[Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Rules and Regulations]
[Pages 72990-72994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20239]


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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, USDA.

ACTION: Final rule.

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SUMMARY: The Forest Service (Forest Service or Agency), United States 
Department of Agriculture, is issuing this final rule to update its 
special uses regulations, consistent with the requirement in the Cabin 
Fee Act, to provide for suspension or temporary

[[Page 72991]]

reduction of the land use fee for a recreation residence permit if 
access to or occupancy of the recreation residence is significantly 
restricted.

DATES: The final rule is effective October 9, 2024.

FOR FURTHER INFORMATION CONTACT: Brandon Smith, Lands, Minerals, and 
Geology Management Staff, (406) 491-1605 or [email protected]. 
Individuals who use telecommunications devices for the hearing-impaired 
may call 711 to reach the Telecommunications Relay Service, 24 hours a 
day, every day of the year, including holidays.

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 
for use and occupancy of National Forest System lands 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 Final 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 (f)(3)(A) of the Cabin Fee Act 
(16 U.S.C. 6214(f)(3)(A)) 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 (f)(3)(B) of the Cabin Fee Act (16 U.S.C. 6214(f)(3)(B)) 
requires the determination of whether to suspend or temporarily reduce 
the annual land use fee for a recreation residence permit to be 
administratively appealable.

Revisions to 36 CFR Part 214

    The final rule amends 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.

Revisions to 36 CFR Part 251, Subpart B

    The final rule adds a definition to 36 CFR 251.51 for the term 
``significantly restricted access to or occupancy of a recreation 
residence,'' which is defined as 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. The objectivity and 
simplicity of this definition avoids 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'' does 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 
Department 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, which 
is a standard clause in special use authorizations.
    The final rule amends 36 CFR 251.57 by adding paragraph (i) 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 final rule provides 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 will 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 will be applied to the annual land use fee for the 
recreation residence permit for the following year.
    The final rule has no effect on the risk of loss clause in term 
special use permits for recreation residences, other than by 
temporarily reducing the annual land use fee for a recreation residence 
permit in accordance with the terms of the final rule, consistent with 
the Cabin Fee Act. The final rule has no effect on any other type of 
special use or special use authorization.
    This final rule is entirely within the scope of section (f)(3)(A) 
and (B) of the Cabin Fee Act (16 U.S.C. 6214(f)(3)(A) and (B)), which 
is unambiguous. Section (f)(3)(A) requires the Department to promulgate 
regulations that ``establish criteria pursuant to which the annual fee 
determined in accordance with this section may be suspended or reduced 
temporarily if access to, or the occupancy of, the recreational 
residence is significantly restricted.'' Section (f)(3)(A) thus gives 
the Department discretion to determine the criteria for suspending or 
temporarily reducing the annual land use fee if access to or occupancy 
of a recreation residence is significantly restricted. The final rule 
establishes those criteria as provided by the Cabin Fee Act. Section 
(f)(3)(B) of the Cabin Fee Act requires the Department to promulgate 
regulations that ``grant the cabin owner the right of an administrative 
appeal of the determination made in accordance with subparagraph (A) 
whether to suspend or reduce temporarily the annual fee.'' The final 
rule provides for such an administrative appeal right as required by 
the Cabin Fee Act.

Summary of Comments and Responses

Overview

    The proposed rule was published in the Federal Register on October 
2, 2023 (88 FR 67694). The Federal Register notice provided for a 60-
day comment period that closed December 1, 2023. The Forest Service 
received 29 comments during the comment period. One comment was from an 
organization, and the other comments, which were from individuals, 
referenced the

[[Page 72992]]

comment from the organization or incorporated text from that comment 
with slight modifications. Most of the comments addressed the scope of 
the criteria for determining when a recreation residence would qualify 
for a suspension or temporary reduction of the annual land use fee for 
a recreation residence and the calculation for determining a temporary 
reduction in the annual land use fee.
    The comments on the proposed rule and the Department's responses 
follow.

