[Federal Register Volume 59, Number 105 (Thursday, June 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13323]
[[Page Unknown]]
[Federal Register: June 2, 1994]
_______________________________________________________________________
Part IV
Department of Agriculture
_______________________________________________________________________
Forest Service
_______________________________________________________________________
Recreation Residence Authorizations; Notice
DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AB06
Recreation Residence Authorizations
AGENCY: Forest Service, USDA.
ACTION: Notice, adoption of final policy.
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SUMMARY: The Forest Service is adopting revised policies and procedures
for administering special use permits that authorize privately owned
recreation residences on National Forest System lands. This action is
in response to an administrative appeal decision by the Assistant
Secretary of Agriculture for Natural Resources and Environment that
found that certain portions of the policy adopted on August 16, 1988,
exceeded agency authority. The decision directed that those portions of
the policy be stayed from implementation pending reformulation and
publication of a revised policy in the Federal Register. In addition to
adopting new provisions affected by the appeal decision, this final
policy also conforms administrative provisions to revisions in the
Secretary of Agriculture's Administrative Appeal regulations governing
authorizations for occupancy and use of National Forest System lands,
adopted after the original recreation residence policy. This final
policy also clarifies the policy for determination of annual rental
fees. The intended effect of this action is to administer recreation
residence authorizations consistent with statutory authority.
EFFECTIVE DATE: This policy is effective June 17, 1994.
FOR FURTHER INFORMATION CONTACT:
Questions about this policy should be addressed to J. Kenneth Myers,
Lands Staff, Forest Service, USDA, P.O. Box 96090, Washington, DC
20090-6090, (202) 205-1248.
SUPPLEMENTARY INFORMATION: On August 16, 1988, the Forest Service
adopted a final policy and procedures for administering special use
permits that authorize privately-owned recreation residences on
national Forest System lands (53 FR 30924). The policy established a
new procedure for calculating annual fees, gave direction on tenure and
renewability of the permits, and described procedures to be followed
when the recreation residence lot was needed for a higher public
purpose
This policy was appealed to the Secretary of Agriculture on
September 15, 1988. The appellants alleged that the process by which
this policy was developed was flawed because the policy exceeded
statutory limitations on recreation residence use of the National
Forests, and that the appellants and the public were adversely affected
by the policy
In a decision dated February 15, 1989, the Assistant Secretary of
Agriculture for Natural Resources and Environment remanded the policy
to the Forest Service for restudy and reformulation and stayed the
implementation of certain provisions of the 1988 policy as follows: (1)
Those nonrenewal provisions relating to or requiring a showing of
higher public purpose where the lands occupied were deemed needed for
other than recreation residences; (2) those provisions requiring
automatic permit renewal 10 years prior to expiration unless nonrenewal
had been established; (3) those provisions requiring the offering of
``in-lieu'' lots to permittees who had received notice of nonrenewal or
termination; and (4) those provisions weighted against consideration of
commercial uses for lots when nonrenewal of the recreation use was
contemplated. Further, the decision expressed concern about other
provisions of the policy, such as fee determination procedures. In
addition, the Assistant Secretary required that the remaining features
of the final policy be designated as interim policy pending its
reformulation following all applicable process requirements.-
The policy adopted August 16, 1988, was issued as direction to
Forest Service personnel through amendments and interim directives to
Forest Service Manual (FSM) chapters 2340 and 2720 and Forest Service
Handbook (FSH) 2709.11--Special Uses Handbook. On June 1, 1989, at 54
FR 23499, the Forest Service gave notice that the direction in FSM 2340
and 2720 was to be revised, that the remaining portions of the policy
were designated as interim policy in compliance with the Assistant
Secretary's decision, and removed those provisions stayed by the
Assistant Secretary.
On September 20, 1989, in response to the Assistant Secretary's
decision, the Forest Service gave notice that it was seeking comments
on an Advance Notice of Proposed Policy (54 FR 38700). A 60-day comment
period was provided which was extended an additional 60 days, expiring
on January 19, 1990. In this notice, the agency offered alternative
approaches to those portions of the policy stayed by the Assistant
Secretary's decision and asked for public advice and comment on those
provisions and on the options that the agency identified to replace the
current policy provisions.
The public comment received on the September 20, 1989, notice was
considered in the development of a proposed reformulated policy
published on October 10, 1991 (56 FR 51260). A 90-day comment period
was provided for this notice which was extended an additional 60 days
to March 9, 1992. This proposed policy also provided appropriate
clarifying and explanatory material for those parts of the 1988 policy
shown as areas of concern in the Assistant Secretary's decision.
Analysis and Response to Public Comments
The Forest Service received 7,793 comments on the October 10, 1991,
notice of proposed policy. The analysis of the public comments was
accomplished using standard Forest Service procedures designed to
ensure an objective and systematic analysis. Information was tabulated
electronically. The number and percentage of responses by category of
respondents (as identified by the respondent) is as follows:
------------------------------------------------------------------------
Respondent type Number Percentage
------------------------------------------------------------------------
Permittee..................................... 4,656 60
Friend or Family of Permittee................. 996 12
Permittee Association......................... 47 1
Other Organization............................ 3 (\1\)
Interested Party, Not a Permittee............. 2,084 26
Forest Service Personnel...................... 7 (\1\)
-------------------------
Total................................... 7,793 100
------------------------------------------------------------------------
\1\Less than 1 percent.
Comments were received from 45 States, Puerto Rico and the District
of Columbia. Over 50 percent of the responses came from California
which contains about 40 percent of all recreation residences. There
were 312 comments received after the closing date of the notice and not
considered in the analysis of comments.
Respondents comments were sorted according to the proposed policy
provisions identified in the comment. They were further identified as:
(1) Agreeing with the provision, (2) agreeing with the provision but
with a contingency (comment), (3) disagreeing with the provision, and
(4) disagreeing with the provision but with a contingency.
Of the 7,793 responses received, 6,264 (80 percent) were in the
form of questionnaires developed and distributed by 2 national
permittee associations. The questionnaires presented several general
statements describing a premise or belief of what the content of the
revised policy should be to which the respondent could either agree or
disagree. For example, question 1 of the National Forest Homeowners
questionnaire stated ``I strongly support the policy provision that
says recreation residences are a valid and important recreation use,
and that it is Forest Service policy to continue them. Please leave
this provision unchanged.'' The fourth question of the National
Inholders Association questionnaire stated ``Removal of recreation
residences will cause emotional pain and disruption for forest
permittees and their families. It will cause waste of resources. For
that reason, the proposed policy of allowing removal of existing
recreation residences where there is no higher use (FSM 2721.23e) is
arbitrary and wasteful.'' The questionnaire responses were analyzed and
the general views of the respondents considered during preparation of
this final revised policy. These views were helpful in identifying
issues of concern to permittees.
Narrative comments were attached to 704 questionnaires. In
addition, 1,529 letters containing comments on specific provisions of
the proposed policy were received. The total of 2,233 narrative
responses, several of which provided very detailed analysis and
recommendations on policy provisions, provided the most useful
information in preparing the final revised policy and form the basis
for the following comment analysis.
In addition to providing the questionnaire response forms to their
members, the permittee associations provided narrative responses to the
proposed policy. These were generally detailed analysis of the policy
with the associations' recommendations for revision and improvement.
A summary of the general comments received and the agency's
response to them is presented first, followed by a summary of the
specific comments received and the agency's response. Specific comments
are organized in the same format as found in the supplementary
information to the proposed policy notice, that is, the same 7 topic
headings representing the major issues addressed in the proposed policy
are used. The comment analysis concludes with a discussion of the
matters of concern in the Assistant Secretary's decision and the
agency's response.
General Comments
Over half of the 2,233 respondents provided general comments on
recreation residence use which were not directed at specific provisions
of the policy. Many respondents affirmed their desire to keep their
cabins, at the same location, at reasonable cost, and without
continuous fear of nonrenewal of their permits. These respondents felt
the agency, through the proposed policy, was abandoning support for the
recreation residence program, was biased against permit holders, and
was seeking to remove this use from National Forest System lands. Some
respondents, however, felt the agency was biased in favor of permit
holders.
Many respondents offered eloquent testimony to the significance of
the cabin to their family, citing emotional ties to the site that span
several generations. Others emphasized the importance of the recreation
residence use to the National Forest, describing how the cabins are
used by a large segment of the public for recreation, generate income
to the Treasury, and contribute to the stewardship of the National
Forests.
One permittee association advocated expansion of existing
recreation residence tracts and establishment of new tracts. This view
was based on the belief that the agency was in violation of the Civil
Rights Act of 1964 by failing to make recreation residence lots
available to persons of minority races, or of diverse religious,
political, and sexual beliefs. On the other hand, several respondents,
favored no expansion to phasing out of all recreation residence tracts.
Many respondents objected to the appeal of the August 10, 1988,
policy and 270 suggested that the policy be restored in its entirety.
Often, these respondents stated that the proposed policy was biased and
discriminatory against cabin owners and was overly responsive to the
views of those who opposed recreation residence use. A smaller number
felt the proposed policy was an improvement over the 1988 policy, but
that there were several flaws in the 1988 policy not addressed in the
proposal, particularly that the bias in favor of permit holders, as
identified in the appeal decision, had not been corrected. Eleven
respondents offering general comments generally agreed with the
proposed policy, that it responded to the appeal decision, was
constructive and a step in the right direction.
The Forest Service recognizes that there is a divergency of opinion
on recreation residence use on the National Forests. It is sympathetic
to those who have enjoyed the privilege of the use for many years and
who want to continue the privilege. Further, the contributions these
holders make to the management and protection of the National Forests
is acknowledged.
The agency also recognizes that increasing demands are being placed
on the National Forests to meet a wider array of public uses.
Significant new public laws have been enacted since the act authorizing
privately owned recreation residences on the National Forests was
enacted in 1915. These laws, particularly the National Environmental
Policy Act and the National Forest Management Act of 1976, directly
impact the way the agency manages public and private uses of the
National Forests. Equally significant, public perceptions of how the
National Forests should be managed have changed in the 75 years the
recreation residence program has been in existence.
The agency, by policy adopted over 25 years ago, stopped the
establishment of new recreation residence tracts. Subsequently, it
stopped issuing new permits for vacant lots in already established
tracts. This has fixed the number of recreation residences in existence
to a current 15,600. This action was taken in response to an increasing
public demand for recreation use on the National Forests in the 1960's.
The rationale supporting that policy decision still applies. The
agency, while recognizing the views of those respondents who seek to
create new recreation residence opportunities, believes that such
action would not be in the public interest. It does not propose to
create tracts nor offer new permits for recreation residence use.
Recreation residences are bought and sold in the private real estate
market, and, as such, are available to all individuals under the laws
of the States and local governments in which they are located.
The Forest Service, in responding to the administrative appeal
decision, seeks a permit review and issuance process that does not show
bias in favor of the recreation residence use, nor an intent by policy
to remove the permitted use.
Readers are reminded that whether recreation residence use should
continue to be permitted on National Forest System lands is not the
issue addressed in this final policy. The Assistant Secretary's appeal
decision did not challenge the appropriateness or continuation of the
use. Rather, it focussed on legal flaws identified in the 1988 policy
and in the process by which that policy was adopted. This final policy
responds solely to the specific provisions in the appeal decision. The
agency has not revised, redirected, or otherwise changed the national
guidance stated in the 1988 policy and which was not debated in the
appeal decision.
Several respondents offered editing suggestions on the proposed
policy. For example, the words ``lot'' and ``site'' were used
interchangeably in describing the holder's permitted area. The agency
agrees that use of a single term improves clarity and has used the word
``lot'' throughout the final policy. Also, the words ``permittee'' and
``holder'' were both used to identify the party holding the permit for
the recreation residence lot. Holder is the correct term and is used
throughout the final policy.
The use of terms ``termination'' and ``revocation'' in this policy,
when describing the action leading to cessation of the privileges
granted by the permit, have caused confusion among holders and agency
field personnel alike. A recent amendment to the Manual (FSM 2705)
clarified these terms and made their use consistent with regulations at
36 CFR 251. This action requires a conforming revision to the
recreation residence policy. In most cases, the term ``revocation''
replaces the term ``termination.'' To aid readers in understanding use
of these terms in the final policy, they are defined as follows:
Revocation: The cessation of a special use authorization by
action of the authorized officer prior to the end of the specified
period of occupancy or use due to the holder's noncompliance with
the terms of the authorization, failure to exercise the privileges
granted, or for reasons that are in the interest of the general
public. Revocations are appealable by the holder.
Termination: The cessation of a special use authorization by
operation of law or the occurrence of a fixed or agreed-upon
condition, event or time without the necessity for any decision or
action by the authorized officer.
Several other editing suggestions are incorporated into the final
policy.
Finally, many respondents offered comments on provisions of the
policy that were not addressed in the Assistant Secretary's appeal
decision. For example, several respondents objected to the provision in
the permit which requires holders to ``inspect the lot and adjoining
areas for dangerous trees, hanging limbs, and other evidence of
hazardous conditions which could affect the improvements and or pose a
risk of injury to individuals.'' (Permit provision IV.G) This provision
was in the permit adopted as part of the August 10, 1988, policy. As
such, it was not considered in this revision of that policy. The agency
appreciates receiving these comments. They are an indication of holder
concerns and will be considered as the policy is updated and kept
current.
Specific Comments and Response
The October 10, 1991, Federal Register notice requested public
comments on a proposed revision to the recreation residence policy. The
material in that notice was arranged in 7 discussion topics that
grouped the revisions into elements or segments of the four agency
directives that bear on recreation residences. These 7 discussion
topics are also used in this notice. However, the entire recreation
residence policy is presented in this notice so that readers can see
the revisions in the context of the complete direction.
Many of the respondents offering specific comments also asked that
key provisions and phrases from one part of the policy be added to
provisions elsewhere in the policy to lend emphasis or clarity to the
provision. The Forest Service advises that the redundancy occurring as
a result of this would be inconsistent with agency directive system
policy. Readers are also advised that Forest Service direction for
administering recreation residence permits, or any other type of
special use authorization, does not stand alone in the agency's
administrative manual or handbooks. The direction in this notice is
dependent on overall direction affecting the entire special use program
which appears in Federal Regulations at 36 CFR part 251, subpart B, and
titles 2300 and 2700 of the Manual. In addition, other direction
affecting the management of the National Forest System bears upon the
recreation residence policy. In particular, direction dealing with
planning for all land and resource management activity and related
direction dealing with environmental analysis and compliance with the
National Environmental Policy (NEPA), found at FSM 1920, and FSM 1950
and FSH 1909.15, respectively, greatly influences the direction
contained in this notice. The agency has added cross-references where
appropriate when a specific policy provision is guided by broader
policy direction.
1. Validity of the Recreation Residence Use. The proposed direction
at FSM 2347.1 set forth the basic policy on recreation residence use
and continuance. The beginning paragraph of that section established
that recreation residences were a valid use of National Forest System
land and an important component of the overall National Forest
recreation program. A clear statement of policy followed stating that
the use could continue to occupy the Federal lands. The purpose of this
revision was to place the recreation residence use on an equal footing
with other uses when decisions involving allocation of the land were
being made.
Comments. There were 738 comments received on this proposed policy.
Most supported the policy statement and suggested it be strengthened.
For example, several respondents suggested the following language:
``Therefore, when considering nonrenewal of recreation residence
permits for an alternative use be sure that the value of the
alternative public use is equal to, or exceeds the value of the
existing recreation use.'' Other respondents opposed the provision,
stating that it overstated the importance of the use and that such
words as ``important'' implied that other uses were not important. It
was suggested that the word ``equally'' be placed before the words
``valid'' and ``important'' to provide better balance to the policy
statement.
Response. The Forest Service believes that recreation residences
are a valid and important use of the National Forests. Equally, it
believes that existing uses should be allowed to continue. The agency
recognizes that there may be rare instances when a use is not
consistent with a National Forest's Land and Resource Management Plan
(Forest plan), and the recreation residence use must give way to an
alternative public use. However, the overall policy stated in this
section is appropriate to ensure that any decision to not allow a new
permit for an established use to be issued must be fair and equitable
and supported by careful analysis and documentation. The Forest Service
is satisfied that the policy statement in FSM 2347.1 adequately
establishes the appropriateness of the recreation residence use without
the need for further clarification and will adopt the language as
proposed.
2. Conformity to the 1915 Term Permit Act. This topic is confined
to one provision of the proposed policy. Proposed paragraph 2 of FSM
2347.03 stated: ``Ensure that recreation residence use does not
preclude the general public from full enjoyment of the natural, scenic,
recreational, and other aspects of the National Forests as stipulated
in the Act of March 4, 1915 (FSM 2701).'' This provision was placed in
the proposed policy to emphasize this requirement of the 1915 Act and
uses words from the Act. This provision was worded similarly in the
1988 policy but placed in a different location. The provision was moved
into the policy section in the 1991 proposal to give greater emphasis
to the direction and thereby respond to the appeal decision's direction
to make the policy neutral.
