[Federal Register Volume 73, Number 139 (Friday, July 18, 2008)]
[Proposed Rules]
[Pages 42236-42252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16496]
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Part III
Department of the Interior
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Bureau of Reclamation
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43 CFR Part 429
Use of Bureau of Reclamation Land, Facilities, and Waterbodies;
Proposed Rule
Federal Register / Vol. 73, No. 139 / Friday, July 18, 2008 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Bureau of Reclamation
43 CFR Part 429
RIN 1006-AA51
Use of Bureau of Reclamation Land, Facilities, and Waterbodies
AGENCY: Bureau of Reclamation, Interior.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Bureau of Reclamation (Reclamation) proposes a rule on the
use of Reclamation land, facilities, and waterbodies. The proposed rule
addresses among other topics the cost recovery of fees for authorized
uses involving the possession or occupancy of any portion of, and the
extraction or disturbance of any natural resource from Reclamation
land, facilities, and waterbodies; how to apply for a use authorization
including what application forms to use; and what uses are prohibited
and associated consequences. When finalized, the proposed rule will
supersede the current rule which was originally published in 1983 and
partially revised in April 2006.
DATES: Submit comments by September 16, 2008.
The dates of the informational meetings to be held regarding this
proposed rule are listed in the SUPPLEMENTARY INFORMATION section of
this proposed rule.
ADDRESSES: You may submit comments, identified by the number 1006-AA51,
by one of the following methods:
--Use the Federal rulemaking Web site: http://www.regulations.gov and
follow the instructions for submitting comments. Please use the docket
identification number BOR-2008-0004 which has been assigned to this
rule when submitting your comments to the rulemaking Web site.
--By mail to: Bureau of Reclamation, Denver Federal Center, P.O. Box
25007, Denver, CO 80225-0007, Attention: Richard Rizzi, Mail Code: 84-
53000.
The locations of the informational meetings to be held regarding
this proposed rule are listed in the SUPPLEMENTARY INFORMATION section
of this proposed rule.
FOR FURTHER INFORMATION CONTACT: Richard Rizzi, Mail Code: 84-53000;
Bureau of Reclamation; P.O. Box 25007; Denver, CO 80225. Telephone:
(303) 445-2900.
SUPPLEMENTARY INFORMATION:
I. Background
The current rule, 43 CFR part 429, titled Procedure to Process and
Recover the Value of Rights-of-Use and Administrative Costs Incurred In
Permitting Such Use (current rule), established the procedures to
recover administrative costs associated with processing ``right-of-
use'' applications and the value of rights-of-use granted by
Reclamation to applicants for the use of Reclamation land. Sections of
the current rule were modified, in part, in 2006 to correlate with 43
CFR part 423, titled Public Conduct on Bureau of Reclamation
Facilities, Lands, and Waterbodies.
This proposed rule addresses activities involving the possession or
occupancy of any portion of, and the extraction or disturbance of any
natural resources from, Reclamation land, facilities, and waterbodies.
Regulations addressing public access to Reclamation property and
occasional public activities such as hiking, camping, boating, and
hunting, and closures are contained in 43 CFR part 423.
The demand for use of Reclamation land, facilities, and waterbodies
for many different kinds of activities has increased dramatically since
Reclamation began building Federal water supply, flood control, and
hydropower projects over 100 years ago. With increased and varied uses
has come confusion among the potential users of Reclamation land,
facilities, and waterbodies about the process of applying for the
various types of uses, the charges and fees associated with such uses,
and other concerns. The current rule does not adequately address this
confusion nor does it address prohibited and unauthorized uses of
Reclamation's land, facilities, and waterbodies and associated
penalties.
The Independent Offices Appropriation Act (IOAA) (31 U.S.C. 9701),
September 13, 1982, as amended, sets forth Congress' intent that any
use, permit, or similar thing of value provided by an agency is to be
self-sustaining and that the IOAA authorizes agencies to prescribe
rules establishing charges for such uses. The 1993 revision of the
Office of Management and Budget (OMB) Circular A-25 established Federal
policy directing that administrative costs be recovered for Government
services and fees for the use or sale of Government goods or resources
also be charged. OMB Circular A-25 provides information on the scope
and types of activities subject to use fees and the basis on which
these fees are established. It also provides guidance for agencies in
implementing such fees and charges. The use of Reclamation land,
facilities, or waterbodies is a use of Government resources, and as
such, the IOAA and OMB Circular A-25 direct Reclamation to recover the
costs and fees associated with the use of these resources.
Section 10 (43 U.S.C. 373) of the Reclamation Act of June 17, 1902,
provides the Secretary of the Interior (Secretary) with the authority
to issue rules as necessary for the purposes of carrying out the
provisions of the Act. Section 10 (43 U.S.C. 387) of the Reclamation
Project Act of 1939 provides the Secretary the authority, in his
discretion, to grant leases, licenses, easements, and rights-of-way.
These two Acts provide Reclamation with the general statutory authority
to issue rules on authorizing or prohibiting uses of Reclamation land,
facilities, and waterbodies.
