[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. ----------------------------------------------------------------------- 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. BILLING CODE 3410-11-ME:\GRAPHICS\EN02JN94.004 BILLING CODE 3410-11-C 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. BILLING CODE 3410-11-M
E:\GRAPHICS\EN02JN94.005 BILLING CODE 3410-11-C 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] BILLING CODE 3410-11-M