Comment. There were 996 comments addressed to this provision of the
proposed policy. The word ``ensure'' was the focus of nearly all of the
comments. Respondents felt that use of this word, conveying certainty
of action, changed the intent of the 1915 Act language and would lead
Forest officers, upon determining any impact on ``full enjoyment,'' to
conclude that the permitted use should not continue. (It should be
noted that ``ensure'' was used in the provision in the 1988 policy.)
Some respondents pointed out that it would be impossible for a Forest
officer to ensure compliance with the Act. Other respondents stated
that the provision in the 1915 Act was not intended to discourage
continuation of the use. They pointed out that the Act does not
establish priority of use (recreation residence versus other public
uses), thus an equality, not an hierarchy, of use is implied.
Response. The Forest Service agrees that the word ``ensure'' is
inappropriate in this provision and that equality in the consideration
of uses is required. Further, the agency finds that the location of a
provision in FSM 2347.03 dealing only with recreation residences is not
correct. The subject of Manual section 2347 is ``Non-commercial
Recreation Use,'' a broad category encompassing privately built and
owned structures of which recreation residences are but one. Also
included in this category of use are private clubs and lodges,
houseboats, boat docks and wharves, and shelters. All of these non-
commercial uses come under the guidance of the 1915 Act. The agency
believes the guidance is appropriate but must be revised to reflect the
broader scope of the FSM section. Therefore, the provision is retained
but renumbered as paragraph 3 to reflect a more logical sequence of
direction. The provision has been rewritten to remove ``ensure'' and to
substitute ``non-commercial recreation sites'' for ``recreation
residences.'' The reference to the 1915 Act is also removed to avoid
redundancy, as this Act is cited in the list of authorities under which
term special use authorizations can be granted (FSM 2701).
3. Determination of Permit Renewal and Nonrenewal. The provisions
of the proposed policy dealing with continuation of the recreation
residence use, conversion to alternative public uses, and the analysis
and decision-making process involved in these actions brought forth the
largest number and most detailed comments. There were over 1,900
comments directed to these policy provisions, many of which were very
detailed, and offered lengthy revisions to the proposed policy. This is
to be expected as these provisions are at the core of the appeal
decision and are central to the holders' concern that they will be able
to continue the use. For ease of analysis, the discussion is separated
into the four parts of the proposed policy that cover this topic.
a. Recreation Residence Continuance. The applicable direction is
found at FSM 2347.03 and 2721.23e. The broad direction on continuation
of the recreation residence use (paragraph 3, FSM 2347.03 of the
proposed policy) stated: ``Continue to authorize those existing
facilities now occupying National Forest land under special use
authorization that (a) are consistent with management direction given
in the Forest Land and Resource Management Plan, (b) are at locations
where the need for an alternative public purpose has not been
established, (c) do not constitute a material, uncorrectable offsite
hazard to National Forest resources, and (d) do not endanger the health
or safety of the holder or the public.'' The proposed policy's guidance
on the decision to reissue the permit is found at FSM 2721.23e,
paragraph 1 as follows: ``The Land and Resource Management Plan (Forest
plan) provides direction for continuance of the recreation residence
use (FSM 1920). As Forest plans are revised, recreation residence use
shall be explicitly addressed in the plan through delineation of
management areas and associated management area prescriptions (FSM
1920).''
Comment. There were 136 comments received on these two provisions
of the proposed policy. The use of the Forest plan as the means of
determining recreation residence continuance is the most significant
departure the proposed policy makes from the 1988 policy. Most of the
respondents were suspicious of this change, stating their concern about
inconsistent or arbitrary local treatment of the residences, inability
to participate in the decision-making process involving Forest plans,
and the failure to use environmental analysis standards when amending
or revising Forest plans.
Respondents felt that the decision process on continuance was
flawed because continuance was determined by whether the use was
consistent with the Forest plan. They advocated a return to the process
described in the 1988 policy which stated the decision to continue the
use was to be made by a separate, free-standing analysis that did not
depend on the language of the Forest plan. In the proposed policy, the
consistency determination in the context of recreation residences would
be made on the basis of a comparison to the land and resource
allocations made in the Forest plan. If land allocated to the
recreation residence use was consistent, the use could continue. If not
consistent, the use would be analyzed to determine if it could be made
consistent or must be removed in favor of the proposed action, or
alternative public use.
Other respondents described the policy provision allowing
continuance of those existing facilities which ``. . . are at locations
where the need for an alternative public purpose has not been
established'' as a ``Pandora's box,'' since there are always
alternative purposes. They were concerned that the direction provided
no guidelines or criteria for use in weighing alternative uses of
National Forest land and thus would allow decisions which were
arbitrary and capricious. The respondents asked for a definition of
alternative public purpose.
Others opposed these provisions because they believed use of the
phrase ``continue to'' biased the decision to offer a new permit.
Finally, respondents felt that the determination of whether the use
should continue based on a policy promulgated by the agency's
Washington Office could result in arbitrary action by individuals
removed from the issue as it should be addressed. They suggested
instead that each location should be viewed on its own and not be part
of a nationwide policy. Conversely, some respondents felt the proposed
policy left too much up to the whims of local forest officials where
decisions could be made arbitrarily and capriciously without regard to
national policy.
Response. The proposed policy significantly changed the 1988
policy's direction in the way recreation residence continuance
decisions would be made. Making the Forest plan the foundation for the
decision to continue the use is a major departure from the ``analysis
of continuance'' process set forth in 1988 policy. Most permit holders
are not familiar with the forest planning process that produces the
individual National Forest Land and Resource Management plan. In fact,
many indicated they were unaware that a plan encompassing all
activities on the National Forest existed. Those that were aware of the
planning process often did not make the link between their permitted
use and the broad guidance set forth in the plan.
The agency recognizes the significance of this departure from
previous policy. However, it must be guided by statutory authority and
its own implementing direction. The National Forest Management Act of
1976 requires the agency to use an integrated, interdisciplinary forest
planning process to make the land and resource allocation decisions for
each National Forest. Further, section 6 of the 1976 Act requires that
all permits, contracts, and other instruments for the use and occupancy
of National Forest System lands shall be consistent with the Forest
plan. Thus, recreation residence use and continuance must be brought
into compliance with that direction.
Respondents' concerns that use of the Forest plan to guide permit
continuance decisions or determining alternative public purposes
reflects the lack of understanding of the planning process. The
planning policy sets forth clear direction to involve all affected
parties and the public when amending or revising a Forest plan. These
requirements are emphasized in the proposed recreation residence policy
which requires notification and involvement of holders and their
representatives (FSM 2721.23h, paragraph 2). The agency believes that
requirements that holders be involved in all actions affecting the
recreation residence use are adequately covered in the policy and will
not lead to inconsistent or arbitrary treatment of the use during
Forest planning.
Environmental analysis is the cornerstone upon which decisions by
local agency officials rest. Agency policy on environmental analysis at
FSM 1950 and FSH 1909.15 is clear and detailed. Actions which affect
the Forest plan, including those which implement the plan must be
supported by environmental documentation. Respondents concerns that the
recreation residence use will be adversely affected through a process
that they are not informed of or involved in must consider this policy
in its entirety and recognize that long-established agency policy would
not permit this to happen.
Use of the term ``alternative public purpose'' in the proposed
policy reflects the agency's recognition that the Assistant Secretary's
appeal decision required decisions on continuance to be made in a
neutral manner. The holders' desire for continued use cannot be
considered superior to other public uses but must be judged in the
context of the overall use of the land. The word ``alternative'' is
intended to convey the concept of equality of use instead of
superiority of one use over another. The agency recognizes that the
recreation residence use must be considered equally when considering
allocation of land and resources through the Forest planning process.
On the other hand, it does not, indeed, it cannot, place the use at a
higher level than other uses in the Forest planning process. It is the
Forest planning process which defines and limits alternative public
uses through allocation of land and resources. Alternative public uses
can only be those which the Forest plan defines. Thus, the phrase is
considered the most accurate way to portray the actions involved in
recreation residence continuance and will be retained in the final
policy.
The agency rejects respondents' concerns that the term ``continue
to'' in FSM 2347.03, paragraph 1, lends bias toward renewal of the
permit. The term is fully consistent with policy stating that the use
is a valid use of National Forest land. Further, it is limited by the
language which follows in the provision.
The agency also rejects respondents' objections to policy
promulgated at the national level which cannot adequately address local
conditions affecting the use, and, conversely, that such decisions
should not be made by local officials. The proposed policy balances
national policy on recreation residence use with a planning and
decision-making process made at the individual National Forest level.
This decentralized process is considered the most appropriate way to
manage these Federal lands.
Therefore, the agency will adopt the language of the proposed
policy at FSM 2347.03, paragraph 3 (renumbered as paragraph 2 in the
final policy), and FSM 2721.23e, paragraph 1, pertaining to continuance
of the use unless the use is at a location where an alternative public
purpose has been established through the Forest planning process.
Paragraph 1, FSM 2721.23e, has been edited for clarity and consistency
with the forest planning process.
b. Use Consistent With Forest Plan. The proposed policy at FSM
2721.23e, paragraph 2, provided guidance when making decisions on
continuance of the use. It stated: ``Decisions to issue new recreation
residence term permits following expiration of the current term permit
require a determination of consistency with the current Forest plan.
Make this determination by evaluating the extent to which continued
recreation residence use adheres to the standards and guidelines
contained in the management prescription for the appropriate management
area. Address continuation of recreation residence use on a tract or
group of tracts basis, not on individual sites.'' Subparagraph a then
sets forth direction when recreation residence use was consistent with
the current Forest plan. When the use was consistent with the plan, the
use would continue, a new permit issued, and the decision to issue
categorically excluded from environmental documentation, unless
``extraordinary circumstances'' were present that would merit analysis
of environmental effects. The procedural direction in FSH 41.23a
provided detailed instructions on issuing new permits when the use was
consistent with the Forest plan.
Note: The 1991 proposed policy advised that the agency was
currently revising its policies and procedures for complying with
NEPA and that the adoption of final NEPA policy could affect the
direction contained in the proposed policy relating to environmental
analysis and documentation. The final NEPA policy was adopted on
September 18, 1992 (57 FR 43180), and does affect this proposed
policy.
Changes in the recreation residence policy made necessary by the
final NEPA policy are noted in the following discussion.
Comment. There were 771 comments directed to this provision that
gives guidance where recreation residence use is consistent with the
Forest plan. While respondents favored the expedited process in issuing
a new permit, nearly all stated some degree of opposition to the
direction. Comments focused on the requirements for environmental
analysis as the basis for a decision to continue the use, particularly
the requirements relating to ``extraordinary circumstances.''
Respondents felt that recreation residences, having been in place for
many years, do not cause significant environmental effects and the
decision to issue a new permit should be categorically excluded from
environmental documentation. Respondents also suggested that requiring
environmental analysis was unnecessary, redundant, and costly. They
suggested that the requirement be severely limited and each decision to
prepare environmental documentation be reviewed by superior officials
before being implemented.
Respondents expressed concern that extraordinary circumstances,
described in the notice as including the presence of threatened or
endangered species or their critical habitat, flood plains, wetlands,
archaeological sites, or historic properties or areas, were present in
nearly every recreation residence tract, and thus would always trigger
further environmental analysis even though the recreation residence has
existed within such circumstances and without causing adverse impacts.
Respondents pointed out that the fact the use was consistent with the
Forest plan would be rendered meaningless because all uses would be
subjected to an environmental analysis or environmental impact
statement before a new permit could be issued. They felt that this
requirement was too open-ended and discretionary and would allow
generalities, such as open space, visual corridors, or general forest
areas to be defined as extraordinary circumstances. They recommended
that the presence of an assumed extraordinary circumstance should not
in itself preclude continuation of the use, or create a presumption of
inconsistency with the Forest plan, until analysis proves the
circumstance to be truly extraordinary and continued recreation
residence use a threat to the environment. One respondent suggested
that extraordinary circumstances be limited to those which are new and
did not exist in the period shortly before the time when a decision on
continuance is to be made, and that the presence of endangered species,
for example, in the area of recreation residences should not
automatically trigger the preparation of an environmental analysis or
impact statement.
The direction in FSH 2709.11, section 41.23a, providing procedural
direction on continuing the use and issuing a new permit, brought forth
comments cautioning against ``useless and unnecessary EA or EIS
studies.'' These respondents suggested that extraordinary circumstances
should not automatically require preparation of environmental analyses.
Other respondents suggested that the entire section 41.23a be removed
since the guidance prejudges, skews and appears to bias the process.
Response. The Forest Service agrees the proposed policy and
procedures applicable when recreation residence use is consistent with
the Forest plan is unnecessarily complex. It also agrees that
situations under which extraordinary circumstances would apply to
permit continuation are too broad and need refinement. When use is
consistent, the policy should provide an expedited process resulting in
a new permit. The Forest plan is the means by which environmentally
sensitive areas are identified and managed. The presence of
extraordinary circumstances should not force additional environmental
documentation unless it is clearly established that a material adverse
environmental effect could result by continuing the use.
Accordingly, the agency has substantially revised the proposed
policy at FSM 2721.23e, paragraph 2, and FSH 2709.11, section 41.23a.
This revision recognizes the public comments and the final revised NEPA
policy and procedures adopted by the agency in 1992. The NEPA policy
substantially clarified previous policy for excluding actions from
environmental documentation. Further, the agency has chosen to minimize
its direction on environmental documentation in the final policy and
guidance and instead refers to the NEPA policy found in FSH 1909.15.
Briefly, recreation residence uses that are consistent with the
Forest plan will, upon expiration of the current term permit, be issued
a new term permit. The environmental documentation supporting the
Forest plan will, in most cases, be sufficient for documenting the
decision to continue the recreation residence use.
When issuing new permits, a record of decision or decision notice
and finding of no significant impact would be prepared only if the
recreation residence use was not specifically approved in the Forest
plan decision document. Issuance of a new permit is an implementation
action of a Forest plan decision approving recreation residence use.
The NEPA compliance requirement is fulfilled by the Forest plan
environmental impact statement. Recreation residence use which has
changed since being found consistent with the Forest plan would require
further NEPA analysis and documentation. In most cases this analysis
would cause the action to fall within a category of actions excluded
from NEPA documentation.
An exception to the above may occur if the environmental
documentation supporting the decision to continue the recreation
residence use is more than 5 years old at the time of permit
expiration. This requirement is set forth in the agency's Environmental
Policy and Procedures Handbook (FSH 1909.15, sec. 18.03) and is based
on the Council on Environmental Quality's ``Forty Questions'' document.
The action necessary to issue the new term permit would commence
two years before permit expiration and the holder notified of the
action. New permits that continue the use would contain updated clauses
that reflect current Department of Agriculture regulations and other
Federal, State, or county laws applicable to the area covered by the
permit.
Therefore, the agency is adopting final policy as described above.
This is set forth at FSM 2721.23e, paragraph 1.
c. Use Not Consistent With the Forest Plan--Project Analysis. The
proposed policy at FSM 2721,23e, paragraph 2b, provided direction on
action to be taken when the recreation residence use was not consistent
with the Forest plan. Procedural guidance at FSH 41.23b described the
procedure to follow in conducting a project analysis. The recreation
residence use would be inconsistent when the lands currently authorized
for recreation residence use are allocated to other public uses by the
Forest plan. Continued recreation residence use would thus be
inconsistent with new management prescriptions, standards and
guidelines. This could occur when a Forest plan defines a management
area of the National Forest for developed recreation use and an
amendment to the plan changes this to threatened or endangered species
habitat. The recreation residence use would then apparently be
inconsistent with the new management area designation. In this case, a
``project analysis'' would be prepared to determine whether the use
could be accommodated along with the alternative public use, or must be
removed upon permit expiration.
The project analysis would identify a range of public uses
consistent with the Forest plan direction, including consideration of
continuing the recreation residence use, that would be compatible with
the management area designation. If this analysis indicates the
recreation residence use could continue, a decision would be made to
issue a new permit upon expiration of the current permit. Since
continuation of the use had been determined to be inconsistent with the
Forest plan, the plan would have to be amended to accommodate the
changed determination. If the analysis indicates that the use cannot
continue, the holder would be notified that a new permit will not be
issued upon expiration of the current permit. In this event, the holder
would receive at least 10 years of continued occupancy from the date of
notification and may be offered an alternative location, or in-lieu
lot, for the use.