This proposed rule addresses:
(a) The possession or occupancy of any portion of, or the
extraction or disturbance of any natural resource from, Reclamation
land, facilities, and waterbodies;
(b) The procedures to follow when the proposed use involves a
Reclamation easement;
(c) The procedures to apply for use of Reclamation land,
facilities, and waterbodies that involves the possession or occupancy
of any portion of, or the extraction or disturbance of any natural
resource from, Reclamation land, facilities, or waterbodies;
(d) The criteria Reclamation will use to evaluate applications;
(e) Our statutory authority and the basis for charging application
fees, recovering administrative costs, and collecting use fees
associated with authorized uses;
(f) Conditions under which application fees, administrative costs,
or use fees may be waived or reduced if determined appropriate by
Reclamation or as currently listed in OMB Circular A-25;
(g) The required terms and conditions associated with use
authorizations;
(h) Prohibited uses of Reclamation land, facilities, and
waterbodies and how Reclamation will resolve unauthorized uses;
(i) The criteria Reclamation will use to evaluate existing
authorizations for otherwise prohibited uses of Reclamation land,
facilities, and waterbodies; and
(j) The decisions and appeals process applicable to actions taken
under this part.
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II. Revision of Existing Rules
On December 20, 1983, Reclamation published 43 CFR part 429 titled
Procedure to Process and Recover the Value of Rights-of-Use and
Administrative Costs Incurred in Permitting Such Use in the Federal
Register at 48 FR 56223. Sections of this rule were revised on April
17, 2006, in the Federal Register at 71 FR 19802 to better correlate
with 43 CFR part 423. The sections that were revised or added were
Sec. 429.1 Purpose, Sec. 429.2 Definitions, Sec. 429.3 Establishment
of the value of rights-of-use, Sec. 429.6 Applications for rights-of-
use, Sec. 429.12 Applicability, and Sec. 429.13 General Restrictions.
On July 18, 2007, we published a notice in the Federal Register at
72 FR 39530 announcing the availability of the proposed rule for a 90-
day public comment period ending on October 16, 2007. We requested that
comments be submitted by the public using one of the following methods:
posting on the Federal rulemaking web site, through emailing, or
mailing to the listed address. As a result of comments received, the
proposed rule has been revised and is being provided to the public for
further comment through this publication in the Federal Register.
When the public comment period closes on this proposed rule, we
will consider comments and incorporate them, where appropriate. The
final rule will then be published in the Federal Register. That final
rule, titled Use of Bureau of Reclamation Land, Facilities, and
Waterbodies, will supersede the 1983 version and its 2006 modifications
in their entirety.
III. Informational Meetings
Informational meetings regarding the proposed rule will be held in
each of our five regions in the 17 western states. These meetings will
be informational in nature only. Public comments offered at the
meetings will not be recorded or accepted into the official record. You
must submit your comments as instructed in the ADDRESSES section of
this proposed rule. The dates, times, and locations of these meetings
listed by Reclamation region follow:
Pacific Northwest Region
Moses Lake, Washington--Wednesday, July 30, 2008, 4 p.m., Big Bend
Community College, 7662 Chanute Street NE.
Boise, Idaho--Wednesday, August 20, 2008, 4 p.m., Boise Public
Library, 715 South Capitol Boulevard.
For further information regarding the meetings, please contact
Diana Cross at telephone number 208-378-5020.
Mid-Pacific Region
Sacramento, California--Monday, August 18, 2008, 6 p.m., Federal
Office Building, 2800 Cottage Way.
For further information regarding the meeting, please contact Peter
Lucero at telephone number (916) 978-5101.
Lower Colorado Region
Boulder City, Nevada--Tuesday, August 5, 2008, 2 p.m., Lower
Colorado Regional Office, Mead Building.
Phoenix, Arizona--Wednesday, August 6, 2008, 2 p.m., Phoenix Area
Office, 6150 West Thunderbird Road.
Yuma, Arizona--Thursday, August 7, 2008, 9 a.m., Quartermaster
State Historic Park, 201 N. 4th Avenue.
For further information regarding the meetings, please contact
Robert Walsh at telephone number (702) 293-8421.
Upper Colorado Region
Grand Junction, Colorado--Wednesday, July 30, 1 p.m., Western
Colorado Area Office, 2764 Compass Drive.
Albuquerque, New Mexico--Tuesday, August 12, 2008, 1 p.m.,
Albuquerque Area Office, 555 Broadway NE.
Salt Lake City, Utah--Monday, August 14, 2008, 1 p.m., Upper
Colorado Regional Office, Bennett Federal Building, 125 South State
Street.
For further information regarding the meetings, please contact
Barry Wirth at telephone number (801) 524-3774.
Great Plains Region
Malta, Montana--Wednesday, August 20, 2008, 7 p.m., Marian Hills
Golf Course.
Helena, Montana--Thursday, August 21, 2008, 7 p.m., Helena Regional
Airport.
For further information regarding the meetings, please contact Mark
Andersen at telephone number (406) 247-7609.
IV. Summary of Changes, Comments, and Responses
This section of the preamble describes changes from the proposed
rule published on July 18, 2007, and provides responses to the comments
received on that proposed rule by section. Nearly 1,300 comments were
submitted by the public during the 90-day comment period. Of those
comments, approximately 95 percent related directly to Sec. 429.32,
which discusses how we will address existing uses that are otherwise
prohibited.
