
authorization to meet local and special conditions.


Sec.  429.29  What other terms and conditions may be included in my use 
authorization?

    Reclamation may include additional terms, conditions, or 
requirements that address environmental law compliance, the protection 
of cultural and natural resources, other interests of the United 
States, and local laws and regulations.


Sec.  429.30  May use authorizations be transferred or assigned to 
others?

    Your use authorization may not be transferred or assigned to others 
without prior written approval of Reclamation, unless specifically 
provided for in your use authorization. Should you wish to transfer or 
assign your use authorization to another individual or entity, you

[[Page 42251]]

must contact the Reclamation office that issued your use authorization 
prior to taking such action.

Subpart H--Prohibited and Unauthorized Uses of Reclamation Land, 
Facilities, and Waterbodies


Sec.  429.31  What uses are prohibited on Reclamation land, facilities, 
and waterbodies?

    (a) Reclamation prohibits any use that would not comply with part 
423 of this chapter.
    (b) Reclamation prohibits any use that would result in new private 
exclusive recreational or residential use of Reclamation land, 
facilities, or waterbodies.
    (1) Examples include, but are not limited to, the following:
    (i) Cabins, mobile homes, residences, outbuildings, and related 
structures, and associated landscaping, patios, decks, and porches;
    (ii) Boat houses, docks, moorings, piers, and launch ramps;
    (iii) Floating structures or buildings, including moored vessels 
used as residences or unauthorized business sites;
    (iv) Sites for such activities as hunting, fishing, camping, and 
picnicking (other than transitory uses allowed under part 423 of this 
chapter) that attempt to exclude general public access; and
    (v) Access to private land, facilities, or structures when other 
reasonable alternative access is available or can be obtained.
    (2) Buildings and structures used by concessionaires or managing 
partners to facilitate their operations or that are made available by 
them for the general, non-exclusive use of the public are not 
prohibited. Examples include, but are not limited to the following:
    (i) Boat docks available for short-term use by the public;
    (ii) Marina slips available for rent by the public;
    (iii) Publicly available boat ramps;
    (iv) Houseboats available for short-term rent by the public;
    (v) Stores and restaurants;
    (vi) Employee housing; and
    (vii) Rental cabins, hotels, campgrounds, and other short-term 
lodging facilities.


Sec.  429.32  How will Reclamation address currently authorized 
existing private exclusive recreational or residential uses?

    (a) The administration and potential renewal of use authorizations, 
existing as of January 1, 2008, for private exclusive recreational or 
residential uses of Reclamation land, facilities, and waterbodies, as 
defined in this part, will be administered in accordance with the 
following requirements. Renewal requests may only be approved when all 
criteria are met.
    (1) Compatibility with authorized project purposes, project 
operations, safety, and security;
    (2) Compatibility with public needs;
    (3) Environmental compliance;
    (4) Public health and safety; and
    (5) Current in financial obligations to Reclamation.
    (b) Reclamation will review all existing private exclusive 
recreational or residential uses for compliance with the required 
criteria at least once every 5 years. Reclamation will provide the 
holder of the use authorization with a written report of the results of 
the compliance review. The report will state whether the existing use 
meets the required criteria listed in this section and will list any 
deficiencies that can be corrected. A minimum of 90 days will be 
provided to make corrections identified in the report. Failure to 
correct the deficiencies within the time provided in the report will 
result in termination of the use authorization.
    (c) A determination by Reclamation that existing private exclusive 
recreational or residential uses are not compatible with public needs, 
made under paragraph (a)(2) of this section, will only be finalized 
through a public process involving one or more public meetings. 
Examples of such public processes include resource management plan 
development, recreation demand analysis studies, and project 
feasibility studies. Determinations that existing private exclusive 
recreational or residential uses are not compatible with public needs 
will be published in the Federal Register. If a determination of 
incompatibility with public needs is made, affected use authorizations 
may be extended up to 5 years from the date of publication in the 
Federal Register if the Regional Director determines that such 
extension is necessary to the fair and efficient administration of this 
part.
    (d) In addition to the periodic reviews described above, 
Reclamation will review the existing private exclusive recreational or 
residential uses for compliance with the required criteria at least 6 
months prior to the expiration date of the existing use authorization. 
Reclamation will provide the holder of the use authorization with a 
written report of the results of the compliance review results. The 
report will state whether the existing use meets the required criteria 
under this section as applicable and will list any deficiencies that 
must be corrected prior to a renewal of the use authorization. A 
minimum of 90 days will be provided prior to the expiration of the 
permit to make corrections identified in the report.
    (e) Any renewal of use authorizations for existing private 
exclusive recreational or residential uses of Reclamation land, 
facilities, and waterbodies will not exceed 20 year terms. Any such 
renewals will be subject to the periodic reviews described in 
subsection (b), and these reviews could potentially result in the 
termination of the use agreement prior to the end of the term of years.
    (f) Upon non-renewal or termination of a use authorization for an 
existing private exclusive recreational or residential use of 
Reclamation land, facilities, and waterbodies, the grantee will remove 
any improvements from the site within 90 days from the date of 
termination or non-renewal of the use authorization. The grantee will 
return the property as near as possible to its original undisturbed 
condition. Any property not removed within 90 days may be removed by 
Reclamation at the expense of the prior grantee.
    (g) Renewal decisions of use authorizations for existing private 
exclusive recreational or residential uses located on Reclamation land, 
facilities, and waterbodies will be made by the Regional Director.
    (h) Requests for the renewal, transfer, extension, or reissuance of 
use authorizations for private exclusive recreational or residential 
uses that expired prior to the effective date of this part or are 
subsequently not renewed or terminated under the procedures of this 
section will be considered requests for uses prohibited under Sec.  
429.31 and will not be approved. Conversely, requests for the renewal, 
transfer, extension, or reissuance of use authorizations for private 
exclusive recreational or residential uses that were in existence on 
the effective date of these regulations and that are in compliance with 
all requirements of the applicable use authorization at the time a 
request is made will not be considered requests for uses prohibited 
under Sec.  429.31, with transfers and assignments of such use 
authorizations being subject to the requirements of Sec.  429.30.
    (i) Unauthorized existing private exclusive recreational or 
residential uses will be administered under Sec. Sec.  429.31 and 
429.33 and part 423 of this chapter.