Comment: There were 998 comments received on this provision of the
proposed policy. Many respondents were concerned that use of the Forest
plan to determine whether the recreation residence use should continue
was inappropriate because the plan could never focus on the specific
and different issues that a proper analysis of the use demands. Others
felt that in reality the decision on recreation residences would be
made in the plan and that the project analysis would only serve to
verify that decision. They felt that the phrase in the provision
``implement the new direction'' implied that a decision had already
been made. They recommended this provision be eliminated since it
assumes an inconsistency prior to a finding. Instead, they recommended
that new management direction be ``reviewed'' to emphasize that the
project analysis was not a sham.
Nearly all of the respondents commenting on this provision of the
proposed policy stated that the proper sequence of planning should have
the project analysis prepared before the Forest plan is amended or
revised and be the basis for the amendment or revision. This concern is
the basis for respondents' recommendation that a determination of
inconsistency be made only on the basis of a self-contained, site
specific project analysis that follows all environmental analysis
requirements. Respondents also expressed misgivings that the process
called for in the provision conveyed a bias against the use.
These concerns can be summarized by the comment of one respondent:
``The 1988 policy required a specific environmental analysis for any
decisions pertaining to `inconsistency' with the Forest plan. In the
draft policy inconsistency is now decided within the Forest plan
WITHOUT ANY EFFECTIVE RULES. This is just not reasonable and is
unfair.''
Several respondents expressed concern that recreation residence
permit holders would not be involved in the actions leading to adoption
of Forest plan amendments, or that their participation would not be
sought until the basic decisions on land use had been made. They asked
that permit holders be a part of the entire process.
Comments on the procedural guidance in FSH 41.23b for completing
project analyses focused on the addition of or emphasis on the factors
and considerations to be included in the analysis. Several suggested
recognition of environmental, economic and social costs of removing the
recreation residences. Others recommended that cost/benefit analysis of
removal be included in the analysis. Several respondents suggested that
the standards and guidelines for the project analysis were
substantially weaker in the proposed policy than those in the 1988
policy and recommended that the earlier language be restored so that
there was consistency between all National Forests. Many suggestions
were received that could be used to edit and clarify the proposed
guidance in FSH 41.23b.
Response: The respondents to this section of the proposed policy
did so under a distinct disadvantage. The proposed policy describing
Forest planning, NEPA analysis, and public involvement processes
affecting the recreation residence use was based on more complete,
overall guidance set forth elsewhere in the Manual and Handbooks. The
proposed direction for this specific use, therefore, was supplemental
to that overall guidance. Respondents were not aware of or did not have
access to this overall guidance. They sought to resolve their concerns
or objections by recommending more complete descriptions of the
processes or clarification of procedures relating to recreation
residence continuance. Thus, many of the comments summarized above
could be responded to by simply stating that the concern is thoroughly
treated elsewhere in FSM or FSH.
The agency is sympathetic to the respondents' dilemma. However, it
disputes the contention that actions affecting recreation residences
during forest planning occur without any effective rules to guide them.
The rules (direction) are clear and thorough. The agency's dilemma is
that its directives policy prohibits repetition and redundancy in
manual and handbook material for the sake of emphasis or clarity.
Direction guiding the forest planning process is found in FSM 1920.
To resolve this dilemma, the agency has placed references at
appropriate places in the final policy so that local agency officials
and holders are aware of overall direction that influences the specific
direction on recreation residence use. And, the agency believes that
respondents' concerns about forest planning, consistency
determinations, and applicability of NEPA, will be resolved as holders
become more knowledgeable about the forest planning and environmental
analysis processes. Most respondents acknowledged that the recreation
residence use should be recognized in the Forest plan. Likewise,
holders should recognize that it is in their interest to be involved in
the forest planning process, not only to protect their interests in
their recreation residences, but to demonstrate that they are part of
the National Forest community and interested in its overall management.
The Forest Service believes this final policy will encourage holder
participation in the forest planning process.
Agency policy on forest planning and NEPA evaluation does not allow
a decision to remove recreation residences to be made by the Forest
plan. The process for implementing a Forest plan, explained in FSH
1902.12, requires that any use that appears to be inconsistent with new
management direction must be analyzed and evaluated before any decision
is made to discontinue that use. In section 2721.23e, paragraph 1b, of
the final policy, the agency has clarified this point by revising the
heading to read ``Use Apparently Not Consistent With the Forest Plan.''
This revision is intended to reinforce the point that an inconsistency
determination does not result in removal of the use, only that such
action is possible. A decision on removal of the use cannot be made
until a project analysis is completed.
Project analysis should not precede forest planning. The overall
direction contained in a Forest plan is the foundation upon which all
land and resource activities of the National Forest are based. The
Forest plan promotes more integrated consideration of all land and
resource management activities. The direction in the proposed policy
providing for project analysis following implementation of the Forest
plan and identification of apparent inconsistency remains unchanged in
the final policy.
Respondents' concerns that permit holders would not be involved in
Forest planning is unfounded. Overall direction in FSM 1950, FSH
1909.15, and 36 CFR Part 216 requires local Forest Service officials to
seek the views of the public, including holders of authorizations to
use National Forest land. Further, the direction in the proposed policy
at FSM 2721.23h and FSH 2709.11, section 41.23b, paragraph 1 would
require local officials to involve permit holders in activities
involving Forest plan amendments and revisions, implementation of
plans, and project analyses. The agency believes this direction is
adequate to ensure holders' awareness of any action affecting their
use. Thus, the proposed policy in this regard remains unchanged in the
final policy.
The guidance in section 41.23b has been selectively revised to
recognize the suggestions of several respondents. The first sentence of
the section has been rewritten to reflect that Forest plan amendment or
revision does not necessarily make the recreation residence use
inconsistent with new management direction. Rather, it reflects that
continued use under the new management direction is uncertain and a
site specific project analysis is required to verify the inconsistency.
Paragraph 2 of this section of the proposed policy, titled ``Analysis
Documentation'' and describing the content of the project analysis
report and NEPA documentation, is revised in the final policy to
require information on applicable resource conditions to be included in
the report. Paragraph 3a(4), requiring a comparison of benefits and
disadvantages of the proposed alternative public use and the recreation
residence use, has been revised in the final policy to include
consideration of the cost of removing the recreation residence.
Paragraph 4 of FSH 41.23b of the proposed policy, describing the
project analysis decision and documentation, has been extensively
revised to clarify the process by which a decision is reached. Three
possible decisions are outlined: (1) If the project analysis results in
a decision to amend the Forest plan such that continued use will not be
inconsistent with the proposed alternative use, a new term permit would
be issued upon permit expiration; (2) if the project analysis results
in a decision to amend the Forest plan such that the recreation
residence use is in some degree inconsistent with the proposed
alternative use but does not conflict with it, or the proposed
alternative use can accommodate some or all of the recreation residence
use, appropriate modifications would be made to the current permit and
new term permits for the applicable lots would be issued; or (3) if the
project analysis results in a decision that the recreation residence
use remains inconsistent with the Forest plan and cannot be
accommodated with the proposed alternative use, a decision would be
made that the recreation residences are to be removed. This revision
adds a third possibility to the project analysis decision where the use
is in apparent conflict but can be accommodated with the proposed use.
Paragraph 5 of FSH 41.23b, titled ``Decision Notification,''
presents the requirements to be followed in notifying holders and other
interested parties of the project analysis decision. Two items are
added to those listed in the proposed policy: (1) Notification of
whether in-lieu lots will or will not be made available, and (2)
notification that annual fees will be adjusted during the final 10
years of use. The remainder of the paragraph has been edited for
clarity.
d. Project Analysis Decision Review. The proposed policy at
2721.23e, paragraph 2c required the authorized officer to review a
project analysis decision two years prior to permit expiration, if that
decision was more than five years old. Handbook guidance at 41.23b,
paragraph 6, described the procedure by which the project decision
would be reviewed. The review would determine if changes in resource
conditions required reconsideration of the decision. Holders and
interested publics would be notified of the review. If the review
indicated no change in resource conditions, the original decision would
be implemented. If conditions had changed, a new project analysis would
be made to determine use of the lot. A project analysis decision review
would not be appealable.
Comment. Few respondents commented on this provision although a
similar provision at FSM 2721.23a, paragraph 11, raised a concern among
several respondents that the holder would not have an opportunity to be
heard in this review.
Response. The project analysis decision review is intended to
ensure that the actions which resulted in the decision remain
applicable when the permit is about to expire since 8 to 10 years would
have elapsed since the decision was made. This could prevent removal of
a recreation residence when there is no longer a need for the
alternative public use. The agency intends that the review be
undertaken with the full knowledge and participation of the holder. It
emphasizes that the direction in 2721.23e makes it clear that holder
involvement in the review is required. The proposed policy is
considered to be fully adequate and is adopted as final policy.
e. Permit Decision Process (Diagram). The proposed policy, in
Exhibit 01, section 41.23c, presented in diagrammatic form the process
described in section 41.23a and b by which a decision is reached to
continue the recreation residence use or convert the use to an
alternative public use.
Comment: Eight respondents identified problems with the chart. They
pointed out that the process shown when a project analysis decision
allows the recreation residence use to continue (even though it had
been found to be inconsistent with the Forest plan), does not agree
with the text describing that process. The respondents suggested that
when the use is allowed to continue it should not be subject to further
review and analysis. Instead, the use should be considered as
consistent with the Forest plan and the decision process should move
directly to issuance of a new permit. In terms of the diagram, the
arrow from this box should move left to the line showing consistency
with the Forest plan instead of downward to the box showing decision
review.
Response: The Forest Service agrees with these respondents and has
revised the diagram accordingly. Readers should recognize, however,
that revisions in the direction and procedural guidance for continuance
and removal of the use, discussed earlier in this notice, have also
required revisions to the chart. The diagram appears in the final
policy as section 41.23c.
4. Permit Issuance and Term. The proposed policy at FSM 2347.1,
paragraph 3, and at FSM 2721.23a, paragraph 9, stated that permits for
recreation residence use would be issued for a maximum of 20 years.
Paragraph 10 of FSM 2721.23a provided direction for permit issuance
following a decision to convert the lot to an alternative public use.
In this event, the current term permit would be allowed to expire and a
new term permit issued for up to 10 years to satisfy any additional
time because of the 10-year notification requirement.
Comment: There were 224 responses to these permit issuance and term
provisions. Most respondents supported the 20-year term for recreation
residence use, and the 10-year notification in case of conversion to an
alternative public use. A few respondents preferred 30-year permits.
Others objected to the 10-year notification with continued occupancy
provision and the granting of additional time beyond the originally
authorized term to satisfy notification requirements, stating that the
holder accepted the original term and provisions, and should not
receive these favorable considerations.
Response: The Term Permit Act of March 4, 1915, authorizes terms up
to 30 years. The Forest Service's long-standing policy has been to
issue permits for 20-year terms, and if the use is to be terminated,
the additional 10 years granted will keep the total length of the
permit within the statutory limit. Also, specifying a maximum term of
20 years provides local agency officials flexibility in establishing
length of terms to accommodate local needs. For example, if the
official wished to have all permits on an administrative unit expire in
the same year for efficiency in administration, a term of 18 years may
be needed to match terms of permits issued earlier. The agency does not
agree to elimination of the 10-year notification requirement or the
provision providing additional occupancy when the use is to be removed.
The investment in the recreation residence and the length most have
been in existence make the agency's policy on notification and tenure
fair and equitable. Readers are reminded that the agency does not pay a
permittee for the value of the improvements when a permit expires under
its own terms and must be removed. The agency is satisfied that a 20-
year term for recreation residence term permits is appropriate and will
adopt this provision in the final policy. However, to clarify that
shorter terms may be dictated because of permit expiration and
conversion of the lot to another public purpose, the provision is
modified to reflect this exception to the 20-year term. This direction
ensures compliance with the Assistant Secretary's appeal decision
concerning indefinite tenure. This revised policy is also consistent
with the final policy provisions requiring that decisions on
continuance or removal of the use be based on the direction in the
individual National Forest plan.
5. Annual Fees in Event of Nonrenewal. The proposed policy at FSH
2709.11, section 33.2, responded to the appeal decision's direction to
reconsider the 1988 policy's direction for determining fees when a
holder is placed on notice that a new permit will not be issued; that
is, when the permit is placed on tenure. Three provisions in this
section were examined in the proposed policy. The opening paragraph of
this section stated that fees would be reduced 10 percent yearly during
the 10-year notification period. This maintained the provision in the
1988 policy. The second provision (numbered paragraph 1) provided that
in the event the decision to remove the recreation residence was
reversed and the holder was given a new 20-year term permit, the Forest
Service would recover all fees foregone while the permit was under
notice it would not be renewed. This changed the provision in the 1988
policy which provided that 50 percent of the fees would be recovered.
The third provision (numbered paragraph 2) provided that in the event
of a reversed decision and a new permit was issued with a term of less
than 10 years, fees foregone would not be recovered, but the fee would
be reduced by 10 percent for each year the permit was under tenure
notice (for example, fees for a 6-year tenure would be 60 percent of
the full fee). This maintained the policy set forth in the 1988 policy
provision.
Comment: There were 84 comments on these provisions of the proposed
policy. Most respondents asked that the 50 percent fee recovery
provision of the 1988 policy be reinstituted. They stated that the
market value of the use is reduced when permits are placed on tenure,
and, as the agency is required by law to charge fees based on fair
market value, the 50 percent recovery is more than fair because the
recovery amount should be zero. Others pointed out that the Forest
Service's explanation that no precedent could be found in the private
market providing for 50 percent recovery and therefore requiring full
repayment of foregone fees was true because the private market would
not recover foregone fees. On the other hand, several respondents asked
why a holder should be entitled to reduced fees since it is not common
practice in the private real estate market for a lessor to reduce
rental fees when not renewing a lease, especially when the improvements
must be removed by the lessee. One respondent asked whether fees for
permits under tenure were subject to the same annual index adjustment
as permits not under tenure.
Response: The agency decision in the 1988 policy to reduce fees
when permits are placed on tenure was based on its understanding of
common practice in the private real estate market. Reexamination of
this question in view of the appeal decision does not provide
information to contradict this earlier decision. The agency is not
persuaded by respondents' statements contradicting its understanding of
the private market. Therefore, the provision to reduce fees 10 percent
for each year the permit is under tenure will be maintained in the
final policy. (Section 33.2)
The agency based its decision to recover all fees foregone when a
new 20-year permit is given for a use formerly under tenure because it
could not confirm this was a common practice in the private real estate
market. It also received legal advice that it had no authority to
forgive fees foregone in this instance. Upon reexamination of this
issue for preparation of this final policy, it again was not able to
confirm that not recovering fees foregone is standard practice in the
private market. Thus, the agency will keep this provision in the final
policy. (Section 33.2, paragraph 1)
The agency is also maintaining the provision from the proposed
policy that when holders with permits on tenure are given new permits
with terms of 10 years or less past fees foregone are not recovered and
fees for the new term are reduced 10 percent a year. Holders who
receive an additional period of use but do not get a full 20-year term
permit do not have the full value of the use and thus should not pay a
full fee. This provision is adopted consistent with the provision to
reduce fees when permits are placed on tenure. The second sentence of
this provision has been edited to clarify its intent. (Section 33.2,
paragraph 2)
Readers should note that the third paragraph in this section,
describing action to be taken when holders with permits on tenure are
given new permits with terms of 10 to 20 years, was not revised in the
proposed policy and remains identical to the language in the 1988
policy. In this case, fees are to be recovered in full.
6. Offering of In-Lieu Lots. The appeal decision faulted language
in the 1988 policy that made the offering of in-lieu lots mandatory to
holders who have received notification that a new permit would not be
issued or whose permits have been terminated. (FSM 2347.1,6; FSM
2721,23a,13; FSM 2721.23f; FSH 41.23c.)
As explained in the 1991 notice of proposed policy, the intent of
the 1988 policy was to make the offering of in-lieu lots discretionary.
It was use of the word ``shall'' in one sentence of the policy that
conveyed the impression that offering of in-lieu lots was mandatory. In
addition, however, the appeal decision expressed concern that making
in-lieu lots available to holders receiving notice that their use was
to be terminated or that they would not receive a new permit limited
agency management discretion in determining use of National Forest
land. Therefore, each of the four provisions in the 1988 policy dealing
with the offering of in-lieu lots was examined. As a result, the 4
provisions dealing with in-lieu lots were revised in the proposed
policy.
The overall policy on offering in-lieu lots to holders who had been
notified that a new permit would not be issued or whose permit was
being terminated prior to expiration (except when the termination is
for noncompliance) was stated at FSM 2347.1, paragraph 6, of the
proposed policy. This provision directed agency officials to determine
the availability of in-lieu lots for eligible holders. It described
sites available for in-lieu lot purposes as those in nonconflicting
locations in established recreation residence tracts within the
National Forest containing the recreation residences to be removed or
in established tracts in adjacent National Forests. Lots appropriate
for in-lieu purposes were undeveloped lots within or adjoining
established recreation tracts not needed for other public purposes and
lots formerly occupied and now vacant. This provision also directed
that new recreation residence tracts could not be established for in-
lieu lot purposes. This reversed the 1988 policy which stated new
recreation residence tracts could be established for this purpose.