Comments received that are similar in nature have been categorized
by subject. Comments and our responses on general issues not related to
a specific section of the preamble or text of the proposed rule are
arranged first. This section is followed by comments regarding the
preamble of the previously proposed rule and our responses; and lastly,
the changes we have made, comments received, and our responses related
to specific sections of the text of the previously proposed rule.
General Comments and Responses
Comment: Support was expressed for the proposed changes to the
current rule and would like to see more private exclusive use areas
converted to public use areas.
Response: Due to the overwhelming reaction received during the
comment period, we have reconsidered this issue.
Comment: Appreciation was expressed for the high quality recreation
related services provided to the public by our non-Federal managing
partners.
Response: We will continue to work with our existing managing
partners and seek out additional managing partners, when appropriate,
to provide high quality recreation opportunities.
Comment: It appears that the intent of the proposed rule is to
phase out all private access to Reclamation waterbodies. This would
have an adverse effect on recreational boating and fishing as a whole
as well as on the economies of neighboring communities. Amend the rule
to strongly favor recreational uses.
Response: We do not intend to phase out the public's use of our
waterbodies. Recreational use of these waterbodies will continue under
this proposed rule.
Comment: The current rule is adequate and there is no need for
revision.
Response: Although some adjustments were made in the revision that
was published in 2006, additional revisions are needed to incorporate
current Federal regulations and policies concerning the use of Federal
land and cost recovery for those uses.
Comment: Clarification is needed to describe which bodies of water
or facilities will be subject to authorizations and fees.
Response: All waterbodies and facilities that are directly managed
by Reclamation are subject to the authorization requirements and fees
specified in the current rule and will continue to be so under the
provisions of the proposed rule.
Comment: A number of commenters, including managing partners,
expressed concern that they did not receive adequate notice regarding
the proposed rule making.
Response: We are providing a 60-day public comment period in
conjunction with the publishing of this proposed
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rule and sending a copy of this proposed rule to each commenter who
previously provided an address in a timely manner. Additionally,
informational meetings as listed in the SUPPLEMENTARY INFORMATION
section of this proposed rule are being conducted during the 60-day
comment period.
Comment: All water user organizations operating Reclamation
projects under project operation and maintenance contracts should be
specifically exempted from this proposed rule.
Response: Under Sec. 429.4(b)(5) of this proposed rule, operation
and maintenance activities on Reclamation land, facilities, and
waterbodies authorized by contracts with water user organizations or
Reclamation contractors do not require a use authorization.
Comment: Reclamation should be maximizing its return for the use of
Reclamation lands, facilities, and waterbodies by charging fees
appropriately.
Response: The proposed rule will comply with OMB Circular A-25
which directs the recovery of administrative costs and use fees.
Comment: Reclamation wants to eliminate all recreational and
residential uses and replace them with grazing or agricultural permits
at Nelson Reservoir in Montana.
Response: Nelson Reservoir is known to provide valuable public
recreational opportunities. We have no plans to eliminate all
recreational and residential uses at Nelson Reservoir and replace them
with grazing or agricultural permits.
Comment: Specific requirements addressing riparian zone protection
should be included in all grazing permits.
Response: Terms required in all use authorizations issued by
Reclamation are listed under Sec. 429.28 of the proposed rule.
Additional terms and conditions or requirements are determined on a
case-by-case basis to meet local, environmental compliance, and other
legal requirements as stated under Sec. 429.29 of the proposed rule.
Comment: It is unclear as to how this rule will affect non-Federal
managing partners and their ability to continue to administer the
Reclamation land and facilities that have been transferred to them at
reservoirs for recreation and related purposes.
Response: Paragraph 429.4(b) specifically excludes sites managed by
non-Federal managing partners from the requirements associated with
issuing recreational use authorizations that do not violate Subpart H
of these regulations (e.g., allow for new private exclusive
recreational or residential uses). Depending on the agreement between
Reclamation and the non-Federal entity, the entity may also be
authorized to issue use authorizations under Paragraph 429.5.
Comment: The mandated placement of fencing between private property
and the lakeshore at Lake Cascade, Idaho, will have a negative affect
on adjacent homeowners and many people who recreate in the area.
Response: Any operational or management plans for fencing at Lake
Cascade, Idaho, are not mandated by or directly related to this
proposed rule.
Preamble Comments and Responses
Only those sections of the preamble to the proposed rule that
received comments are discussed in this section.
IV. Procedural Requirements
Comment: This section should include a meaningful analysis of
Reclamation's intent for proposing Subpart H of the proposed rule.
Response: The reason we are including Subpart H is because it is
our responsibility to notify the public of uses that are prohibited on
Reclamation land, facilities, and waterbodies; thus the primary purpose
of Subpart H. Based on the comments received in 2007, we have revised
our approach with regard to existing private exclusive recreational and
residential use, while maintaining the prohibition on any new such
uses.
1. Regulatory Planning and Review (Executive Order (E.O.) 12866)
Comment: Under paragraph (a) this is a significant rule which under
E.O. 12866 will have an effect of $100 million or more on the economy
due to additional financial burdens being placed on the public.