Sec.  429.33  What are the consequences for using Reclamation land, 
facilities, and waterbodies without authorization?

    (a) Unauthorized use of Reclamation land, facilities, or 
waterbodies is a trespass against the United States. You may be subject 
to legal action including

[[Page 42252]]

criminal prosecution if your actions violate part 423 of this chapter. 
A criminal conviction could result in a fine and/or imprisonment for up 
to 6 months in accordance with 43 U.S.C. 373b(b).
    (b) Reclamation may seek to collect the following:
    (1) All administrative costs incurred by Reclamation in resolving 
the unauthorized use;
    (2) All costs of removing structures, materials, improvements, or 
any other real or personal property;
    (3) All costs of rehabilitation of the land, facilities, or 
waterbodies as required by Reclamation.
    (4) The use fee that would have applied had your use been 
authorized from the date your unauthorized use began;
    (5) Interest accrued on the use fee from the date your unauthorized 
use began as specified in paragraph (b)(4) of this section; and
    (6) The interest charge rate shall be the greater of either the 
rate prescribed quarterly in the Federal Register by the Department of 
the Treasury for application to overdue payments or the interest rate 
of 0.5 percent per month. The interest charge rate will be determined 
as of the due date and remain fixed for the duration of the delinquent 
period.
    (c) As an unauthorized user, you will receive a written notice in 
which Reclamation will outline the steps you need to perform to cease 
your unauthorized use.
    (d) If appropriate, you will receive a final determination letter 
detailing the applicable costs and fees, as set forth under paragraph 
(b) of this section, which must be paid to Reclamation for your 
unauthorized use. Payment must be made within 30 days of receipt of 
this letter unless Reclamation extends this deadline in writing. 
Failure to make timely payment may result in administrative or legal 
action being taken against you.
    (e) Reclamation may determine that issuing a use authorization to 
you for an existing unauthorized use is not appropriate; and may deny 
future use applications by you because of this behavior. As noted at 
Sec.  429.15, use authorizations are always issued at Reclamation's 
discretion.
    (f) If, however, your unauthorized use is deemed by Reclamation to 
be an unintentional mistake, consideration may be given to issuing a 
use authorization provided that you qualify and meet the criteria at 
Sec.  429.14; and, in addition to the normal costs, you agree to pay 
the following:
    (1) The use fee that would have been owed from the date your 
unauthorized use began; and
    (2) Interest accrued on the use fee from the date your unauthorized 
use began as specified in paragraph (f)(1) of this section.
    (g) Under no circumstances will your unauthorized use or payment of 
monies to the United States in association with an unauthorized use 
either:
    (1) Create any legal interest or color of title against the United 
States; or
    (2) Establish any right or preference to continue the unauthorized 
use.

Subpart I--Decisions and Appeals


Sec.  429.34  Who is the decisionmaker for Reclamation's final 
determinations?

    (a) The appropriate Reclamation Regional Director, or the Regional 
Director's designee, makes any final determinations associated with 
actions taken under this rule and will send that final determination in 
writing to you by mail.
    (b) The Regional Director's final determination will take effect 
upon the date of the determination letter.


Sec.  429.35  May I appeal Reclamation's final determination?

    (a) Yes, if you are directly affected by such a determination, you 
may appeal in writing to the Commissioner within 30 calendar days after 
the date of the Regional Director's determination letter.
    (b) You have an additional 30 calendar days after the postmark of 
your written appeal to the Commissioner within which to submit any 
additional supporting information.
    (c) The Regional Director's determination will remain in effect 
until the Commissioner has reviewed your appeal and provided you with 
that decision, unless you specifically request a stay and a stay is 
granted by the Commissioner.


Sec.  429.36  May I appeal the Commissioner's decision?

    (a) Yes, you may appeal the Commissioner's decision by writing to 
the Director, Office of Hearing and Appeals (OHA), U.S. Department of 
the Interior, 801 North Quincy Street, Arlington, Virginia 22203.
    (b) For an appeal to be timely, OHA must receive your appeal within 
30 calendar days from the date of the Commissioner's decision. Rules 
that govern appeals to the OHA are found at part 4, subpart G, of this 
title.


Sec.  429.37  Does interest accrue on monies owed to the United States 
during my appeal process?

    Interest on any nonpayment or underpayment, as provided in Sec.  
429.33(b), continues to accrue during an appeal of a Regional 
Director's final determination, an appeal of the Commissioner's 
decision to OHA, or during judicial review of final agency action.

 [FR Doc. E8-16496 Filed 7-17-08; 8:45 am]
BILLING CODE 4310-MN-P