Direction in FSM 2721.23a of the proposed policy, provided that in-
lieu lots could be offered when a recreation residence was destroyed or
substantially damaged by flood, avalanche, or massive earth movement
and the holder was not allowed to rebuild. The 1988 policy stated that
every reasonable effort should be made to offer in-lieu lots in this
event.
The proposed policy in FSM 2721.23f, presented direction in cases
of nonrenewal of permits and conversion of lots to alternative public
purpose. It stated the lots may be offered if available and not needed
for alternative public purposes. The 1988 policy provided that every
reasonable effort should be made to offer the lots.
The guidance in FSH 41.23c of the proposed policy, gave detailed
procedures on the offering of in-lieu lots. The offer would be made
when notice was given that a new permit would not be issued. If a lot
became available within 12 months of the notification it could be
offered then. Priority was to be given to lots in the same recreation
residence tract or an expansion of that tract. Holders would be allowed
90 days to accept the offer of an in-lieu lot and upon acceptance the
lot would be reserved for that holder and a new permit issued. A fee
would not be charged until construction of the improvements began. The
lot reservation would expire if the holder failed to occupy the in-lieu
lot on agreed upon schedule. Holders accepting offers could continue to
use the current lot until the permit expired, but they should be
prepared to move to the new lot 24 months prior to permit expiration.
If accepted by the previous owner, the offer of an in-lieu lot would be
extended to a new owner.
The proposed Handbook guidance differed in several respects from
the 1988 policy. The proposed guidance limited availability of lots to
those becoming available to 12 months. Tracts could not be established
specifically for in-lieu lot purposes. Holders were to be given a new
permit when the offer of an in-lieu lot was accepted, a new
requirement. Fees were to be charged when construction began rather
than when improvement of the lot began, a clarification. Holders were
to be prepared to move within 24 months of permit expiration rather
than when the current use was removed, also a clarification.
Comment. There were 359 responses to the in-lieu lot provisions of
the proposed policy. Several respondents felt that the Assistant
Secretary's appeal decision required only that the 1988 policy be
changed to assure that the offering of in-lieu lots was not mandatory.
Respondents overwhelmingly objected to the changes made by the proposed
policy from the 1988 policy. Summarized, the respondents felt that the
number of sites available for in-lieu lots available should be as large
as possible and should include authority to establish new tracts for
this purpose. The general belief was that a weak in-lieu lot program,
when coupled with a policy of no new tracts for this purpose, would,
through attrition, eventually lead to removal of all or most recreation
residences. A much smaller number of respondents maintained that the
offering of in-lieu lots should be discretionary and that no new tracts
should be established for this purpose.
Respondents also objected to the removal of the phrase ``every
reasonable effort'' when directing local officials to provide in-lieu
lots to terminated or nonrenewal permits. They felt that this subtle
change in wording reversed long-standing Forest Service policy to offer
in-lieu lots in nonconflicting locations. They recommended that the
proposed policy be strengthened or the language of the 1988 policy be
restored.
Another group of respondents felt that the proposed policy ignored
the Assistant Secretary's appeal decision. They felt that any lots
available for in-lieu lots should be made available instead to the
general public for recreation residences. Their view was that the
holder whose permit expires and is notified that a new permit will not
be issued acquires no more rights to available lots than any other
member of the public and should not receive any preferential treatment.
Generally, this group of respondents felt the entire policy of offering
of in-lieu lots should be deleted but if retained should be limited
strictly to lots available within existing recreation residence tracts.
Responses to the proposed policy provision on in-lieu lot
availability following destruction of the improvements by catastrophic
event (FSM 2721.23a, paragraph 13) reflected a similar division of
views as was found in the overall policy. Some felt allowing a holder
to rebuild the improvements or to receive an in-lieu lot extends the
use indefinitely and is contrary to the appeal decision. Others felt
the proposed policy was not clear with regard to when rebuilding the
improvements would be ``consistent'' with Forest plan. Several
suggestions were made to clarify this provision. Many respondents
commented on the inclusion of fire in the list of catastrophic events
to which this provision applies. This had been suggested in the
September 1989 Advance Notice of Proposed Policy. Respondents
overwhelmingly opposed the listing of fire in this provision. They felt
the risk of loss of the recreation residence from fire is inherent in a
forest setting and thus should not be cause for permit termination.
Respondents commenting on the proposed Handbook direction at FSH
41.23c pointed out what they believed was more restrictive language
than in the 1988 policy. Specifically, they cited the 12 month limit on
offering an in-lieu lot, the 90-day limit on holders acceptance of the
lot offer, and the requirement that occupancy of the in-lieu lot begins
when construction begins.
Response. The Forest Service does not agree that the reformulation
of the in-lieu lot provisions of the 1988 recreation residence policy
should be limited to the question of whether the offer is mandatory or
discretionary. The appeal decision questioned the policy on offering of
in-lieu lots and directed that all provisions of the policy dealing
with this issue be stayed from implementation and reconsidered. The
agency, in its September 1991 proposed policy, modified it to respond
to the appeal decision's concern that the use was being perpetuated
when in-lieu lots were offered.
Under policy stated at FSM 2347.1, the agency affirms that
recreation residences are a valid use of National Forest System lands
and an important component of the overall National Forest recreation
program. It also acknowledges that there may be circumstances, albeit
very limited, where this use is not consistent with the overall
management direction for the land and the recreation residence use must
be converted to an alternative public use. When these circumstances
occur, however, the agency believes that holders of these uses should
not be subjected to the loss of the use if reasonable options are
available to accommodate the use elsewhere. Thus, it is maintaining its
long-established in-lieu lot provisions in the final policy.
The agency does recognize that certain provisions in the proposed
policy limited the scope of the 1988 policy and has reconsidered
several provisions. In FSM 2347.1, paragraph 6, the first sentence is
revised to read ``Although provision of an in-lieu lot is not required,
make a reasonable effort to provide a lot to holders whose lots will be
converted to an alternative public use and have received notification
that new permits for those lots will not be issued, or who have
received termination notices (except termination for noncompliance)
(FSM 2721.23e).''
The agency is maintaining the provision in the proposed policy that
prohibited establishment of new tracts for in-lieu lot purposes.
However, the agency points out that it is possible under the revised
second sentence of this provision to expand a recreation residence
tract in order to relocate the use to accommodate a change in land use.
Such could happen when a river is designated as a Wild and Scenic River
and recreation residences located a few feet from the riverbank are
moved several hundred feet back from the river to accommodate public
use along the riverbank. The third sentence of this provision is
clarified to identify locations suitable for in-lieu lots to include
undeveloped lands, and formerly developed and withdrawn recreation
residence lots in or adjacent to established recreation residence
tracts.
The proposed policy at FSM 2721.23a, paragraph 13, describing
action to be taken when a recreation residence is destroyed or
substantially damaged by catastrophic event, is revised to clarify when
improvements could be rebuilt or the permit terminated and in-lieu lot
available.
The proposed policy at FSM 2721.23f affirmed the overall in-lieu
lot policy stated at FSM 2347.1, paragraph 6, in connection with the
policy on continuation of recreation residence use. The language in
this provision has been revised to be consistent with the overall
policy.
The language at FSH 2709.11, section 41.23c of the proposed policy
provides the procedural guidance for implementing the overall policy on
offering in-lieu lots. Paragraph one of this section limited the
availability of lots for in-lieu lot purposes to 12 months following
notification of the holder that a new permit would not be offered. The
agency finds that this limitation is inconsistent with the policy
requiring a 10-year notification to the holder. Lots which come
available during that 10-year period should be available as in-lieu
lots if not otherwise needed for other public purposes. Thus, the
agency has restored the language of the 1988 policy as follows: ``If
lots do not become available until later, offer them then.'' Paragraph
3 allowed the holder 90 days from the date of a joint inspection to
accept the offer of an in-lieu lot. This has been clarified to require
both actions--arranging a joint inspection and providing 90 days to
decide. The paragraph is also clarified to require the 90 day period to
occur while access to the lot is possible. Paragraph 4 required that a
new permit be issued when a holder accepts the offer of an in-lieu lot.
The agency recognizes that his means the holder will have two permits
for recreation residence use for a limited period of time. However,
this provision has been kept in the final policy to be consistent with
overall special use regulations which require all users of National
Forest land to have a permit.
The agency recognizes that a holder may pay annual fees on both
permits if the current use is kept while the use on the in-lieu lot is
being constructed. Thus, it has inserted guidance that a partial fee
waiver under existing agency policy may be appropriate on the in-lieu
lot.
Readers are also advised that for consistency in terminology, the
word ``lot'' replaces the word ``site'' throughout the policy when
referring to in-lieu locations.
7. Termination During Term of Permit. Three provisions of the
proposed policy discussed actions to be taken when a recreation
residence permit had to be terminated before its term expired. The
overall policy at FSM 2347.1 listed four reasons for terminating a
permit: (1) When it is in the public interest; (2) when there is an
uncorrected breach of a permit provision; (3) when the site has been
rendered unsafe by catastrophic events; and (4) when there is other
cause as provided in 36 CFR 251.60. In adding this language, the
proposed policy removed a provision of the 1988 policy that required
termination actions to follow the same procedures established for
permit continuation or nonrenewal. Termination actions would follow
procedures for the four listed events, rather than for those procedures
for continuance or nonrenewal as the 1988 policy provided.
Direction at FSM 2721.23a, paragraph 16, of the proposed policy
reflected revisions to the overall policy, stating termination could
occur only in accordance with applicable regulations and the terms and
conditions of the permit. It also required the authorized officer
(Forest Supervisor) to submit a proposed termination for review by the
next higher official (Regional Forester). This review would only
examine the adequacy of the analysis and documentation. If deficient,
the proposed action would be returned to the authorized officer for
correction and reconsideration. This provision also proposed use of the
term ``monies'' in place of ``appropriations'' as used in the 1988
policy to describe the requirement that the Government must pay for the
holders improvements if terminating a permit before expiration of its
term, except when termination is the result of breach of the permit's
provisions.
The proposed policy at FSM 2721.23i gave direction only for
termination actions resulting from noncompliance of the terms and
provisions of the permit. It required written notice to the holder and
a reasonable period to correct the violation. The action could be taken
only if noncompliance continues after the holder receives notice and
the period allowed for correction. This provision was nearly identical
to the 1988 policy.
Comment. There were 5 responses to these provisions of the proposed
policy. Respondents felt the phrase ``in the public interest'' was
vague and apparently confused the phrase with direction elsewhere in
the proposed policy dealing with permit expiration and alternative
public use. They felt that termination should occur only when covered
by the Forest plan and other alternatives to removal of the use
considered. Most of the respondents agreed that termination during the
permit term should occur only when funds are available to purchase the
improvements. They agreed that the word ``monies'' is preferable to the
word ``appropriations.'' One respondent, however, felt that payment for
the holder's improvements should be based on the cost of the
improvements less depreciation.
Commenting on the direction in FSM 2721.23a, paragraph 16, one
respondent suggested that ``applicable regulations'' should be
specified. Most of the respondents agreed that proposed termination
actions by the Forest Supervisor should be reviewed by the Regional
Forester but suggested that the standards for analysis and
documentation for the proposed termination should be made clear.
Response. Readers are reminded that the agency, in seeking
consistency in policy terminology, has substituted the word revocation
for the word termination when describing actions that end a permit
before the end of the term specified in the permit. Further, the word
termination is used to describe the cessation of a permit as a result
of a fixed or agreed-upon event, which would include reaching the end
of the term specified in the permit. With this in mind, readers are
advised that revocation of the permit during its term and termination
of the permit are two separate and distinct actions, each unrelated to
the other. Revocation of the permit occurs when one of the four actions
listed in FSM 2347.1, paragraph 5, is triggered. Revocation of the
permit when in the public interest is not an action resulting from
direction in the Forest plan. Rather, it results from an urgent and
pressing need to reclaim the land for another public use before the
action can be considered through the Forest planning process and the
procedure for considering alternative public uses can be implemented.
For example, the construction or relocation of a public highway may
require removal of the recreation residence because the only feasible
right-of-way is on land occupied by this use. Authority to revoke a
permitted use before the permit term is completed is found at 36 CFR
251.60. This citation is added to this provision in the final policy.
It is the need to reclaim the land before completion of the permit term
that requires the Government to pay for the improvements that must be
removed.
The Forest Service recognizes that an action to revoke a permit
before completion of the term must be done under a procedure that
ensures fairness and equity to the holder. It has revised paragraph 5
in the final policy to clarify that revocation would occur only when
there is an urgent need to use the lot and the forest planning process
cannot be used.
The agency also recognizes the concern of respondents that
revocation actions be reviewed by a higher agency official. However, it
must point out that to maintain the integrity of its current appeal
regulations it cannot permit the higher level official to review a
decision before it is made. When a Forest Supervisor's decision is
appealed, the Regional Forester is the reviewing officer. The language
in the proposed policy on review of revocation actions will be
maintained in the final policy.
The agency believes that use of the word ``monies'' is appropriate
and will retain the term in the final policy. The agency does not agree
that payment for the improvements be based on the holders cost less
depreciation and will retain the method set forth in the term permit.
Readers are advised that the procedure for revoking a permit when
in the public interest and when the holder is found to be in
noncompliance with the permit terms is set forth in part VIII of the
term permit.
Revised Special Use Permit for Recreation Residences
The Assistant Secretary's appeal decision voided certain clauses of
the term special use permit used to authorize recreation residences on
National Forest System lands and adopted with the 1988 policy. Holders
who had been offered and accepted these permits in 1988 were notified
by letter that the clauses were voided and temporarily removed from the
permit and would be replaced upon adoption by the agency of a final
reformulated policy. The voided permit provisions were: Part VI.C.2,
part IX.B, C, D, and E, and part X.B. The October 10, 1991, notice
displayed the term permit in its entirety with the affected clauses
reformulated to be consistent with the revisions to the proposed
policy.
There were 346 comments received on the proposed permit. Nearly all
of the responses were directed to permit clauses not affected by the
appeal decision. The Federal Register notice explained that only policy
provisions, and permit clauses, affected by the appeal decision were
subject to review and reformulation. Hence, only those comments
directed to permit clauses affected by the adoption of the final policy
were considered in this analysis. These were considered with the
comments made to the corresponding parts of the policy and procedural
guidance.
Permit clauses are derived from basic statutes, regulations, and
policy. Thus, in reformulating the policy for administering recreation
residences, the agency must also revise the permit that is derived from
this policy. Changes made to the policy require corresponding changes
to the permit. This has been done in the adoption of this final policy.
The reformulated permit is printed in its entirety at the conclusion of
this notice (Exhibit 1 to FSH 2709.11, section 54.1). Permit clauses
revised as a result of the reformulation of the recreation residence
policy as described in this notice are printed in italic. Readers are
advised that holders of permits containing voided clauses will be sent
new clauses or new permits upon adoption of this final policy. New
permits will contain the revised clauses but are identical in all other
respects to the permit accepted in 1988.
Revision of Dispute Resolution Provisions
The October 10, 1991, Federal Register notice provided information
on the agency's policy to resolve disputes concerning recreation
residence permit administration (located at FSM 2721.23f in the 1988
policy). It pointed out that revision of the Department of Agriculture
administrative appeal regulations made on January 23, 1989 (54 FR 3342)
created a conflict with the dispute resolution provisions adopted in
the 1988 policy. Revision of these provisions, although not addressed
in the appeal decision, was necessary.
The proposed policy at FSM 2721.23h provided direction to reduce
conflict between holders and the agency by providing holders with the
opportunity to participate in an issue resolution process. Proposed
paragraph 1 of this policy required agency officials to consult with
holders and their representatives, where practicable, before issuing
written decisions on permit administration in order to reach a common
understanding and agreement. Proposed paragraph 2 encouraged holder
involvement in the public involvement process for Forest planning,
project analysis, and the permit issuance analysis process (FSM
2721.23e). This paragraph also encouraged agency officials to meet with
holders and their representatives to discuss and resolve issues prior
to issuing a decision. Proposed paragraph 3 provided guidance on
resolving actions that have been appealed, directing that the
opportunities provided in the appeal regulations (36 CFR parts 217 and
251) be utilized by the authorized officer to resolve the appeal issues
by means other than review and decision on the appeal.
The Forest Service has carefully considered the direction in the
proposed policy in its preparation of this final policy and determined
that it adequately conveys its intent to resolve disputes with holders
on recreation residence permit administration. Therefore, it is
adopting without change the direction in the proposed policy (FSM
2721.23h).