Response: The proposed rule actually lessens some of the impacts
placed on the economy. As an example, the application fee is reduced
from $200 to $100 in the proposed rule. The total amount of fees and
charges we annually collect for uses of Reclamation land, facilities,
and waterbodies is well under $100 million.
Comment: Paragraph (b) states that this rule would not create a
serious inconsistency or otherwise interfere with actions of another
Federal agency. Other Federal agencies, however, seemingly continue to
allow for private exclusive recreational or residential uses.
Response: Each Federal agency has authorities, regulations, and
policies that are unique to their mission and responsibilities and will
necessarily result in differing practices for the management of lands
and resources. How we address private exclusive recreational and
residential uses has no impact on how other Federal agencies address
that issue.
2. Regulatory Flexibility Act
Comment: Because this rule expands use fees and authorizations to
include navigable waterbodies and facilities, many associated small
businesses will be required to submit reports to the agency to comply
with the fee determining process.
Response: The current rule requires that applicable use fees be
paid for authorized uses of Reclamation waterbodies and facilities
pursuant to OMB Circular A-25; the proposed rule does not expand on
that requirement. Additionally, the proposed rule does not impose a
reporting or recordkeeping requirement on small businesses.
3. Small Business Regulatory Enforcement Fairness Act
Comment: The expansion of fees and cost recovery to facilities and
waterbodies could result in increased costs or prices for consumers,
individual industries, etc.
Response: Section 429.1 of the current rule requires that
applicable fees and cost recovery be assessed for the authorized use of
Reclamation lands as well as facilities and waterbodies. The proposed
rule does not expand on that requirement.
5. Takings (E.O. 12630 and E.O. 13406)
Comment: Reclamation's determination that this proposed rule would
have no implications for takings of private property rights is invalid.
Response: This rule applies only to Reclamation land, facilities,
and waterbodies. Any private personal property lawfully placed on
Reclamation land, facilities, or waterbodies is there only by our
permission through a use authorization. No real property rights are
conveyed for Reclamation land, facilities, and waterbodies through such
a use authorization. Additionally, Reclamation is not responsible for
maintaining the value of private personal property, particularly when
the authorized uses are not in compliance with the terms of the
existing use authorization.
10. National Environmental Policy Act of 1969 (NEPA)
Comment: This action does have a significant effect on the quality
of the human environment because of the
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impacts it would have on development in major urban areas. There is a
need for an environmental assessment or environmental impact statement
pursuant to NEPA.
Response: The proposed rulemaking is a categorically excluded
action pursuant to Department of the Interior Departmental Manual 516,
Chapter 2, Appendix 1, Exclusion 1.10. As applications for specific use
authorizations are evaluated under the proposed rule, the appropriate
Reclamation office will determine the type of NEPA analysis that is
warranted for the specific use requested.
13. Clarity of This Regulation
Comment: In general, the proposed rule is vague, confusing, and/or
inconsistent in content.
Response: Changes have been made to the previously proposed rule to
clarify sections that were specifically identified by commenters as
unclear. We have also made editorial changes to improve the readability
of the proposed rule.
Changes, Comments, and Responses Related to the Text of the Proposed
Rule
Subpart A--Purpose, Definitions, and Applicability
Comment: The effects of Sec. Sec. 429.3, 429.4, and 429.5 on non-
Federal managing partners are not clear and appear to be contradictory.
Section 429.3(d) states that grazing, farming, and other agricultural
uses require an authorization under this part. Section 429.4(b),
however, states that activities at sites managed by non-Federal
managing partners under Public Law 89-72 do not require authorization
under this part. Additionally, Sec. 429.5 states that only Reclamation
is authorized to issue use authorizations under this part.
Response: Section 429.4(b) lists uses that are not subject to this
proposed rule and specifically includes ``recreational activities at
sites managed by non-Federal managing partners under Public Law 89-72,
titled Federal Water Project Recreation Act, July 9, 1965, as amended .
* * *'' Therefore Sec. Sec. 429.3(d) and 429.5 would not apply to our
non-Federal managing recreation partners for recreational related uses.
Section 429.1 This section describes the purpose of 43 CFR part
429.
To be consistent with changes made at Sec. 429.32, we added
paragraph (f) to this section that describes how we will address
existing permitted uses which are otherwise prohibited, including the
criteria for approval or denial of requests to renew or transfer these
permits. The paragraphs following were appropriately renumbered. Minor
editorial changes were made to this section as compared to the
previously proposed rule.
Section 429.2 This section establishes the definitions for terms
that are used in part 429.
We made changes to this section as compared to the previously
proposed rule by adding definitions for the following terms: easement,
managing partner, part 21 of this title and public needs. We also
broadened the definition of water user organization.
Comment: The definition for private exclusive recreational or
residential use is ambiguous and should more clearly explain what the
extended period of time is that creates such a use.
Response: The inclusion of a time component does create confusion
and would wrongly imply that certain exclusive uses could be allowable
for a limited time without a use authorization. We have now removed the
reference to ``extended periods of time.'' Normal recreational
activities, including camping for up to 14 days within a 30 day period,
are specifically exempted by section 429.4(a). We have also provided
examples of the most common instances of private exclusive recreational
and residential use in the definition itself.
