[Federal Register Volume 88, Number 189 (Monday, October 2, 2023)]
[Proposed Rules]
[Pages 67694-67697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21564]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 214 and 251

RIN 0596-AD56


Special Uses; Land Use Fees; Temporary Land Use Fee Reductions 
for Recreation Residence Permits

AGENCY: Forest Service, Agriculture (USDA).

ACTION: Proposed rule; request for public comment.

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SUMMARY: The Forest Service (Forest Service or Agency), United States 
Department of Agriculture, is proposing to update its special uses 
regulations, consistent with the requirement in the Cabin Fee Act, to 
provide for suspension or temporary reduction of the land use fee for a 
recreation residence permit if access to, or occupancy of, the 
recreation residence is significantly restricted.

DATES: Comments on the proposed rule must be received in writing by 
December 1, 2023.

ADDRESSES: Comments, identified by RIN 0596-AD56, may be submitted via 
one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for sending comments.
     Mail: Director, Lands Staff, 201 14th Street SW, 
Washington, DC 20250-1124.
     Hand Delivery: Director, Lands, Minerals, and Geology 
Management Staff, 1st Floor Southeast, 201 14th Street SW, Washington, 
DC 20250-1124.
    Comments should be confined to issues pertinent to the proposed 
rule; should explain the reasons for any recommended changes; and 
should reference the specific section and wording being addressed, 
where possible. All timely comments, including names and addresses when 
provided, will be placed in the record and will be available for public 
review and copying. The public may review comments at the Office of the 
Director, Lands, Minerals, and Geology Management Staff, Sidney R. 
Yates Federal Building, 1st Floor Southeast, 201 14th Street SW, 
Washington, DC, on business days between 8:30 a.m. and 4:00 p.m. 
Visitors are encouraged to call ahead at (202) 205-3563 to facilitate 
entry into the building. Comments may also be viewed on the Federal 
eRulemaking Portal at https://www.regulations.gov. In the search box, 
enter ``RIN 0596-AD56'' and click the ``Search'' button.

FOR FURTHER INFORMATION CONTACT: Brandon Smith, Lands, Minerals, and 
Geology Management Staff, (406) 491-1605 or [email protected]. 
Individuals who use telecommunication devices for the hearing impaired 
may call the Federal Relay Service at (800) 877-8339 between 8:00 a.m. 
and 8:00 p.m., Eastern Time, Monday through Friday.

SUPPLEMENTARY INFORMATION: 

Background

    The Forest Service administers the use and occupancy of National 
Forest System lands through issuance of special use authorizations. The 
Forest Service administers approximately 74,000 special use 
authorizations, including nearly 14,000 recreation residence permits on 
National Forest System lands spread across 24 states and 114 national 
forests. Recreation residences are privately owned cabins that have 
been authorized on National Forest System lands since 1915. Like other 
types of special use authorizations, permits for recreation residences 
are subject to an annual land use fee, payable in advance at the 
beginning of the calendar year.

Need for the Proposed Rule

    The Cabin Fee Act of 2014 (16 U.S.C. 6214) establishes a tiered fee 
structure for the use and occupancy of recreation residences on 
National Forest System lands. Section 2(f)(3)(A) of the Cabin Fee Act 
requires the Forest Service to establish criteria by which the annual 
land use fee for a recreation residence permit may be suspended or 
temporarily reduced if access to, or occupancy of, the recreation 
residence is significantly restricted. Section 2(f)(3)(B) of the Cabin 
Fee Act requires the determination of whether to suspend or temporarily 
reduce the annual land use fee for a recreation residence permit to be 
administratively appealable.

Proposed Revisions to 36 CFR Part 214

    The proposed rule would amend 36 CFR 214.4(c) by adding paragraph 
(6) to provide for appeal of a decision of whether to temporarily 
reduce the annual land use fee for a recreation residence permit during 
significantly restricted access to, or occupancy of, the recreation 
residence.

Proposed Revisions to 36 CFR Part 251, Subpart B

    The proposed rule would add a definition to 36 CFR 251.51 for the 
term ``significantly restricted access to, or occupancy of, a 
recreation residence,'' which would be defined as when access to, or 
occupancy of, a recreation residence is prohibited by law for a

[[Page 67695]]