Readers are advised that further revisions to the appeal
regulations occurred on April 13, 1993 (58 FR 19369). That revision
encourages participation in the agency's public involvement processes
by expanding opportunities for pre-decisional involvement of the public
in Forest Service decisionmaking. A new part 215 was added to the
regulations that would give the public opportunity to comment, prior to
issuance of a final decision, on proposed actions that implement
National Forest land and resource management plans. Parts 217 and 251,
subpart C, of the regulations continue in effect. This final recreation
residence policy at FSM 2721.23h was examined in light of the new
appeal regulation and found to be consistent.
Clarification of Other Provisions of the Policy
In the February 15, 1989, appeal decision, the Assistant Secretary
directed the Forest Service to clarify procedures by which annual fees
are determined for recreation residence use. Specifically, the agency
was required to explain its rationale in adopting 3 components of the
fee system: (1) Use of the period 1978-1982 as the base period for
determining current fees, (2) Use of an index, the Implicit Price
Deflator-Gross National Product (IDP-GNP), to adjust fees annually to
current fair market value, and (3) Use of a factor of 5 percent applied
to the appraised value to determine the annual fee.
The Supplementary Information section of the October 10, 1991,
Federal Register notice containing the proposed policy provided
information on these three components of the fee policy. Readers were
advised that the information was to be considered as supplemental, or
background, information to the direction and procedural guidance
appearing in the policy at FSM 2721.23d-Fee Determination and FSH
2709.11, chapter 30, section 33, Recreation Residence Fees. The
information in the notice emphasized that the agency is required to
obtain fair market value for the use of the Federal lands. Fair market
value is determined by appraisal or other sound business management
practice, such as market analysis or competitive bid. Annual fees for
recreation residences are determined by appraisal. A factor of 5
percent is applied to the appraised value to determine the annual fee.
There were 55 responses to this information, which generally
supported the information presented. There was some disagreement with
the use of 5 percent of appraised value to determine the annual fee,
the respondents stating that the factor should be higher. Two
respondents felt the Consumer Price Index (CPI) should be used instead
of the IPD-GNP. Others felt the adjustment, as a national index factor,
failed to recognize depressed local real estate market conditions. As a
result, fees were escalating upward that should have been steady or
declining.
The Forest Service believes that the information presented in the
notice accurately described the rationale used to develop the fee
determination procedure in the 1988 policy, and that the information
reflects current agency direction and policy. Therefore, the agency is
adopting the explanation presented in the notice as its response to the
appeal decision's direction to present the rationale for adopting the
period 1978-1982 as the annual fee base period, the use of the IPD-GNP
as the annual fee adjustment factor, and the use of 5 percent applied
to appraised values to determine annual fees.
Having considered the comments received in response to the October
10, 1991, notice of proposed policy and having reconsidered the 1988
recreation residence policy for consistency with applicable law and
regulation, the Forest Service is adopting a revised recreation
residence policy that it believes is fully responsive to the Assistant
Secretary's appeal decision and to the concerns of holders and other
interested parties. The full text of the recreation residence policy
and procedural guidance containing the revisions described in this
notice as it would appear in the Forest Service Directive System is set
out at the end of this notice.
Readers are advised that the current interim recreation residence
policy will no longer be in effect upon adoption of this revised
policy.
Controlling Paperwork Burdens on the Public
This policy will not result in additional paperwork not already
required by law or not already approved for use. Therefore, the review
provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3507) and
implementing regulations at 5 CFR 1320 do not apply.
Regulatory Impact
This final policy has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. It has been
determined that this is not a significant rule. This rule will not have
an annual effect of $100 million or more on the economy nor adversely
affect productivity, competition, jobs, the environment, public health
or safety, nor State or local governments. This rule will not interfere
with an action taken or planned by another agency nor raise new legal
or policy issues. Finally, this action will not alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients of such programs. Accordingly,
this final policy is not subject to OMB review under Executive Order
12866.
Moreover, this final policy has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been
determined that this action will not have a significant economic impact
on a substantial number of small entities as defined by that Act.
Entities affected by this policy are private individuals holding
authorizations to use National Forest System lands for the purpose of
constructing and maintaining a recreation residence. The requirements
imposed by this final policy are the minimum necessary to protect the
public interest, are not administratively burdensome or costly to meet,
and are well within the capability of small entities to perform.
Environmental Impact
Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180;
September 18, 1992) excludes from documentation in an environmental
assessment or impact statement ``rules, regulations, or policies to
establish Service-wide administrative procedures, program processes or
instructions.'' Based on consideration of the comments received and the
nature and scope of this final policy, the agency has determined that
this 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.
Dated: April 4, 1994.
Jack Ward Thomas,
Chief.
Reformulated Recreation Residence Policy and Procedures
Note: The Forest Service organizes its directive system by
alpha-numeric codes and subject headings. Only those sections of the
Forest Service Manual and Handbook that are the subject of this
notice are set out here. The intended audience of this direction is
Forest Service employees charged with issuing and administering
recreation residence use authorizations.
Forest Service Manual
Chapter 2340--Privately Provided Recreation Opportunities
2347--Non-Commercial Recreation Use. Section 2347-2347.12b set
forth direction for special use authorization of privately built and
owned structures on National Forest land. These structures are
maintained for the use and enjoyment of holders and their guests. As
recreation facilities, they are vacation sites and may not be used on a
permanent basis (FSM 2721.23).
2347.03--Policy
1. Management non-commercial recreation use sites in accordance
with basic recreation policy in FSM 2303 as valid and important
components of the overall National Forest recreation program.
2. Continue to authorize those existing facilities now occupying
National Forest land under special use authorization that (a) are
consistent with management direction given in the Forest Land and
Resource Management Plan (FSM 2721.23e), (b) are at locations where the
need for an alternative public purpose has not been established, (c) do
not constitute a material, uncorrectable offsite hazard to National
Forest resources, and (d) do not endanger the health or safety of the
holder or the public.
3. Manage non-commercial recreation use sites in such a way that
the general public is not precluded from full enjoyment of the natural,
scenic, recreational, and other aspects of the National Forests (FSM
2701).
4. Deny applications for construction of new facilities except
where they would replace similar existing facilities.
5. Deny any proposal for commercial activity at permitted, non-
commercial recreation use sites.
6. Require non-commercial recreation use holders to maintain their
sites to protect the natural forest environment. Do not allow
construction or placement of non-authorized facilities on these sites.
2347.1--Recreation Residences. (FSM 2721.23 and FSH 2709.11.)
Recreation residences are a valid use of National Forest System
lands. They are an important component of the overall National Forest
recreation program and have the potential of supporting a large number
of recreation person-days. They may provide special recreation
experiences that might not otherwise be available. It is Forest Service
policy to continue recreation residence use and to work in partnership
with holders of these permits to maximize the recreational benefits of
these residences.
1. Administer recreation residence special use permits to ensure
proper use of the lot for family and guest recreational purposes (FSM
2347.11).
2. Do not approve any new authorizations for full-time residences,
except in special situations to provide caretaker or other similar
services where there is a strongly demonstrated need (FSM 2347.12). Do
not approve in-lieu lots for full-time residential use.
3. Issue recreation residence term permits for a maximum of 20
years in accordance with procedures in FSM 2721.23e and FSH 2709.11,
sec. 41.23.
4. Give holders at least 10 years written advance notice if a new
permit will not be issued following expiration of the existing permit
term (FSM 2721.23a).
5. Revoke a recreation residence permit before expiration of the
term of the permit when (a) it is in the public interest, particularly
when the final decision authority does not rest with the Forest
Service, (b) there is an uncorrected breach of a permit provision(s)
(FSM 2721.23i), (c) the site has been rendered unsafe by catastrophic
events such as flood, avalanche, or massive earth movement, or (d) when
there is other cause as provided in 37 CFR 251.60. Revocation in the
public interest should not be undertaken unless monies are available to
pay for the holder's improvements and there is an urgent need to use
the lot before the action can be considered through the Forest planning
process resulting in a decision to convert to an alternative public
use. When revoking a permit for any cause, give as much advance notice
as possible (FSM 2721.23i).
6. Although provision of an in-lieu lot is not required, make a
reasonable effort to provide a lot to holders whose lots will be
converted to an alternative public use and who have received
notification that new permits for those lots will not be issued or who
have received revocation notices (except revocation for noncompliance)
(FSM 2721.23e). For this purpose, in-lieu lots must be in
nonconflicting locations in or adjacent to established tracts within
the National Forest containing the residences, or in or adjacent to
established tracts on adjacent National Forests. Appropriate lots for
consideration are undeveloped, formerly developed, and withdrawn lots
in or adjacent to established recreation residence tracts and which are
not needed in the foreseeable future for other public uses. Lots that
are vacant because of noncompliance or other factors also may be
considered as in-lieu lots. In-lieu lots should be comparable to the
lots being converted to an alternative public use when possible, but
authorized officials should advise holders that the Agency cannot
guarantee that the available in-lieu lots will be entirely comparable.
Do not establish new recreation residence tracts for in-lieu lot
purposes. Offer in-lieu lots in accordance with the procedures in FSH
2709.11, sec. 41.23c.
2347.11--Preventing Unauthorized Residential Use. Prevent
unauthorized full-time residential use by enforcing the terms of the
special use permit. Continue to administer those recreation residences
presently authorized as a principal place of residence in accordance
with provisions of the special use permit. Upon transfer or sale of
improvements, discontinue the residential use and authorize only
recreation residence use.
2347.12--Caretaker Residences.
2347.12a--Authority. Authorize caretaker use of a recreation
residence with an annual permit, Form 2700-4, under the Act of June 4,
1897. (Require applicants who currently have term permits to exchange
them as a condition of obtaining the caretaker authorization.)
2347.12b--Caretaker Residence Use. The need for a caretaker
residence rarely can be justified where yearlong occupancy is already
authorized in the tract. The Forest Supervisor may authorize a
caretaker residence in limited cases where it is demonstrated that
caretaker services are needed for the security of a recreation
residence tract and alternative security measures are not feasible or
reasonably available. The fees for caretaker residences shall be 25
percent more than those charged for recreation residence use of a
similar lot in the tract. A tract association may own caretaker
residences.
1. Authorize no more than one caretaker residence per recreation
residence tract unless factors such as size and layout of the tract
call for more than one. The affected tract association, or if there is
no association, at least 60 percent of the affected holders, must
document approval of request for a caretaker residence. Require the
applicants for caretaker use to document the caretaker services they
will provide.
2. Do not authorize construction of a new residence for caretaker
services. Issue the annual permit only for an existing residence. The
permit must contain a provision that automatically terminates
authorization for yearlong use in case of change in ownership.
3. Coordinate applications for caretaker residence permits with
local governmental agencies to avoid creating unreasonable demands or
burdens for such services as snow plowing, mail delivery, garbage
pickup, school bus, or emergency services.
4. If a lot ceases to be used as a caretaker residence, issue a new
term permit for recreation residence use to the holder, if qualified,
or to the purchaser of the improvements.
Forest Service Manual
Chapter 2720--Special Uses Administration
2721.23--Recreation Residence. the term ``recreation residence''
includes only those residences that occupy planned, approved tracts or
those groups established for recreation residence use. See FSM 2347 for
basic policy on recreation residence use.
2721.23a--Administration. The following direction relates
specifically to issuance and administration of special use permits for
recreation residences. For recreation residence permits in Alaska,
follow the additional requirements in section 1303(d) of the Alaska
National Interest Lands Conservation Act. Administer recreation
residence permits in accordance with the direction in sections
2721.23a-2721.23i and within the broad policy governing recreation
residences and permitted uses set forth in FSM 2347.1 and 36 CFR
251.50.
1. Issue special use permits for recreation residence use in the
name of one individual or to a husband and wife. Upon issuance of a new
permit that continues the use or amendment, revise authorizations that
are not issued to an individual or to a husband and wife, so that the
responsible person is identified.
2. Issue no more than one recreation residence special use permit
to a single family (husband, wife, and dependent children).
3. Do not issue special use permits for recreation residence use to
entities such as commercial enterprises, nonprofit organizations,
business associations, corporations, partnerships, or other similar
enterprises, except that a tract association may own a caretaker
residence.
4. To the extent possible, issue all recreation residence permits
in a tract, or in logical groups of tracts, with the same expiration
date.
5. To help defray costs and provide additional recreation
opportunities, a holder may obtain permission for incidental rental for
specific periods. Ensure that rental use is solely for recreation
purposes and does not change the character of the area or use to a
commercial nature. Rental arrangements must be in writing and approved
in advance by the authorized officer. The holder must remain
responsible for compliance with the special use authorization.
6. Allow no more than one dwelling per lot to be built. In those
cases where more than one dwelling (residence/sleeping cabin) currently
occupies a single lot, allow the use to continue in accordance with the
authorization. However, correct such deficiencies, if built without
prior approval, upon transfer of ownership outside of the family
(husband, wife and dependent children).
7. When a recreation residence is included in the settlement of an
estate, issue a new special use permit for the remainder of the
original permit term, updated to reflect policy and procedural changes,
to the properly determined heir, if eligible. Prior to estate
settlement, issue an annual renewable permit to the executor or
administrator to identify responsibility for the use pending final
settlement of the estate. When a recreation residence is sold, issue a
new term permit to the buyer for the remainder of the original permit
term, updated to reflect policy and procedural changes, if eligible.
8. Specify in the permit that the recreation residence must be
occupied at least 15 days annually, the minimum acceptable period of
occupancy.
9. Issue recreation residence term permits for a maximum of 20
years, except when the need for a shorter term has been determined by a
project analysis in accordance with FSM 2721.23e and FSH 2709.11,
chapter 40.
10. When a decision is made to convert the lot to an alternative
use (2721.23e), take the following actions:
a. Notify the holder of the reasons and provide a copy of the
decision documentation.
b. Allow at least 10 years of continued occupancy after
notification.
c. Allow the current term permit to expire under its own terms and
if the holder is entitled to additional time to satisfy the 10-year
notification period, issue a new term permit for the remaining period.
Clearly specify any limited tenure by including the following statement
in the permit:
``This permit will expire on (insert date) and a new permit will
not be issued.''
d. Issue term or annual permits for additional periods as needed to
allow continuation of occupancy until conversion to the alternate
public use is ready to begin.
11. Before the Forest Supervisor issues a decision to convert a lot
to an alternative public use, submit the proposed decision, supporting
documentation and summary of public comments, to the Regional Forester
for review for adequacy of the documentation and analysis. If analysis
and documentation are inadequate to support the proposed decision or
there is some other deficiency in the proposed decision, the Regional
Forester shall instruct the Forest Supervisor to remedy the
deficiencies and reconsider the proposed decision prior to making the
final decision.
12. As with any resource allocation made in a Forest plan, the
Forest Supervisor may reconsider a decision to continue or convert
recreation residence lots to an alternative public use at any time new
or changed conditions merit such reconsideration.
13. In the event a recreation residence is destroyed or
substantially damaged by a catastrophic event such as a flood,
avalanche, or massive earth movement, conduct and document an
environmental analysis to determine whether improvements on the lot can
be safely occupied in the future under Federal and State law before
issuing a permit to rebuild or terminating the permit. Normally, an
analysis should be completed within 6 months of such an event.
Allow rebuilding if the lot can be occupied safely and the use
remains consistent with the Forest Land and Resource Management Plan.
If the need for an alternative public use at the same location has been
established prior to the catastrophic event, do not allow rebuilding if
the improvements are more than 50 percent destroyed. If rebuilding is
not authorized, in-lieu lots may be offered as provided by FSM 2347.1,
paragraph 6 and FSH 2709.11, section 41.23c.
14. At the time permits are issued, advise holders that the terms
of the permit require that they notify the Forest Service if they
intend to sell their improvements and that they must provide a copy of
the permit to a prospective purchaser before finalizing a sale.
Whenever possible, the authorized officer should advise a prospective
purchaser of the terms and conditions of the permit before a sale is
final.
15. Do not stay a fee increase pending completion of an appeal of
the fee under the administrative appeal regulations. Make any
adjustments resulting from the administrative review through credit,
refund, or supplemental billing.
16. During the term of a permit, terminate or revoke the use only
in accordance with regulations at 36 CFR 251.60 and the terms and
conditions of the permit (FSM 2347.1, para. 5). Except for revocation
for noncompliance of terms of the permit, the Forest Supervisor shall
submit proposed revocations, with supporting documentation and a
summary of the public comments, to the Regional Forester for review
prior to the Forest Supervisor's issuance of a decision. If analysis
and documentation are inadequate to support the proposed decision or
there is some other deficiency in the proposed decision, the Regional
Forester shall instruct the Forest Supervisor to remedy the
deficiencies and reconsider the proposed revocation prior to making the
final decision.
2721.23b--Applications. Insofar as practicable, notify a new or
prospective owner of the requirement to make application for the
authorization to use existing improvements in accordance with 36 CFR
251.54.
2721.23c--Permit Preparation.