Comment: The definitions in the proposed rule for Reclamation land
and Reclamation facility should be amended to restore the words from
the current rule under Sec. 429.6. This change would limit the
applicability of the proposed rule to those lands and facilities that
are in the control and custody of Reclamation; and would recognize that
although Reclamation lands continue to be owned by the United States,
they are managed by and placed in the custodial control of the water
user organizations with whom Reclamation holds contracts.
Response: This proposed rule applies to all land and facilities
under our jurisdiction. It is our responsibility to manage these lands
in the best interest of the United States and in compliance with
applicable Federal statutes, regulations, and policies.
Section 429.3 This section describes the types of uses of and
activities on Reclamation land, facilities, and waterbodies that
typically require a use authorization under part 429.
We made only minor editorial changes to this section as compared to
the previously proposed rule. It should be noted that part 5 of this
title addresses some types of filming and photography on certain areas
under the jurisdiction of the Department of the Interior. However, part
5 of this title is specific to other agencies within the Department of
the Interior not including Reclamation.
Comment: Section 429.4 is not needed since the uses that require
authorization are listed in Sec. 429.3. Only individuals who are
seeking an authorization will be using this rule.
Response: If there are common uses that do not require
authorization, it is important that we notify the public in this
proposed rule.
Section 429.4 This section lists the types of uses of and
activities on Reclamation land, facilities, and waterbodies that do not
require authorization under part 429.
We made editorial changes to this section as compared to the
previously proposed rule.
Comment: Paragraph (a) of this section states the types of
activities that do not require authorization under this part which
raises a concern regarding the well-being and safety of managing water
user organization employees as they are performing their operation and
maintenance duties on a daily basis. This paragraph seems to allow the
general public access to all facilities. Such accessibility will not
only increase operation and maintenance costs as a result of increased
wear on roadways, but also dumping, vandalism, and opportunities for
accidents.
Response: Access to lands, facilities, and waterbodies under our
jurisdiction is administered under 43 CFR part 423. Water user
organizations should work through their local Reclamation office to
establish closures for areas or facilities such as canals, laterals, or
water pipelines that are unsafe or not appropriate for general public
access as established under Subpart B of 43 CFR part 423.
Comment: Paragraph (b)(5) of this section which suggests that
Reclamation contracts for water supply or water operations do not
require Reclamation authorization is directly contradictory to Sec.
429.5 which states that water user associations have no authority to
permit uses of Reclamation property.
Response: Paragraph (b)(5) of this section states that Reclamation
contracts for water supply or water operations do not require a use
authorization. Under paragraph (b)(6) of this section water user
associations are not required to obtain use authorizations for their
contractual operation and maintenance activities on Reclamation land,
facilities, or waterbodies.
Comment: There is no need to list the uses that do not need
authorization since we have listed those that do under Sec. 429.3.
[[Page 42240]]
Response: We have provided information in this section specifying
what common uses do not require authorization for clarification and as
notification to the general public and our managing partners.
Comment: Clearly list what activities are authorized on Reclamation
land. Be specific to water conveyance facilities.
Response: We have listed uses requiring an authorization at Sec.
429.3. These uses must be authorized when they are on Reclamation land,
facilities, or waterbodies which includes water conveyance facilities.
Comment: Clarify what activities managed by other Federal agencies
or Interior bureaus are exempted from authorization under this part.
Response: Activities managed by other Federal agencies on
Reclamation land, facilities, or waterbodies must be covered by an
agreement or authority as specified in paragraph (b) of this section.
For example, some recreation sites on Reclamation lands along the
Colorado River are managed by the National Park Service through
statutory authority.
Comment: Differentiating between how lands are managed directly by
Reclamation or by other Federal agencies or bureaus will create
disparate treatment.
Response: Each Federal agency has its own missions and authorities.
These divergent missions and authorities will necessarily result in
differing practices for the management of lands and resources.
Comment: The 14-day limit for camping should be increased.
Response: Reclamation's 14-day limit in any 30-day period is
established under 43 CFR part 423.33(b). This proposed rule does not
address that limitation.
Section 429.5 This section addresses who is authorized under part
429 to issue use authorizations.
We have made changes to this section as compared to the previously
proposed rule to state that recreation managing partners and water user
organizations whose existing contracts with Reclamation allow them to
do so may issue some limited use authorizations to third parties for
activities on Reclamation land, facilities, and waterbodies provided
those limited use authorizations meet the requirements listed in this
section. It should be noted that all revenues collected for the use of
Reclamation land, facilities, and waterbodies must be handled in
compliance with all statutory, regulatory, and policy requirements.
Comment: Water user organizations are specifically prohibited by
this section from authorizing the use of project lands and as a result
existing use authorization that they have issued may be nullified.
Response: Water user organizations who have assumed responsibility
for operation and maintenance of Reclamation land, facilities, or
waterbodies pursuant to a contract with Reclamation may issue limited
use authorizations to third parties for activities on Reclamation land,
facilities, or waterbodies when all of the requirements listed in Sec.
429.5 have been met.
