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

AGENCY:

Forest Service, USDA.

ACTION:

Final rule.

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 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.

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 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 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.

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:

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.

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

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

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

4. Amend § 251.51 by adding in alphabetical order a definition for “significantly restricted access to or occupancy of a recreation residence” to read as follows:

5. Amend § 251.57 by adding paragraph (i) to read as follows:

[FR Doc. 2024-20239 Filed 9-6-24; 8:45 am]

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