1. Use the Term Special Use Permit for Recreation Residence (Form
FS 2700-5a, FSH 2709.11, ch. 50), to authorize recreation residences,
except as specified in paragraph 2 of this section.
2. Use the Special Use Permit (Form FS-2700-4) when:
a. Conversion of the lot to a alternative public use is authorized,
the conversion will be delayed, and a minimum term of continued use
cannot be predicted.
b. Continuance of the recreation residence use is conditioned on
the owner complying with specific Forest Service requirements before a
term permit is issued.
c. The improvements are managed by a third party pending settlement
of an estate, bankruptcy proceedings, or other legal action.
d. Yearlong occupancy is authorized by the Forest Supervisor, at
which time the improvement ceases to be a recreation residence.
3. In either permit, identify all authorized improvements
associated with recreation residence use. Do not authorize use of more
than the statutory maximum of 5 acres under a term permit. Authorize
community or association-owned improvements, such as water systems, by
a separate special use permit (Form FS-2700-4).
2721.23d--Fee Determination. (FSH 2709.11, ch. 30.).
1. Use fair market value as determined by appraisal in determining
the base annual rental fees for recreation residence lots. Redetermine
the base fee at 20-year intervals.
2. Adjust the fee annually by the annual (second quarter to second
quarter) change in the Implicit Price Deflator-Gross National Product
(IPD-GNP).
3. Use professional appraisal standards in appraising recreation
residence lots for fee determination purposes (FSH 2709.11.)
4. Where practicable, contract with private fee appraisers to
perform the appraisal.
5. Require appraisers to coordinate the assignment closely with
affected holders by seeking advice, cooperation, and information from
the holders and local holder associations.
6. Retain only qualified appraisers. To the extent practicable, use
those appraisers most knowledgeable of market conditions within the
local area.
7. Before accepting any appraisal, conduct a full review of the
appraisal to ensure the instructions have been followed and the
assigned values are supported properly.
Forest Service Handbook 2709.11--Special Uses
Chapter 30--Fee Determination
33--Recreation Residence Fees
33.1--Base Fees and Indexing. Follow these procedures in determining
the base (beginning) fee and subsequent fees under a 20-year cycle.
1. As the initial base, use the fees established in one of the
years between 1978 and 1982. The first year of the fee cycle is the
first year of the established fee (disregarding any phase-in that may
have been provided). Adjust the full base fee forward by applying the
appropriate cumulative Implicit Price Deflator-Gross National Product
(IPD-GNP) adjustment factor shown in exhibit 01. New fees for 1989,
established in this manner, will be phased-in over a 4-year period
(1989-1992) at the rate of one-fourth of the increase each year, except
that fees will not be phased-in for those permits that limit fee
adjustments to 5-year intervals.
In those cases where there may not be a fee established for the
1978-1982 period, Regional Foresters are authorized, subject to
concurrence of the Chief, to utilize a different starting date and to
adjust the length of the fee cycle so that all permits will have a new
base fee determined during the 1998-2002 period.
2. For 1990 through the last year of the fee cycle, adjust the fees
on an annual basis by calculating the percentage change of the IPD-GNP
index (as reported by the Bureau of Economic Analysis, Department of
Commerce, in July of each year) from the second quarter of the previous
year to the second quarter of the current year and applying this
percentage adjustment factor to the current year's fees.
For term permits that restrict adjustments to 5-year intervals,
apply the IPD index adjustments cumulatively at 5-year intervals. At
the end of the current 20-year term, or earlier if agreed to by the
holder, revise permits to provide for annual indexing.
3. Limit the annual fee adjustment for 1990 and thereafter to 10
percent per year when the change in the IPD-GNP index exceeds 10
percent in any one year. The index amount in excess of 10 percent will
be carried over and applied to the fee for the next succeeding year in
which the index factor is less than 10 percent.
4. If a new permit is to be issued (FSM 2721.23a), re-appraise the
lot toward the end of the 20-year cycle. Beginning in the twenty-first
year (the first year of the next fee cycle; 1998 in the case of 1978
fees), put into effect the base fee for the next 20-year cycle by
applying 5 percent to the newly determined appraised market value of
the lot for recreation residence purposes.
5. In those few cases where one or more additional sleeping
structures (guest cabins, and so forth) have been added to a single
lot, add to the current adjusted base fee an additional charge equal to
25 percent of the fee established for a single residence use of the lot
or $100, whichever is greater, per structure.
Exhibit 01, Sec. 33.1--IPD-GNP Adjustment Factor by Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cum.
Base fee year 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 adj.
--------------------------------------------------------------------------------------------------------------------------------------------------------
1978........................................ 1.101 1.092 1.095 1.067 1.050 1.032 1.038 1.033 1.026 1.028 1.029 1.771
1979........................................ ....... 1.092 1.095 1.067 1.050 1.032 1.038 1.033 1.026 1.028 1.029 1.609
1980........................................ ....... ....... 1.095 1.067 1.050 1.032 1.038 1.033 1.026 1.028 1.029 1.473
1981........................................ ....... ....... ....... 1.067 1.050 1.032 1.038 1.033 1.026 1.028 1.029 1.346
1982........................................ ....... ....... ....... ....... 1.050 1.032 1.038 1.033 1.026 1.028 1.029 1.261
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Note: Cum. Adj.=Cumulative Adjustment.)
The above factors for fee years 1979-1986 were taken from Table 5,
Price Indexes and the Gross National Product Implicit Price Deflator,
as published in the Survey of Current Business by the Department of
Commerce, Bureau of Economic Analysis, February 1986. These factors
represent an annual rate, based on the percent change from the first
quarter to the second quarter of the indicated year. The 1987 factor of
1.026 is the percentage change in the IPD-GNP index from the second
quarter of 1985 to the second quarter of 1986 as reported in the July
1986 issue of ``United States Department of Commerce News,'' a
publication by the Bureau of Economic Analysis. The IPD-GNP index for
the second quarter of 1985 is 111.1. The 1988 and 1989 factors, were
determined following the same procedures, using the appropriate year's
publication. The factors for 1979-1989 in Exhibit 01 are shown only to
illustrate how the cumulative adjustment factor used to establish the
1989 fee is determined. The factor was determined by chain multiplying
the factor for the years within the base fee year period (for 1982 this
would be 1.050 x 1.032 x 1.038 x 1.033 x 1.026 x 1.028 x
1.029 = 1.261.) See exhibit 02 for examples of applications.
Exhibit 02, Sec. 33.1--Examples of Use of IPD-GNP Table
The following two examples illustrate use of the IPD-GNP adjustment
factors in exhibit 01 in determining the 1989 fee:
(1) Example 1. A fee of $412 that became established in 1982 (first
year in the fee cycle) would be adjusted to $520 in 1989 ($412 x
1.261). This would be the fee amount owed by a holder who does not
accept the new term permit and would remain constant until the end of
the five year adjustment period. If a new term permit is accepted, the
fee would be phased-in, and the holder would be charged $439 for 1989,
instead of the full amount.
(2) Example 2. A 1980 base year fee of $315 would be adjusted to
$464 ($315 x 1.473) with the actual 1989 charge limited to $352 for a
new term permit. A holder who keeps the old permit would pay the full
fee of $464 in 1989.
Under both examples, factors for the years 1990 and thereafter will
be determined in the same manner as the 1989 factor. Using the 1989
factor as an example, the index for the second quarter of 1987 as
reported in the July 1987 Bureau publication is 117.2; the index for
February 1988 in the July 1988 Bureau publication is 120.6. The
percentage change in the index to be used to determine 1989 fees is
120.6 minus 117.2 divided by 117.2. Thus, 1989 fees will be 2.9 percent
higher than 1988 for those permits that are indexed.
Using the above two examples, calculation of the 1990 fees for
those accepting new term permits would be as follows: (A 1990 IPD-GNP
adjustment factor of 1.028 is assumed.)
(1) Example 1. The full 1989 fee of $520 times the IPD-GNP index
factor for 1990 of 1.028 equals $535, the full fee for 1990. The
increase in the fee is $15. The amount of the 1989 fee increase to be
phased-in in 1990 is $54 ($520-$412 = $108/2 = $54). Thus, the 1990 fee
to be charged is the base 1982 fee of $412 + $54 + $15 = $484.
(2) Example 2. The full 1990 fee equals $477, a fee increase of
$13. The amount of the 1989 fee increase to be phased-in in 1990 is $75
($464-$315 = $149/2 = $75). Thus, the 1990 fee to be charged is the
base 1980 fee of $315 + $75 + $13 = $403.
33.11--Fee Credits. In billing holders for fees, reduce the fee by
the amount of any unused or remaining credits due holders under
provisions of the Appropriations Acts for fiscal years 1983 through
1986.
33.2--Fees on Nonrenewal. When permits are placed on tenure (that
is, a new special use permit will not be issued following expiration),
the annual fee for the tenth year prior to the expiration date of the
current permit becomes the base fee. The fee for each year during the
last ten years is one-tenth of the base fee multiplied by the number of
years then remaining on the permit. For example, charge a holder with
nine years remaining 90 percent of the base fee; with eight years, 80
percent; and so forth.
Use the following schedule to calculate the holder's fee during the
10-year period:
------------------------------------------------------------------------
Percent of
Years remaining on current permit base fee to
charge
------------------------------------------------------------------------
10...................................................... 100
9....................................................... 90
8....................................................... 80
7....................................................... 70
6....................................................... 60
5....................................................... 50
4....................................................... 40
3....................................................... 30
2....................................................... 20
1....................................................... 10
------------------------------------------------------------------------
When a review of the decision to convert the lot to an alternative
public use shows that changed conditions warrant continuation of the
recreation residence, use the following fee determination procedures:
1. If a new 20-year term permit is issued, the Forest Service shall
recover the amount of fees foregone while the previous permit was under
notice that the lot would be converted to an alternative public use.
Collect this amount evenly over a 10-year period in addition to the
annual fee due under the new permit. The obligation runs with the lot
and shall be charged to a subsequent purchaser.
The annual fee under the newly issued 20-year permit shall be the
annual index adjusted fee computed as though no limit on tenure
existed, plus the amount specified above until paid in full.
2. If a 20-year term permit is not issued, and the occupancy of the
subject lot is to be allowed to continue for less than 10 years (that
is, authorized by a new permit for a specified term), do not recover
past fees. Determine the fee for a new permit of less than 10 years by
computing the fee as if notice that a new permit would not be issued
had not been given, reduced by the appropriate percentage for the
number of years of the extension (that is, a 6-year tenure period
results in a fee equal to 60 percent of the base fee).
3. If a 20-year term permit is not issued, and the occupancy of the
subject lot is to be allowed to continue for more than 10 years
(authorized by a new permit for a term of less than 20 years), the
Forest Service shall recover fees as outlined in preceding paragraph 1,
computed for the most recent 10-year period in which the term of the
permit was limited.
33.3--Appraisals. Use the following process to determine the fair
market value of recreation residence lots.
1. Use appraisals made by professional appraisers for determining
the market value of the fee simple estate of the National Forest land
underlying the lot subject to a special use permit, but without
consideration as to how the authorization would or could affect the fee
title of the lot (FSH 5409.12, ch. 6 for the standard contract to be
used to establish fair market value of recreation residence lots).
2. In consultation with affected holders, select and appraise
typical lots (rather than all individual lots) within groups that have
essentially the same or similar value characteristics. Within such
groupings, adjust for measurable differences between the lots. (Once
properly established, typical site classifications should rarely
change.)
3. Ensure appraised values are based on comparable market sales of
sufficient quality and quantity that will result in the least amount of
dollar adjustment to make them reflective of the subject lots'
characteristics. Such characteristics include:
a. Physical differences between subject lot and the comparable
sales.
b. Legal constraints imposed upon the market by governmental
agencies.
c. Economic considerations evident in the local market.
d. Locational considerations of subject lot in relation to the
market (sales) comparable.
e. Functional usability and utility of the lot.
f. Amenities occurring to the lot as compared with selected sales
comparables.
g. Availability of improvements (such as roads, water systems, and
power lines) provided by nonholder entities, including the United
States. Do not adjust for improvements furnished by holders.
h. Other market forces and factors identified as having a
quantifiable effect upon value.
33.31--Appraisers.
1. Select fee appraisers who hold a current certification of
competence from a nationally recognized professional appraisal
organization. In the case of Forest Service appraisers, use those
individuals who have received adequate training through professional
appraisal organizations and who have satisfactorily completed the basic
courses necessary to demonstrate competence.
2. Require appraisers to sign a standard agreement that states:
a. The approved appraisal format to be used.
b. The approved standard forms to be used.
c. A full, complete, and accurate definition of the appraisal
problem.
d. The standards of professional competence, ethics, and practice
to which the appraiser shall adhere.
e. Those requirements of the appraisal assignment that may be
imposed under (1) statutes, (2) Federal regulations, (3) Forest Service
policies and procedures, and (4) situations unique to the given
appraisal assignment.
3. Require appraisers to notify affected holders by mail and offer
to meet with them to discuss the assignment, answer questions specific
to the assignment, and seek advice, information, and cooperation from
the holders and their local organizations. The appraiser must notify
holders of such a meeting at least 30 days in advance of the meeting.
Send notices to the address used for bills for collection. Use the
notice to give the holders advance information on the appraisal
assignment. At such meetings, require that the appraiser have available
copies of the appraisal instructions, directions, and requirements for
review by the holders. An appraisal cannot be made prior to the meeting
with the holders.
33.32--Establishing Recreation Residence Lot Value.
1. Upon receipt of the appraisal report, conduct a review of the
appraisal in conformance with the standards of the National Association
of Review Appraisers.
2. Following review and acceptance of the appraisal, notify
affected holders of Forest Service acceptance of the report. In the
notification, inform holders that they and other interested parties
have 45 days in which to review the appraisal. Upon request, provide
copies of the report(s) and supporting documentation pursuant to the
Freedom of Information Act.
3. Upon request, provide an opportunity for affected holders to
obtain, at their expense, an appraisal report from an appraiser holding
at least the same or similar qualifications as the one selected by the
Forest Service.
a. The Forest Service shall provide holders with a copy of the
standards used by the appraiser selected by the Forest Service and
holders shall provide the standards to the holder-employed appraiser.
The holder must require the observance of these standards, including a
signed certification that ensures an understanding of the appraisal
instructions and standards. Reject any appraisals that do not meet
these standards.
b. Subject the holder-furnished appraisal to the same review
requirements as the appraisal obtained by the Forest Service.
4. Give full and complete consideration to both appraisals. If the
two appraisals disagree in value by more than 10 percent, ask the two
appraisers to try and reconcile or reduce their differences. If the
appraisers cannot agree, the Forest Supervisor will utilize either or
both appraisals to determine the fee, unless a third appraisal is
requested and accepted by the Supervisor.
5. When requested, seek a third appraisal.
a. The cost shall be shared equally by the holder and the Forest
Service.
b. This appraisal must meet the same standards of the first and
second appraisals. The Forest Supervisor has discretion to accept or
reject the third appraisal.
Forest Service Manual
Chapter 2720--Special Uses Administration
2721.23e--Recreation Residence Continuance. See FSM 2347.1 for the
general policy on recreation residence use. Follow the direction in
this section and the procedures in section 41.23, FSH 2709.11 in
determining whether recreation residence term permits may be issued for
a new term at current sites. Exhibit 01, section 41.23c, FSH 2709.11,
depicts the permit continuance process.
The Land and Resource Management Plan (Forest plan) provides
direction for continuance of the recreation residence use (FSM 1920).
As Forest plans are revised, availability for recreation residence use
shall be explicitly addressed in the plan through delineation of
management areas and associated management area prescriptions (FSM
1920).
Decisions to issue new recreation residence term permits following
expiration of the current term permit require a determination of
consistency with the current Forest plan. Make this determination by
evaluating the extent to which continued recreation residence use
adheres to the standards and guidelines which apply to the appropriate
management area. Address continuation of recreation residence use on a
tract or group of tracts basis, not on individual lots.
1. Use Is Consistent With Forest Plan. When recreation residence
use is consistent with the Forest plan, it shall continue. If the use
has been analyzed sufficiently as part of a EA or EIS completed within
the 5 years prior to permit expiration, issue a new term permit upon
expiration of the current term permit. Issue a record of decision or a
decision notice and finding of no significant impact only if the use
was not specifically approved in the appropriate decision document. If
the use has changed and such change has not been analyzed sufficiently
as part of a completed EA or EIS, complete the appropriate
environmental analysis (FSH 1909.15). If the EA or EIS indicating the
use is consistent with the Forest Plan was completed more than 5 years
prior to permit expiration, additional environmental documentation is
necessary (FSH 1909.15, sec. 18.03). Initiate action to issue a new
term permit within 2 years prior to permit expiration.