Comment: The proposed rule contradicts the terms of existing
contracts between Reclamation and water user organizations for
operation and maintenance of Reclamation projects.
Response: Water user organizations who have assumed responsibility
for operation and maintenance of Reclamation land, facilities, or
waterbodies pursuant to a contract with Reclamation may issue limited
use authorizations to third parties for activities on Reclamation land,
facilities, or waterbodies when all of the requirements listed in Sec.
429.5 have been met.
Comment: The proposed rule would adversely affect water user
organizations' ability to issue grazing permits and collect subsequent
revenues from those permits creating a financial burden on the water
user organizations and their farmers.
Response: As noted above, we have made modifications that may allow
for use authorizations to be issued by water user organizations.
Financial issues can be impacted by project-specific laws, but in all
cases revenues should be handled in accordance with all applicable
statutes, regulations, and policies.
Section 429.6 This section details when water user organizations
must approve Reclamation's use authorizations.
This section has been changed compared to the previously proposed
rule to reflect provisions found in section 10 of the Reclamation
Project Act of 1939 (43 U.S.C. 387) and to express the need for
compatibility between use authorizations and a managing water user
organization's ability to operate and maintain the facilities for which
they have contractual operation and maintenance responsibility.
Comment: Retain the language in the current rule or add language to
the proposed rule that clearly states that water user organizations
will continue to be alerted to uses that might interfere with their
operation and maintenance of Reclamation project lands.
Response: We have made changes to this section to re-incorporate
some of the language in the current rule and to more clearly express
the need for compatibility between requested uses and water user
organizations' ability to manage the facilities for which they have
contractual operation and maintenance responsibility.
Subpart B--Proposed Uses Involving Reclamation Easements
Section 429.7 This section discusses the use of land not owned by
Reclamation, but where Reclamation holds easements.
We have made changes to paragraphs (a), (b), and (c) of this
section compared to the previously proposed rule. These changes are
intended to improve the clarity of this subpart and not to change its
intent or purpose.
Comment: Reclamation should be required to issue a consent document
if the use does not unreasonably interfere with its easement. Doing so
would increase the revenues being collected.
Response: Reclamation lacks the authority to require users of
private lands to pay use fees to Reclamation for the use of those
private lands. When issuing a consent document is determined to be
compatible with the intended project purposes for which the easement
was obtained, all other appropriate and applicable fees are collected
as required by regulation and policy.
Section 429.8 This section discusses whether fees are required for
the use of Reclamation easements.
We made only minor editorial changes to this section as compared to
the previously proposed rule. We received no comments on this section.
Subpart C--Requesting Authorizations To Use Reclamation Land,
Facilities, and Waterbodies
Section 429.9 This section explains what you should do before
filing an application.
We made no changes to this section as compared to the previously
proposed rule. We received no comments on this section.
Section 429.10 This section describes what application forms to use
and how to determine which application form is appropriate to use.
We made no changes to this section as compared to the previously
proposed rule. We received no comments on this section.
Section 429.11 Where the use authorization application forms can be
found is provided in this section.
[[Page 42241]]
We made no changes to this section as compared to the previously
proposed rule.
Comment: The forms as currently drafted do not include enough
specificity regarding the required information to be submitted with an
application. The current rule at Sec. 429.6 is clearer and more
detailed in listing what is required.
Response: This comment will be taken into consideration as we
review Reclamation's Right-of Use Form 7-2540 for possible adjustments
this year.
Section 429.12 The appropriate location for filing an application
is listed in this section.
We made no changes to this section as compared to the previously
proposed rule. We received no comments on this section.
Section 429.13 This section tells how long the application review
process will take.
We made minor editorial changes to this section as compared to the
previously proposed rule.
Comment: Seven days should be an adequate amount of time to
acknowledge receipt of an application and a determination to either
accept or deny the request should be made within fourteen days.
Response: While we will strive to respond to all applicants as
quickly as possible, there are certain times of the year when the
volume of applications exceeds our staff resources. Consequently we may
not be able to respond within seven days. In order to meet the time
frames suggested by this comment at such peak times, we would have to
increase our staffing resources which would lead to higher fees for all
applicants. We believe the approach we have selected is in the best
interest of all parties.
Section 429.14 The criteria Reclamation will consider when
reviewing applications is described in this section.
We made minor editorial changes to this section for clarity.
Comment: The criteria used in reviewing applications are too broad
and cannot be applied fairly and impartially.
Response: We review each use application as it is submitted on a
case-by-case basis considering the criteria under Sec. 429.14. As
stated on the submitted application forms, we may request additional
information as necessary to assist us in making a determination as to
whether the proposed use of Reclamation land, facilities, or
waterbodies is appropriate.
Comment: Add an additional criterion that would require the
proposed activity receive the consent of any affected water user
organization.
Response: Although we have not incorporated this comment into the
criteria under Sec. 429.14, we have made changes to Sec. 429.6 to
more specifically address this issue.
Section 429.15 This section discusses whether Reclamation is
required to issue use authorizations.
We changed this section by adding a statement to the affect that
all use authorizations must meet required criteria prior to issuance.
Comment: Reclamation should not have the authority to issue
authorizations at its discretion. Reclamation should be required to
have a justification for declining an application.