period of at least 30 consecutive calendar days (a) by an order issued 
under 36 CFR part 261, subpart B, closing an area including the 
National Forest System lands occupied by the recreation residence or 
closing a National Forest System road providing the sole access to the 
recreation residence to address public health or safety concerns, such 
as severe risk of fire or flooding or (b) by a State or county 
department of transportation imposing a round-the-clock closure of a 
State or county road providing the sole access to a recreation 
residence. The objectivity and simplicity of this definition would 
avoid the need for a detailed factual inquiry or exercise of 
discretion, thereby facilitating and enhancing consistency in 
implementation.
    The definition for ``significantly restricted access to, or 
occupancy of, a recreation residence'' would not include other 
situations where access to, or occupancy of, the recreation residence 
is restricted, such as situations where the recreation residence cannot 
be accessed or occupied because a private access road or the recreation 
residence has not been adequately maintained or where a private access 
road or the recreation residence has been destroyed or substantially 
damaged. The Agency believes these situations should be outside the 
scope of the temporary land use fee reduction, consistent with the risk 
of loss clause in the term special use permit for recreation 
residences.
    The proposed rule would amend 36 CFR 251.57 by adding paragraph (j) 
to provide for temporarily reducing the annual land use fee for a 
recreation residence permit during significantly restricted access to, 
or occupancy of, the recreation residence. For consistency and ease of 
implementation, the proposed rule would provide for temporarily 
reducing the land use fee proportionate to the number of days of 
significantly restricted access to, or occupancy of, the recreation 
residence, rather than for suspending the land use fee after 
significantly restricted access to, or occupancy of, the recreation 
residence has reached a specified number of days. A temporary land use 
fee reduction would be calculated by dividing the annual land use fee 
for the recreation residence by 365 to determine the daily land use fee 
and then multiplying the daily land use fee by the number of days of 
significantly restricted access to, or occupancy of, the recreation 
residence. For ease of administration, if significantly restricted 
access to, or occupancy of, a recreation residence includes part of one 
day, that day would be counted as a whole day. A temporary land use fee 
reduction during significantly restricted access to, or occupancy of, a 
recreation residence would be applied to the annual land use fee for 
the recreation residence permit for the following year.
    The proposed rule would have no effect on the risk of loss clause 
in term special use permits for recreation residences, other than by 
providing for temporarily reducing the annual land use fee for a 
recreation residence permit in accordance with the terms of the 
proposed rule, consistent with the Cabin Fee Act. The proposed rule 
would have no effect on any other type of special use or special use 
authorization.

Regulatory Certifications

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget will 
determine whether a regulatory action is significant and will review 
significant regulatory actions. The Office of Information and 
Regulatory Affairs has determined that this proposed rule is not 
significant. Executive Order 13563 reaffirms the principles of 
Executive Order 12866 while calling for improvements in the nation's 
regulatory system to promote predictability; to reduce uncertainty; and 
to use the best, most innovative, and least burdensome tools for 
achieving regulatory ends. The Agency has developed the proposed rule 
consistent with Executive Order 13563.

Congressional Review Act

    Pursuant to subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 
801 et seq.), the Office of Information and Regulatory Affairs has 
designated this proposed rule as not a major rule as defined by 5 
U.S.C. 804(2).

National Environmental Policy Act

    The proposed rule would update the Agency's regulations consistent 
with the requirement in the Cabin Fee Act to provide for a suspension 
or temporary reduction in the land use fee for a recreation residence 
permit if access to, or occupancy of, the recreational residence is 
significantly restricted. Forest Service regulations at 36 CFR 
220.6(d)(2) exclude from documentation in an environmental assessment 
or environmental impact statement ``rules, regulations, or policies to 
establish servicewide administrative procedures, program processes, or 
instructions.'' The Agency's preliminary assessment is that this 
proposed rule falls within this category of actions and that no 
extraordinary circumstances exist which would require preparation of an 
environmental assessment or environmental impact statement. A final 
determination will be made upon adoption of the final rule.

Regulatory Flexibility Act Analysis

    The Agency has considered the proposed rule under the requirements 
of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). The proposed 
rule would update the Agency's regulations consistent with the 
requirement in the Cabin Fee Act to provide for a suspension or 
temporary reduction in the land use fee for a recreation residence 
permit if access to, or occupancy of, the recreational residence is 
significantly restricted. This proposed rule would not have any direct 
effect on small entities as defined by the Regulatory Flexibility Act. 
The proposed rule would not impose recordkeeping requirements on small 
entities; would not affect their competitive position in relation to 
large entities; and would not affect their cash flow, liquidity, or 
ability to remain in the market. Therefore, the Forest Service has 
determined that this proposed rule would not have a significant 
economic impact on a substantial number of small entities pursuant to 
the Regulatory Flexibility Act.

Federalism

    The Agency has considered the proposed rule under the requirements 
of Executive Order 13132, Federalism. The Agency has determined that 
the proposed rule conforms with the federalism principles set out in 
this executive order; would not impose any compliance costs on the 
States; and would not have substantial direct effects on the States, on 
the relationship between the Federal Government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, the Agency has concluded that the proposed 
rule does not have federalism implications.

Consultation and Coordination With Indian Tribal Governments

    Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments, requires Federal agencies to consult and coordinate 
with Tribes on a government-to-government basis on policies that have 
Tribal implications, including regulations, legislative comments or 
proposed legislation, and other policy statements or actions that have 
substantial direct effects on one or

[[Page 67696]]

more Indian Tribes, on the relationship between the Federal Government 
and Indian Tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes. The proposed rule 
would update the Agency's regulations consistent with the requirement 
in the Cabin Fee Act to provide for a suspension or temporary reduction 
in the land use fee for a recreation residence permit if access to, or 
occupancy of, the recreational residence is significantly restricted. 
The Agency has reviewed this proposed rule in accordance with the 
requirements of Executive Order 13175 and has determined that this 
proposed rule would not have substantial direct effects on Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes. Therefore, consultation and 
coordination with Indian Tribal governments is not required for this 
proposed rule.