2. Use May Not Be Consistent With Forest Plan. When the lands
currently authorized for recreation residence use are allocated to
alternative public uses through amendment or revision of the Forest
Plan, and continued recreation residence use may be inconsistent with
standards and guidelines which apply to the appropriate management
area, the Forest Supervisor shall conduct a project analysis of the
alternative public use(s) (FSH 1909.15). This project analysis shall
consider continuation of existing recreation residence use through
appropriate modification of the term permit provisions or amendment of
the Forest plan to accommodate the use, or discontinuation of the use
(See FSM 2347.1 for recreation residence use continuance). Decisions
reached by the project analysis must comply with NEPA requirements and
are subject to appeal under Department of Agriculture appeal
regulations at 36 CFR part 215 and 36 CFR part 251, subpart C.
a. If the project analysis results in a decision to amend the
Forest plan so that the recreation residence use may continue, modify
the provisions of the current term permits as appropriate. New term
permits can be issued following current permit expiration. Additional
environmental documentation may be necessary (FSH 1909.15).
b. If the project analysis results in a decision to convert a lot
to an alternative public use at some point in the future, grant the
holder at least 10 years continued use from the date of the decision,
unless the continued use conflicts with law and regulation, and
identify the specific alternative public use(s) for which the land is
being recovered. As provided by FSM 2347.1, the authorized officer may
allow continued use of the lot until such time as conversion of the new
use is ready to begin by issuing a new permit for the remaining period
and amending the Forest plan if needed.
c. Review the project analysis decision two years prior to permit
expiration to determine if there have been any changes in resource
conditions that require another look at the decision. If the decision
was made less than 5 years prior to permit expiration and the review
shows that conditions have not changed, implement the project analysis-
based decision. Affirmation of such decision is not appealable (36 CFR
251.83). If the decision was made more than 5 years from permit
expiration and/or review indicates that resource conditions have
changed, update the analysis to determine the proper action. Decisions
arising from this new analysis are appealable.
2721.23f--In-Lieu Lots. When new permits will not be issued
following expiration of the present permit, make a reasonable effort to
provide an in-lieu lot, if available, at locations not needed in the
foreseeable future (generally, the period covered by the Forest plan)
for alternative public uses in accordance with FSM 2347.1, paragraph 6
and FSH 2709.11, section 41.23d.
2721.23g--Land Exchange. Proposals to convey recreation residence
tracts into private ownership by land exchange may be considered at any
time. Such proposals must be processed in accordance with the
instructions in FSM 5430 applicable to all land exchanges.
2721.23h--Cooperation and Issue Resolution. Authorized officers
shall strive to reduce conflict between holders and the Forest Service
arising from permit administration. As necessary, specify a Forest
Officer to work with the holders, their representatives, and other
interested parties on specific issues.
1. Provide opportunity for holders and their representatives to
participate in issue resolution. Where practicable, except where an
imminent hazard or risk to health and safety or resources requires
immediate action prior to issuing written decisions related to permit
administration, consult and meet in person, or by telephone, with
holders and their representatives to discuss any issues or concerns
related to the permit and to reach a common understanding and
agreement.
2. During Forest plan amendment or revision and project analysis,
seek full involvement of holders and their representatives in public
involvement opportunities and activities. Encourage and solicit their
input and comments. Meet with holders and their representatives to
discuss any issues or concerns arising in the planning and analysis
processes and explore opportunities to resolve those issues prior to
issuing a decision.
3. If a decision is appealed, utilize the opportunities provided in
the appeal rules (36 CFR part 215, part 217 and part 251, subpart C) to
discuss the appeal with the appellant(s) and intervenor(s) (and/or
their representatives) together or separately to explore opportunities
to resolve the issue by means other than review and decision on the
appeal.
2721. 23i--Noncompliance. Give written notice and provide a
reasonable opportunity for holder to correct special use permit
violations before terminating the use for noncompliance with the permit
conditions (36 CFR 251.60(e)). Revocation for noncompliance shall be
only for a breach of a permit provision(s) that continues after notice
and a reasonable opportunity for correction has been given (FSM 2347.1,
para. 5).
2721.23j--Lot Restoration. On expiration of a permit which will not
be reissued or revocation or termination prior to expiration (FSM
2721.23a(10), 2721.23a(16)), except for revocation in the public
interest, require the holder to restore the property to a condition
acceptable to the Forest Supervisor (36 CFR 251.60(j)). The holder may
relinquish the improvements to the Forest Service upon approval of the
Forest Supervisor. Terms and conditions for lot restoration are given
in the term permit issued for recreation residences.
Forest Service Handbook 2709.11--Special Uses
Chapter 40--Special Uses Administration
41.23--Recreation Residence Use.
41.23a--Permit Continuance. When a Forest plan is amended or
revised and recreation residence use remains consistent with management
direction given in the Forest plan, issue a new permit to the same
holder in accordance with the following:
1. Since recreation residences have been in place for many years,
and experience in administering this use has shown that continuing the
use does not cause significant environmental impacts, issuance of a new
permit can be made without further environmental documentation (FSM
2721.23e), except when the following situations are present:
a. If the use has been analyzed sufficiently as part of an EA or
EIS completed within 5 years of permit expiration, but not specifically
addressed in a decision document, confirm the consistency of the use
with the management direction in the Forest plan by issuing a record of
decision or a decision notice and finding of no significant impact.
b. If the use has not been analyzed sufficiently as part of an EA
or EIS completed within 5 years of permit expiration, complete the
appropriate environmental analysis and documentation (FSH 1909.15).
c. If an EA or EIS indicating the use is consistent with the Forest
plan was completed more than 5 years prior to permit expiration,
additional environmental documentation may be necessary (FSH 1909.15).
d. If there are changes in the use and the changed use has been
analyzed sufficiently as part of an EA or EIS completed within 5 years
of permit expiration and approved in the appropriate decision document
no further action is required. If the changed use has not been analyzed
sufficiently as part of a completed EA or EIS and approved in the
appropriate decision document, environmental documentation may be
necessary. Such documentation may be accomplished by categorical
exclusion (FSH 1909.15).
2. Initiate the analysis and action to issue a new permit 2 years
prior to expiration of the current term permit and notify the holder of
the outcome of the action.
3. Ensure the current use is in full compliance with the terms of
the permit before issuing the new term permit.
4. Review and update the term permit provisions to ensure that the
new permit contains those clauses necessary to comply with all current
regulations of the Secretary of Agriculture and all present Federal,
State, or county laws, regulations, or ordinances which are applicable
to the area covered by the permit.
41.23b--Project Analysis. When a Forest plan is amended or revised
and consistency of the existing recreation residence use with new
Forest plan management direction is uncertain, conduct a site specific
project analysis to verify the new direction. Recognize that an
inconsistency indicated by the Forest plan is not tantamount to
recreation residence removal. Recreation residence use may continue by
appropriate modification of the term permit provisions to recognize
specific occupancy conditions, or by amendment of the Forest plan to
accommodate the use (FSM 2721.23e.1.b).
1. Public Involvement. During the project analysis process,
encourage and solicit information, comments, and involvement from
holders and other interested parties. Follow Forest Service public
involvement procedures, including those associated with NEPA (FSM 1620,
FSH 1900.12, and FSH 1909.15). Facilitate holder involvement by timing
review periods as closely as possible to the recreation residence use
season.
2. Analysis Documentation. The project analysis record and
appropriate NEPA compliance document must contain objective, detailed
information regarding existing recreation residence use and other
applicable resource conditions. The documentation must include a full
range of alternatives that includes consideration for retention of some
or all of the existing recreation residence use.
3. Analysis Factors and Considerations.
a. Lot use. Examine the relationship of the existing recreation
residence use with the proposed alternative public use of the lot,
including compatibility and conflict. Describe any current or
anticipated conflicts between recreation residence use and the proposed
use. Examine and describe the feasibility of other sites to meet the
proposed use or how the proposed use could be provided for by modifying
recreation residence use or by modifying the proposed use.
Develop a range of alternatives that:
(1) If possible, examine and describe ways to meet the proposed use
without significant conflict with existing recreation residence uses
and how potential conflicts can or cannot be mitigated.
(2) Examine the feasibility of common, shared, or multiple use that
includes recreation residences. Also examine the feasibility of
adjusting lot and tract sizes, configurations and boundaries, or
relocation of lot improvements to better accommodate such use.
(3) Examine the feasibility of alternative sites for recreation
residence use and for the proposed use.
(4) Compare the benefits and disadvantages of the proposed use with
the benefits and disadvantages of continued recreation residence use,
including economic considerations, such as the cost of removing the
use.
(5) Examine the feasibility of using land exchanges to accommodate
recreation residence and/or the proposed use.
B. Other Resource Impacts. Show how recreation residence occupancy
is compatible or in conflict with other National Forest System
resources. Consider the applicability of section 106 of the National
Historic Preservation Act and other Federal and State laws which may
have an effect on these resources.
c. Environmental Impacts. Discuss the environmental impacts of
continued recreation residence use, together with the impacts of any
improvements necessary for their continued use, compared with the
impacts of the proposed use. Examine the environmental, economic, and
social impacts of recreation residence use, the proposed use, and
alternative public uses, particularly any necessary construction.
4. Decision Issuance and Documentation.
a. If the project analysis results in a finding that continued
recreation residence use will not conflict with the proposed
alternative public use, issue a decision to amend the Forest plan, and
modify existing permits as appropriate. Issue new term permits for the
applicable lots following permit expiration. The decision document
shall summarize the conclusions regarding recreation residence use and
provide a basis for the issuance of new permits.
b. If the project analysis results in a finding that (1) the
recreation residence use is in some degree inconsistent with the Forest
plan but that continued use does not conflict with the proposed
alternative public use, or (2) that the proposed use can accommodate
some or all of the recreation residence use, issue a decision to amend
the Forest plan and modify existing permits as appropriate. Issue new
term permits for the applicable lots following permit expiration. The
decision document shall summarize the conclusions regarding continued
recreation residence use and delineate, as appropriate, which permits
will not be continued and which will receive new term permits.
c. If the project analysis results in a finding that recreation
residence use remains inconsistent with the Forest plan and is not
compatible with the proposed use, issue a decision that the recreation
residences lots are to be removed and the lots converted to the
proposed use.
d. In addition to other requirements specified in FSH 1909.15, the
decision document shall include the following:
(1) The estimated time of conversion.
(2) The reasons the recreation residence use is or is not
compatible with the proposed use.
(3) The reasons why the proposed use was chosen over others.
(4) A summary of alternatives to the conversion, including the
possibility of combining or sharing use with recreation residence use;
adjusting lots or locations of improvements to better accommodate
common or shared uses; and alternatives suggested by affected holders
and other interested members of the public.
(5) The reasons any conflict between the recreation residences and
the proposed use cannot be resolved.
(6) Cost effectiveness of the proposed use.
5. Decision Notification.
a. Notify holders and any interested parties of the decision and
provide copies of the project analysis, NEPA documentation, any Forest
plan amendment, and decision document as soon as possible after the
decision along with notice of appeal rights under 36 CFR part 217 or
part 251, subpart C.
b. When lots will be converted to the proposed use and new permits
will not be issued upon expiration of the present permits, provide with
the decision notification:
(1) Ten years or more notice that the lots will be converted to the
proposed use (FSM 2721.23a). Normally, use the same conversion date for
all affected holders in a particular group or tract.
(2) Notice that the holder should refrain from making costly
repairs, improvements, or expenditures except those that are necessary
to protect holder and public health or safety.
(3) Notice of whether in-lieu lots will or will not be made
available, although the location of those in-lieu lots may not be known
until permit expiration approaches.
(4) Notice that fees will be adjusted in accordance with FSH
2709.11, section 33.2.
6. Project Analysis Decision Review. Two years prior to permit
expiration (usually the 18th permit year), Forest Supervisors shall
review project analysis decisions affecting those permits that are more
than five years old to determine if there have been any changes in
resource conditions that require reconsideration of the decision.
For all reviews, the following apply:
a. Reviews shall be objective, comprehensive, and in writing. New
information, changed resource conditions, and new or changed land
allocations made through the forest planning process shall be reviewed
to determine if a new project analysis and/or additional NEPA
compliance is needed.
b. When initiating the review, notify affected holders and
interested publics in writing and provide opportunity for involvement
in accordance with Forest Service public involvement procedures.
c. If review indicates that conditions have not changed, implement
the decision.
d. If review indicates that conditions have changed, initiate a new
project analysis, including NEPA compliance, to determine future use of
the lot(s).
e. Notify affected holders and interested publics in writing of
review findings, including notice that the result of the review is not
appealable (36 CFR 251.83).
41.23c--Permit Decision Process. Exhibit 01 depicts the procedure
to be followed in determining whether the recreation residence
authorization should be continued.
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41.23d--In-Lieu Lots. Pursuant to FSM 2347.1, paragraph 6, in-lieu
lots may be offered to holders who have received notice that their
permits are being revoked for reasons other than noncompliance or that
a new permit will not be issued following expiration of their existing
permits because the lot is needed for an alternative public use.
Identify and offer in-lieu lots in accordance with FSM 2347.1,
paragraph 6 and FSM 2721.23f and follow these procedures:
1. When available, offer in-lieu lots to holders at the time that
notice is given that the lot will be converted to an alternative public
use and a new permit will not be issued. If lots do not become
available until later, offer them then.
2. Give first priority to identifying and offering in-lieu lots in
the same tract or an expansion of that tract, where feasible.
3. Arrange a joint inspection of the in-lieu lot with the holder.
Allow the holders 90 days from the date of the joint inspection of the
in-lieu lot or 90 days from the final disposition of any appeals of the
decision to convert the lot to an alternative public use, whichever is
later, to accept or reject the offer. The 90-day period shall occur
while access to the lot is possible.
4. When holders accept such offers, issue a new permit and reserve
the offered lots. Do not charge a fee until the holder begins
construction of improvements on the lot. A partial waiver of fees for
the in-lieu lot may be appropriate until the improvements are actually
occupied. The lot reservation will expire upon holder's failure to
begin construction on the in-lieu lot on a mutually-agreed upon
schedule.
5. Allow holders accepting offers to continue use of their current
lots until the expiration date. Inform the holders that they should be
prepared to move to the in-lieu lot during the 24 months prior to
permit expiration, provided the supplemental review of the decision to
convert the present lot to an alternative public use has been
completed.
6. The opportunity to develop an in-lieu lot, if accepted by the
previous owner, shall be extended to the new owner, if eligible, when
there is a change in ownership of authorized improvements.
7. Do not offer in-lieu lots for revocation actions stemming from
noncompliance with special use permit terms.
Forest Service Handbook 2709.11--Special Uses
Chapter 50--Terms and Conditions
54--Special Use Authorizations
54.1--Term Special Use Permit for Recreation Residences. Use Form
FS-2700-5a with all required clauses as set forth in exhibit 01.
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Note: Permit clauses revised as a result of the reformulation of
the recreation residence policy as described in this notice are
printed in italics.
Terms and Conditions
I. Authority And Use And Term Authorized
A. This permit is issued under the authority of the Act of March 4,
1915, as amended (16 U.S.C. 497), and title 36, Code of Federal
Regulations, sections 251.50-251.64. Implementing Forest Service
policies are found in the Forest Service Directives System (FSM 1920,
1950, 2340, 2720; FSH 2709.11, chap. 10-50). Copies of the applicable
regulations and policies will be made available to the holder at no
charge upon request made to the office of the Forest Supervisor.
B. The authorized officer under this permit is the Forest
Supervisor, or a delegated subordinate officer.
C. This permit authorizes only personal recreation use of a
noncommercial nature by the holder, members of the holder's immediate
family, and guests. Use of the permitted improvements as a principal
place of residence is prohibited and shall be grounds for revocation of
this permit.
D. Unless specifically provided as an added provision to this
permit, this authorization is for site occupancy and does not provide
for the furnishing of structures, road maintenance, water, fire
protection, or any other such service by a Government agency, utility
association, or individual.
E. Termination at End of Term: This authorization will terminate on
*____________. (insert date)
II. Operation and Maintenance
A. The authorized officer, after consulting with the holder, will
prepare an operation and maintenance plan which shall be deemed a part
of this permit. The plan will be reviewed annually and updated as
deemed necessary by the authorized officer and will cover requirements
for at least the following subjects:
1. Maintenance of vegetation, tree planting, and removal of
dangerous trees and other unsafe conditions.
2. Maintenance of the facilities.
3. Size, placement and descriptions of signs.
4. Removal of garbage or trash.
5. Fire protection.
6. Identification of the person responsible for implementing the
provisions of the plan, if other than the holder, and a list of names,
addresses, and phone numbers of persons to contact in the event of an
emergency.
Note: Forest Supervisors may include other provisions relating
to fencing, road maintenance, boat docks, piers, boat launching
ramp, water system, sewage system, incidental rental, and the Tract
Association. Regional Foresters may add specific provisions that
Forest Supervisors should include in the plan.