Response: We issue use authorizations at our discretion in order to
protect the interests of the United States, as all use authorizations
must be compatible with the purposes for which the Reclamation managed
lands are being administered.
Subpart D--Application Fees and Administrative Costs
Section 429.16 The amount of the application fee and when to pay
the fee is described in this section.
We made minor editorial changes to this section as compared to the
previously proposed rule. We received no comments on this section.
Section 429.17 This section explains under what circumstances
administrative costs will be collected.
We made no changes to this section as compared to the previously
published rule. We received no comments on this section.
Section 429.18 This section explains when administrative costs will
be due and payable.
We made minor editorial changes to this section as compared to the
previously published rule.
Comment: The administrative costs associated with the application
process are not well-defined.
Response: Administrative costs are determined on a case-by-case
basis depending on the staff time required to evaluate and process the
application, and to monitor, and terminate the use authorization when
necessary. The definition of administrative costs in Sec. 429.2
provides a listing of the most common elements associated with
administrative costs. In addition, Sec. 429.20 provides that upon
written request an explanation of the administrative costs for a
particular application will be provided.
Section 429.19 This section describes what the process is when the
initial estimate for administrative costs is insufficient.
We made no changes to this section as compared to the previously
published rule. We received no comments on this section.
Section 429.20 This section describes how to request a detailed
explanation of the administrative costs.
We made no changes to this section as compared to the previously
published rule. We received no comments on this section.
Section 429.21 This section describes what occurs if the
administrative costs are overpaid.
We made minor editorial changes to this section as compared to the
previously proposed rule. We received no comments on this section.
Section 429.22 This section discusses whether future administrative
costs can be charged after a use authorization is issued by
Reclamation.
We made changes in paragraph (b) of this section to more clearly
state how use authorization holders will be notified of additional
required fees and payments due.
Comment: The language in this section is ambiguous and arbitrary
because it does not provide businesses with a fair basis upon which to
predict costs. Fees for monitoring costs and the adjustment of fees to
meet current conditions could have adverse effects on existing
operations.
Response: We cannot anticipate all administrative type costs in the
future. Thus, we must have the ability to collect additional
administrative costs when necessary.
Subpart E--Use Fees
Section 429.23 How Reclamation determines use fees is described in
this section.
We made no changes to this section as compared to the previously
proposed rule.
Comment: The valuation basis for determining fees is not adequately
defined and should be more fully developed and researched.
Response: The valuation process is established in our Directives
and Standards, LND 05-01 Real Property Appraisal, which may be found on
our Internet site.
Section 429.24 This section explains when use fees should be paid.
We made minor editorial changes to this section as compared to the
previously proposed rule. We received no comments on this section.
Section 429.25 This section describes the length of time allowed to
both submit a use fee payment and accept the offered use authorization.
[[Page 42242]]
We made minor editorial changes to this section as compared to the
previously published rule. We received no comments on this section.
Subpart F--Reductions or Waivers of Application Fees, Administrative
Costs, and Use Fees
Section 429.26 This section describes under what conditions
Reclamation may waive or reduce costs or fees.
We made changes to paragraph (a) of this section to better define
how a determination for fee waiver or reduction is made.
Comment: This section is confusing and arbitrary. The conditions
under which a waiver can be granted are too broad and not well defined.
Most applicants would qualify to apply for a waiver or a reduction in
fees.
Response: The table found under paragraph (a) of this section
specifically lists under what situations we may determine that it is
appropriate to reduce or waive fees.
Comment: No change should be made to the language in the current
rule regarding fee waivers or reductions.
Response: We are making changes to this section to comply with the
Independent Offices Appropriation Act (IOAA) (31 U.S.C. 9701),
September 13, 1982, as amended and the 1993 revision of the Office of
Management and Budget (OMB) Circular A-25. The IOAA sets forth
Congress' intent that any use, permit, or similar thing of value
provided by an agency is to be self-sustaining and that agencies may
prescribe rules establishing charges for such uses. OMB Circular A-25
established Federal policy which requires administrative costs be
recovered for Government services, and fees for the use or sale of
Government goods or resources also be charged.
Comment: This section should be eliminated and no fee waivers
should be allowed.
Response: Under certain circumstances, fee waivers may be allowed
under the current rule and section 6 of OMB Circular A-25.
Comment: Allowing fee waivers or reductions would limit the
revenues currently being generated and returned to Reclamation and in
some instances water user organizations.
Response: Section 6 of OMB Circular A-25 allows for a reduced fee
or waiver under certain circumstances.
Subpart G--Terms and Conditions of Use Authorizations
Section 429.27 This section describes the general information that
is contained in each use authorization.
We made no changes to this section as compared to the previously
proposed rule. We received no comments on this section.
Section 429.28 Terms and conditions that apply to all use
authorizations from Reclamation are outlined in this section.
We made minor editorial changes in this section as compared to the
previously proposed rule.
Comment: We disagree with paragraph (a)(3) of this section which
requires terms in every use authorization allowing Reclamation to
unilaterally terminate a use authorization.