Environmental Justice

    The Agency has considered the proposed rule under the requirements 
of Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations. The Forest 
Service has determined that the proposed rule is not expected to result 
in disproportionately high and adverse impacts on minority or low-
income populations or the exclusion of minority and low-income 
populations from meaningful involvement in decision-making.

No Takings Implications

    The Agency has analyzed the proposed rule in accordance with the 
principles and criteria in Executive Order 12630, Governmental Actions 
and Interference with Constitutionally Protected Property Rights. The 
Agency has determined that the proposed rule would not pose the risk of 
a taking of private property.

Energy Effects

    The Agency has reviewed the proposed rule under Executive Order 
13211, Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use. The Agency has determined that the 
proposed rule would not constitute a significant energy action as 
defined in Executive Order 13211.

Civil Justice Reform

    The Forest Service has analyzed the proposed rule in accordance 
with the principles and criteria in Executive Order 12988, Civil 
Justice Reform. After adoption of the proposed rule, (1) all State and 
local laws and regulations that conflict with the proposed rule or that 
impede its full implementation would be preempted; (2) no retroactive 
effect would be given to the proposed rule; and (3) it would not 
require administrative proceedings before parties may file suit in 
court challenging its provisions.

Unfunded Mandates

    Pursuant to title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the Agency has assessed the effects of the proposed 
rule on State, local, and Tribal governments and the private sector. 
The proposed rule would not compel the expenditure of $100 million or 
more by any State, local, or Tribal government or anyone in the private 
sector. Therefore, a statement under section 202 of the Act is not 
required.

Controlling Paperwork Burdens on the Public

    The proposed rule does not contain recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR part 1320 that are not already required by law or not already 
approved for use. Accordingly, the review provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing 
regulations at 5 CFR part 1320 do not apply.

List of Subjects

36 CFR Part 214

    Administrative practice and procedure, National forests.

36 CFR Part 251

    Administrative practice and procedure, Alaska, Electric power, 
Mineral resources, National forests, Public lands--rights-of-way, 
Reporting and recordkeeping requirements, Water resources.

    Therefore, for the reasons set forth in the preamble, the Forest 
Service proposes to amend chapter II of title 36 of the Code of Federal 
Regulations as follows:

PART 214--POSTDECISIONAL ADMINISTRATIVE REVIEW PROCESS FOR 
OCCUPANCY OR USE OF NATIONAL FOREST SYSTEM LANDS AND RESOURCES

0
1. The authority citation for part 214 continues to read as follows:

    Authority:  7 U.S.C. 1011(f); 16 U.S.C. 472, 551.

0
2. Amend Sec.  214.4 by adding paragraph (c)(6) to read as follows:


Sec.  214.4  Decisions that are appealable.

* * * * *
    (c) * * *
* * * * *
    (6) A decision of whether to temporarily reduce the annual land use 
fee for a recreation residence permit during a period of significantly 
restricted access to, or occupancy of, the recreation residence.
* * * * *

PART 251--LAND USES

Subpart B--Special Uses

0
3. The authority citation for part 251, subpart B, continues to read as 
follows:

    Authority:  16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551, 
580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1772.

0
4. Amend Sec.  251.51 by adding in alphabetical order a definition for 
``significantly restricted access to, or occupancy of, a recreation 
residence'' to read as follows:


Sec.  251.51  Definitions.

* * * * *
    Significantly restricted access to, or occupancy of, a recreation 
residence--When access to, or occupancy of, a recreation residence is 
prohibited by law for a period of at least 30 consecutive calendar days 
(a) by an order issued under 36 CFR part 261, subpart B, closing an 
area including the National Forest System lands occupied by the 
recreation residence or closing a National Forest System road providing 
the sole access to the recreation residence to address public health or 
safety concerns, such as severe risk of fire or flooding or (b) by a 
State or county department of transportation imposing a round-the-clock 
closure of a State or county road providing the sole access to a 
recreation residence.
* * * * *
0
5. Amend Sec.  251.57 by revising the title and adding paragraph (j) to 
read as follows:


Sec.  251.57  Land use fees.

* * * * *
    (j) The annual land use fee for a recreation residence permit shall 
be temporarily reduced during periods of significantly restricted 
access to, or occupancy of, the recreation residence. A temporary land 
use fee reduction for significantly restricted access to, or occupancy 
of, a recreation residence shall be calculated by dividing the annual 
land use fee for the recreation residence permit by 365 to determine

[[Page 67697]]

the daily land use fee and then multiplying the daily land use fee by 
the number of days of significantly restricted access to, or occupancy 
of, the recreation residence. If significantly restricted access to, or 
occupancy of, the recreation residence includes part of one day, that 
day shall be counted as a whole day. A temporary land use fee reduction 
during significantly restricted access to, or occupancy of, a 
recreation residence shall be applied as a credit to the annual land 
use fee for the recreation residence permit for the following year.

Homer Wilkes,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2023-21564 Filed 9-29-23; 8:45 am]
BILLING CODE 3411-15-P