III. Improvements
A. Nothing in this permit shall be construed to imply permission to
build or maintain any improvement not specifically named on the face of
this permit or approved in writing by the authorized officer in the
operation and maintenance plan. Improvements requiring specific
approval shall include, but are not limited to: Signs, fences, name
plates, mailboxes, newspaper boxes, boathouses, docks, pipelines,
antennas, and storage sheds.
B. All plans for development, layout, construction, reconstruction
or alteration of improvements on the lot, as well as revisions of such
plans, must be prepared by a licensed engineer, architect, and/or
landscape architect (in those states in which such licensing is
required) or other qualified individual acceptable to the authorized
officer. Such plans must be approved by the authorized officer before
the commencement of any work.
IV. Responsibilities of Holder
A. The holder, in exercising the privileges granted by this permit,
shall comply with all present and future regulations of the Secretary
of Agriculture and all present and future federal, state, county, and
municipal laws, ordinances, or regulations which are applicable to the
area or operations covered by this permit. However, the Forest Service
assumes no responsibility for enforcing laws, regulations, ordinances
and the like which are under the jurisdiction of other government
bodies.
B. The holder shall exercise diligence in preventing damage to the
land and property of the United States. The holder shall abide by all
restrictions on fires which may be in effect within the forest at any
time and take all reasonable precautions to prevent and suppress forest
fires. No material shall be disposed of by burning in open fires during
a closed fire season established by law or regulation without written
permission from the authorized officer.
C. The holder shall protect the scenic and esthetic values of the
National Forest System lands as far as possible consistent with the
authorized use, during construction, operation, and maintenance of the
improvements.
D. No soil, trees, or other vegetation may be removed from the
National Forest System lands without prior permission from the
authorized officer. Permission shall be granted specifically, or in the
context of the operations and maintenance plan for the permit.
E. The holder shall maintain the improvements and premises to
standards of repair, orderliness, neatness, sanitation, and safety
acceptable to the authorized officer. The holder shall fully repair and
bear the expense for all damage, other than ordinary wear and tear, to
National Forest lands, roads and trails caused by the holder's
activities.
F. The holder assumes all risk of loss to the improvements
resulting from acts of God or catastrophic events, including but not
limited to, avalanches, rising waters, high winds, falling limbs or
trees and other hazardous natural events. In the event the improvements
authorized by this permit are destroyed or substantially damaged by
acts of God or catastrophic events, the authorized officer will conduct
an analysis to determine whether the improvements can be safely
occupied in the future and whether rebuilding should be allowed. The
analysis will be provided to the holder within 6 months of the event.
G. The holder has the responsibility of inspecting the site,
authorized rights-of-way, and adjoining areas for dangerous trees,
hanging limbs, and other evidence of hazardous conditions which could
affect the improvements and or pose a risk of injury to individuals.
After securing permission from the authorized officer, the holder shall
remove such hazards.
H. In case of change of permanent address or change in ownership of
the recreation residence, the holder shall immediately notify the
authorized officer.
V. Liabilities
A. This permit is subject to all valid existing rights and claims
outstanding in third parties. The United States is not liable to the
holder for the exercise of any such right or claim.
B. The holder shall hold harmless the United States from any
liability from damage to life or property arising from the holder's
occupancy or use of National Forest lands under this permit.
C. The holder shall be liable for any damage suffered by the United
States resulting from or related to use of this permit, including
damages to National Forest resources and costs of fire suppression.
Without limiting available civil and criminal remedies which may be
available to the United States, all timber cut, destroyed, or injured
without authorization shall be paid for at stumpage rates which apply
to the unauthorized cutting of timber in the State wherein the timber
is located.
VI. Fees
A. Fee Requirement: This special use authorization shall require
payment in advance of an annual rental fee.
B. Appraisals:
1. Appraisals to ascertain the fair market value of the lot will be
conducted by the Forest Service at least every 20 years. The next
appraisal will be implemented in *________ (insert year).
2. Appraisals will be conducted and reviewed in a manner consistent
with the Uniform Standards of Professional Appraisal Practice, from
which the appraisal standards have been developed, giving accurate and
careful consideration to all market forces and factors which tend to
influence the value of the lot.
3. If dissatisfied with an appraisal utilized by the Forest Service
in ascertaining the permit fee, the holder may employ another qualified
appraiser at the holder's expense. The authorized officer will give
full and complete consideration to both appraisals provided the
holder's appraisal meets Forest Service standards. If the two
appraisals disagree in value by more than 10 percent, the two
appraisers will be asked to try and reconcile or reduce their
differences. If the appraisers cannot agree, the Authorized Officer
will utilize either or both appraisals to determine the fee. When
requested by the holder, a third appraisal may be obtained with the
cost shared equally by the holder and the Forest Service. This third
appraisal must meet the same standards of the first and second
appraisals and may or may not be accepted by the authorized officer.
C. Fee Determination:
1. The annual rental fee shall be determined by appraisal and other
sound business management principles. (36 CFR 251.57(a)). The fee shall
be 5 percent of the appraised fair market fee simple value of the lot
for recreation residence use.
Fees will be predicated on an appraisal of the lot as a base value,
and that value will be adjusted in following years by utilizing the
percent of change in the Implicit Price Deflator-Gross National Product
(IPD-GNP) index as of the previous June 30. A fee from a prior year
will be adjusted upward or downward, as the case may be, by the
percentage change in the IPD-GNP, except that the maximum annual fee
adjustment shall be 10 percent when the IPD-GNP index exceeds 10
percent in any one year with the amount in excess of 10 percent carried
forward to the next succeeding year where the IPD-GNP index is less
than 10 percent. The base rate from which the fee is adjusted will be
changed with each new appraisal of the lot, at least every 20 years.
2. If the holder has received notification that a new permit will
not be issued following expiration of this permit, the annual fee in
the tenth year will be taken as the base, and the fee each year during
the last 10-year period will be one-tenth of the base multiplied by the
number of years then remaining on the permit. If a new term permit
should later be issued, the holder shall pay the United States the
total amount of fees forgone, for the most recent 10-year period in
which the holder has been advised that a new permit will not be issued.
This amount may be paid in equal annual installments over a 10-year
period in addition to those fees for existing permits. Such amounts
owing will run with the property and will be charged to any subsequent
purchaser of the improvements.
D. Initial Fee: The initial fee may be based on an approved Forest
Service appraisal existing at the time of this permit, with the present
day value calculated by applying the IPD-GNP index to the intervening
years.
E. Payment Schedule: Based on the criteria stated herein, the
initial payment is set at $*__________ per year and the fee is due and
payable annually on *__________ (insert date). Payments will be
credited on the date received by the designated collection officer or
deposit location. If the due date(s) for any of the above payments or
fee calculation statements fall on a nonworkday, the charges shall not
apply until the close of business of the next workday. Any payments not
received within 30 days of the due date shall be delinquent.
F. Interest and Penalties:
1. A fee owed the United States which is delinquent will be
assessed interest based on the most current rate prescribed by the
United States Department of Treasury Financial Manual (TFM-6-8020).
Interest shall accrue on the delinquent fee from the date the fee
payment was due and shall remain fixed during the duration of the
indebtedness.
2. In addition to interest, certain processing, handling, and
administrative costs will be assessed on delinquent accounts and added
to the amounts due.
3. A penalty of 6 percent per year shall be assessed on any
indebtedness owing for more than 90 days. This penalty charge will not
be calculated until the 91st day of delinquency, but shall accrue from
the date that the debt became delinquent.
4. When a delinquent account is partially paid or made in
installments, amounts received shall be applied first to outstanding
penalty and administrative cost charges, second to accrued interest,
and third to outstanding principal.
G. Nonpayment Constitutes Breach: Failure of the holder to make the
annual payment, penalty, interest, or any other charges when due shall
be grounds for termination of this authorization. However, no permit
will be terminated for nonpayment of any monies owed the United States
unless payment of such monies is more than 90 days in arrears.
H. Applicable Law: Delinquent fees and other charges shall be
subject to all the rights and remedies afforded the United States
pursuant to federal law and implementing regulations. (31 U.S.C. 3711
et seq.)
VII. Transfer, Sale, and Rental
A. Nontransferability: Except as provided in this section, this
permit is not transferable.
B. Transferability Upon Death of the Holder:
1. If the holder of this permit is a married couple and one spouse
dies, this permit will continue in force, without amendment or
revision, in the name of the surviving spouse.
2. If the holder of this permit is an individual who dies during
the term of this permit and there is no surviving spouse, an annual
renewable permit will be issued, upon request, to the executor or
administrator of the holder's estate. Upon settlement of the estate, a
new permit incorporating current Forest Service policies and procedures
will be issued for the remainder of the deceased holder's term to the
properly designated heir(s) as shown by an order of a court, bill of
sale, or other evidence to be the owner of the improvements.
C. Divestiture of Ownership: If the holder through voluntary sale,
transfer, enforcement of contract, foreclosure, or other legal
proceeding shall cease to be the owner of the physical improvements,
this permit shall be terminated. If the person to whom title to said
improvements is transferred is deemed by the authorizing officer to be
qualified as a holder, then such person to whom title has been
transferred will be granted a new permit. Such new permit will be for
the remainder of the term of the original holder.
D. Notice to Prospective Purchasers: When considering a voluntary
sale of the recreation residence, the holder shall provide a copy of
this special use permit to the prospective purchaser before finalizing
the sale. The holder cannot make binding representations to the
purchasers as to whether the Forest Service will reauthorize the
occupancy.
E. Rental: The holder may rent or sublet the use of improvements
covered under this permit only with the express written permission of
the authorized officer. In the event of an authorized rental or sublet,
the holder shall continue to be responsible for compliance with all
conditions of this permit by persons to whom such premises may be
sublet.
VIII. Revocation
A. Revocation for Cause: This permit may be revoked for cause by
the authorized officer upon breach of any of the terms and conditions
of this permit or applicable law. Prior to such revocation for cause,
the holder shall be given notice and provided a reasonable time--not to
exceed ninety (90) days--within which to correct the breach.
B. Revocation in the Public Interest During the Permit Term:
1. This permit may be revoked during its term at the discretion of
the authorized officer for reasons in the public interest. (36 CFR
251.60(b.) In the event of such revocation in the public interest, the
holder shall be given one hundred and eighty (180) days' prior written
notice to vacate the premises, provided that the authorized officer may
prescribe a date for a shorter period in which to vacate (``prescribed
vacancy date'') if the public interest objective reasonably requires
the lot in a shorter period of time.
2. The Forest Service and the holder agree that in the event of a
revocation in the public interest, the holder shall be paid damages.
Revocation in the public interest and payment of damages is subject to
the availability of funds or appropriations.
a. Damages in the event of a public interest revocation shall be
the lesser amount of either (1) the cost of relocation of the approved
improvements to another lot which may be authorized for residential
occupancy (but not including the costs of damages incidental to the
relocation which are caused by the negligence of the holder or a third
party), or (2) the replacement costs of the approved improvements as of
the date of revocation. Replacement cost shall be determined by the
Forest Service utilizing standard appraisal procedures giving full
consideration to the improvement's condition, remaining economic life
and location, and shall be the estimated cost to construct, at current
prices, a building with utility equivalent to the building being
appraised using modern materials and current standards, design and
layout as of the date of revocation. If revocation in the public
interest occurs after the holder has received notification that a new
permit will not be issued following expiration of the current permit,
then the amount of damages shall be adjusted as of the date of
revocation by multiplying the replacement cost by a fraction which has
as the numerator the number of full months remaining to the term of the
permit prior to revocation (measured from the date of the notice of
revocation) and as the denominator, the total number of months in the
original term of the permit.
b. The amount of the damages determined in accordance with
paragraph a. above shall be fixed by mutual agreement between the
authorized officer and the holder and shall be accepted by the holder
in full satisfaction of all claims against the United States under this
clause: Provided, That if mutual agreement is not reached, the
authorized officer shall determine the amount and if the holder is
dissatisfied with the amount to be paid may appeal the determination in
accordance with the Appeal Regulations (36 CFR 251.80) and the amount
as determined on appeal shall be final and conclusive on the parties
hereto: Provided further. That upon the payment to the holder of the
amount fixed by the authorized officer, the right of the Forest Service
to remove or require the removal of the improvements shall not be
stayed pending final decision on appeal.
IX. Issuance of a New Permit
A. Decisions to issue a new permit or convert the permitted area to
an alternative public use upon termination of this permit require a
determination of consistency with the Forest Land and Resource
Management Plan (Forest plan).
1. Where continued use is consistent with the Forest plan, the
authorized officer shall issue a new permit, in accordance with
applicable requirements for environmental documentation.
2. If, as a result of an amendment or revision of the Forest plan,
the permitted area is within an area allocated to an alternative public
use, the authorized officer shall conduct a site specific project
analysis to determine the range and intensity of the alternative public
use.
a. If the project analysis results in a finding that the use of the
lot for a recreation residence may continue, the holder shall be
notified in writing, this permit shall be modified as necessary, and a
new term permit shall be issued following expiration of the current
permit.
b. If the project analysis results in a decision that the lot shall
be converted to an alternative public use, the holder shall be notified
in writing and given at least 10 years continued occupancy. The holder
shall be given a copy of the project analysis, environmental
documentation, and decision document.
c. A decision resulting from a project analysis shall be reviewed
two years prior to permit expiration, when that decision and supporting
environmental documentation is more than 5 years old. If this review
indicates that the conditions resulting in the decision are unchanged,
then the decision may be implemented. If this review indicates that
conditions have changed, a new project analysis shall be made to
determine the proper action.
B. In issuing a new permit, the authorized officer shall include
terms, conditions, and special stipulations that reflect new
requirements imposed by current Federal and State land use plans, laws,
regulations, or other management decisions. (36 CFR 251.64)
C. If the 10-year continued occupancy given a holder who receives
notification that a new permit will not be issued would extend beyond
the expiration date of the current permit, a new term permit shall be
issued for the remaining portion of the 10-year period.
X. Rights and Responsibilities Upon Revocation or Notification That a
New Permit Will Not Be Issued Following Termination of This Permit
A. Removal of Improvements Upon Revocation or Notification That A
New Permit Will Not Be Issued Following Termination Of This Permit: At
the end of the term of occupancy authorized by this permit, or upon
abandonment, or revocation for cause, Act of God, catastrophic event,
or in the public interest, the holder shall remove within a reasonable
time all structures and improvements except those owned by the United
States, and shall return the lot to a condition approved by the
authorized officer unless otherwise agreed to in writing or in this
permit. If the holder fails to remove all such structures or
improvements within a reasonable period--not to exceed one hundred and
eighty (180) days from the date the authorization of occupancy is
ended--the improvements shall become the property of the United States,
but in such event, the holder remains obligated and liable for the cost
of their removal and the restoration of the lot.
B. In case of revocation or notification that a new permit will not
be issued following termination of this permit, except if revocation is
for cause, the authorized officer may offer an in-lieu lot to the
permit holder for building or relocation of improvements. Such lots
will be nonconflicting locations within the National Forest containing
the residence being terminated or under notification that a new permit
will not be issued or at nonconflicting locations in adjacent National
Forests. Any in-lieu lot offered the holder must be accepted within 90
days of the offer or within 90 days of the final disposition of an
appeal on the revocation or notification that a new permit will not be
issued under the Secretary of Agriculture's administrative appeal
regulations, whichever is later, or this opportunity will terminate.
XI. Miscellaneous Provisions
A. This permit replaces a special use permit issued to:
*____________________ (Holder Name) on *__________ (Date), 19* ____.
B. The Forest Service reserves the right to enter upon the property
to inspect for compliance with the terms of this permit. Reports on
inspection for compliance will be furnished to the holder.
C. Issuance of this permit shall not be construed as an admission
by the Government as to the title to any improvements. The Government
disclaims any liability for the issuance of any permit in the event of
disputed title.
D. If there is a conflict between the foregoing standard printed
clauses and any special clauses added to the permit, the standard
printed clauses shall control.
Note: Additional provisions may be added by the authorized
officer to reflect local conditions.
Public reporting burden for this collection of information, if
requested, is estimated to average 1 hour per response for annual
financial information; average 1 hour per response to prepare or update
operation and/or maintenance plan; average 1 hour per response for
inspection reports; and an average of 1 hour for each request that may
include such things as reports, logs, facility and user information,
sublease information, and other similar miscellaneous information
requests. This includes the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Send comments
regarding this burden estimate or any other aspect of this collection
of information, including suggestions for reducing this burden, to
Department of Agriculture, Clearance Officer, OIRM, room 404-W,
Washington, DC 20250; and to the Office of Management and Budget,
Paperwork Reduction Project (OMB #0596-0082), Washington, DC 20503.
[FR Doc. 94-13323 Filed 6-1-94; 8:45 am]
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