General Comments

    Comment: Several commenters believed that the requirement in the 
Cabin Fee Act to provide for suspension or temporary reduction of the 
annual land use fee for a recreation residence permit if access to or 
occupancy of the recreation residence is significantly restricted 
should be interpreted broadly to encompass a wide range of scenarios. 
These commenters believed that additional scenarios, such as when a 
recreation residence is destroyed or partially damaged, should trigger 
a suspension or temporary reduction of the annual land use fee for a 
recreation residence because of significantly restricted access to or 
occupancy of the recreation residence.
    Response: As required by the Cabin Fee Act, the proposed and final 
rules specify the criteria for when the annual land use fee for a 
recreation residence permit will be temporarily reduced if access to or 
occupancy of the recreation residence is significantly restricted.
    Recreation residence permits contain standard terms to provide for 
legal and programmatic sufficiency and that are included in special use 
authorizations for a wide range of uses and activities on National 
Forest System lands. Comments regarding standard terms in recreation 
residence permits, including the risk of loss clause, are outside the 
scope of the proposed and final rules. The Federal Register notices for 
the proposed and final rules reference the standard risk of loss clause 
in the recreation residence permit strictly in connection with 
scenarios that will not trigger a temporary reduction in the annual 
land use fee because they are risks assumed by the holder under the 
standard risk of loss clause, and to limit the effect of the rule on 
the standard risk of loss clause to providing for temporarily reducing 
the annual land use fee for a recreation residence permit in accordance 
with the terms of the proposed and final rules, consistent with the 
Cabin Fee Act.
    This final rule implements a statutory requirement in the Cabin Fee 
Act to provide for suspension or temporary reduction of the annual land 
use fee for a recreation residence because of significantly restricted 
access to or occupancy of the recreation residence. The Cabin Fee Act 
requires the rule to specify the criteria for when this requirement is 
met. The specific criteria in the rule are when access to or occupancy 
of a recreation residence is prohibited by law for a period of at least 
30 consecutive calendar days either (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 Department does not believe it is appropriate to include other 
situations where access to or occupancy of a 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 Department believes these situations fall outside the 
scope of the temporary annual land use fee reduction for a recreation 
residence because they are risks assumed by the holder of a recreation 
residence permit under the standard risk of loss clause in form FS-
2700-5a, Term Special Use Permit for Recreation Residences.
    Comment: Commenters expressed interest in factoring in seasonal and 
weather-related limitations on access to a recreation residence in 
calculating a temporary reduction in the annual land use fee for a 
recreation residence based on significantly restricted access to or 
occupancy of the recreation residence.
    Response: Access to recreation residences was considered in and 
influenced the valuation process that was used to establish the 11 land 
use fee tiers in the Cabin Fee Act. The methodology in the final rule 
for calculating the temporary reduction in the annual land use fee for 
significantly restricted access to or occupancy of a recreation 
residence allows for a simplified, consistent, and national approach 
that avoids additional processes and analysis. Annual land use fees for 
recreation residences are charged for the entire year, and there is 
nothing in form FS-2700-5a, Term Special Use Permit for Recreation 
Residences, that limits the use and occupancy for any season. 
Recreation residences may be used any month of the year and depending 
on the circumstances may be accessed on foot or by over-snow vehicle, 
snowshoes, or watercraft, as well as by car. The No Warranty of Access, 
Site Suitability, or Services clause in Form FS-2700-5a states that the 
Forest Service does not make any express or implied warranty of access 
to the permit area, of the suitability of the permit area for the 
authorized uses, or for the furnishing of road or trail maintenance, 
water, fire protection services, search and rescue services, or any 
other services by a government agency, utility, association, or 
individual.

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 final 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 Department has developed the final 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 final rule as not a major rule as defined by 5 U.S.C. 
804(2).

National Environmental Policy Act

    The final rule updates the Department's regulations consistent with 
the requirement in the Cabin Fee Act to provide for a suspension or 
temporary reduction in the annual 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

[[Page 72993]]

to establish servicewide administrative procedures, program processes, 
or instructions.'' The Department's assessment is that this final 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.

Regulatory Flexibility Act Analysis

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

Federalism

    The Department has considered the final rule under the requirements 
of Executive Order 13132, Federalism. The Department has determined 
that the final rule conforms with the federalism principles set out in 
this executive order; will not impose any compliance costs on the 
States; and will 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 Department has concluded that the final 
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 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 final rule updates the Department's 
regulations consistent with the requirement in the Cabin Fee Act to 
provide for a suspension or temporary reduction in the annual land use 
fee for a recreation residence permit if access to or occupancy of the 
recreational residence is significantly restricted. The Department has 
reviewed this final rule in accordance with the requirements of 
Executive Order 13175 and has determined that this final rule will 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 final rule.

Environmental Justice

    The Department has considered the final rule under the requirements 
of Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations. The 
Department has determined that the final 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.

Family Policymaking Assessment

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a 
Family Policymaking Assessment for a rule that may affect family well-
being. The final rule will have no impact on the autonomy or integrity 
of the family as an institution. Accordingly, the Department has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment for the final rule.

No Takings Implications

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

Energy Effects

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

Civil Justice Reform

    The Department has analyzed the final rule in accordance with the 
principles and criteria in Executive Order 12988, Civil Justice Reform. 
After adoption of the final rule, (1) all State and local laws and 
regulations that conflict with the final rule or that impede its full 
implementation will be preempted; (2) no retroactive effect will be 
given to the final rule; and (3) it will 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 Department has assessed the effects of the final 
rule on State, local, and Tribal governments and the private sector. 
The final rule will 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 final 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 amends chapter II of title 36 of the Code of Federal 
Regulations as follows:

[[Page 72994]]

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(c) 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:
    (1) 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
    (2) 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 adding paragraph (i) to read as follows:


  Sec.  251.57 Land use fees.

* * * * *
    (i) 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 
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. 2024-20239 Filed 9-6-24; 8:45 am]
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