Response: It is our responsibility to properly manage the land
under our jurisdiction. On occasion we may need to terminate a use
authorization and even do so unilaterally. However, such instances are
rare and limited to very unusual circumstances which we have specified
in this section.
Section 429.29 This section describes additional terms and
conditions or requirements that will be included in a use
authorization.
We made minor editorial changes to this section as compared to the
previously proposed rule. We received no comments on this section.
Section 429.30 This section explains whether a use authorization
can be transferred or assigned to another individual or entity.
We made minor editorial changes to this section as compared to the
previously proposed rule. We received no comments on this section.
Subpart H--Terms and Conditions of Use Authorizations
Section 429.31 This section describes what the prohibited uses are
on Reclamation land, facilities, and waterbodies.
We made minor editorial changes to this section as compared to the
previously proposed rule.
Comment: A state transportation agency opposes paragraph (b)(1)(v)
of this section. The agency is concerned that this section will be in
direct opposition to their policies and will deny property owners
access to existing easements.
Response: For property owners that currently have authorization to
access their existing easements, this proposed rule does not include
any changes. Those who are crossing Reclamation lands without
authorization will need to follow the procedures to obtain
authorization. The documentation of these access situations will
benefit and protect all parties.
Section 429.32 How Reclamation will address existing uses which are
otherwise prohibited is discussed in this section.
We have revised the approach with regards to existing private
exclusive recreational and residential uses that were not previously
addressed by 43 CFR part 21. Specifically, under the July 2007 proposed
rule such uses would have eventually had to be removed. Under the
revised rule, such uses can remain if certain criteria are met, and
they will be treated in a manner very similar to that outlined in 43
CFR part 21.
Under Sec. 429.32(b)(1), we have added additional criteria to
which all existing authorized private exclusive recreational and
residential uses of Reclamation land, facilities, and waterbodies,
including those defined under 43 CFR part 21, are subject.
The overall majority of comments received relate to this section of
the proposed rule. Most of these commenters hold existing use
authorizations for cabin sites or other recreational or residential
uses, including boat docks, on Reclamation land, facilities, or
waterbodies.
Comment: Many commenters are concerned that their existing use
authorizations for private exclusive recreational and residential uses
will not be renewed upon expiration.
Response: We will renew private exclusive recreational and
residential use authorizations provided that the requirements of this
proposed rule are met. Some cabin sites are also governed by 43 CFR
part 21, and those regulations (which govern all Department of the
Interior agencies, not just Reclamation) are not affected by this
rulemaking; however, because the monitoring and enforcement procedures
in this proposed rule are actually based on the existing rules in 43
CFR part 21, this dual regulatory coverage should have little practical
impact. Such renewals will be for a period not to exceed 20 years and
will be subject to periodic reviews that could potentially result in an
early termination.
Comment: Holders of existing use authorizations for private
exclusive uses stated that they have invested a significant amount of
money in improvements located on Reclamation land, facilities, or
waterbodies, and do not want to lose that investment.
Response: A use authorization for private exclusive recreational or
residential use does not vest an interest in Reclamation land,
facilities, or waterbodies with the holder of the use authorization.
Any physical improvements made by the holder of the
[[Page 42243]]
use authorization should be done so with the understanding that the
ownership of the land, facilities, or waterbodies will continue to
remain with the United States.
Comment: The holders of use authorizations are better stewards of
the land than Reclamation. They invest many hours in not only keeping
their own authorized use area cleaned up, but also cleaning up adjacent
areas.
Response: We recognize that many holders of use authorizations are
responsible caretakers. As the manager of those Federal lands, however,
we have the ultimate responsibility for those Federal lands, and we
must make certain that they are managed in the best interests of the
United States.
Comment: It is ambiguous and unclear as to when 43 CFR part 21
applies. Specifically list which segments of 43 CFR part 21 will be
followed or specify that it will be followed in its entirety.
Response: We have decided to use the requirements in 43 CFR part 21
to develop the requirements that will apply to all existing private
exclusive recreational and residential use authorizations. This should
result in consistent treatment of uses regardless of whether the part
21 regulations technically apply. For example, personal cabin sites
were subject to the part 21 regulations if they were authorized
directly by Reclamation, but similar sites were exempt from these
regulations if the area was managed under a concession contract. Now,
both types of sites will be subject to this proposed rule which mimics
the procedures previously established in part 21. The cabin sites
directly authorized by Reclamation remain under 43 CFR part 21 as well.
Comment: Section 429.32(a) states that renewal requests for cabin
sites administered under 43 CFR part 21 will be reviewed by the
Commissioner and approved where appropriate. The term appropriate sends
a foreboding message and is ambiguous.
Response: The responsibility for renewing use authorizations for
recreational or residential uses has been returned to the appropriate
field office under this proposed rule.
Comment: Clearly define under what rare exceptions waivers would be
granted by the Commissioner for renewals of recreational or residential
uses of Reclamation land.
Response: The requirement for a waiver in order to renew an
existing private exclusive recreational or residential use
authorization has been removed from this proposed rule.
Comment: Non-profit organizations that hold use authorizations for
activities such as summer youth camps should not be subject to the same
regulations and fee requirements as for-profit organizations.
Response: Section 429.26(a) of the proposed rule and the table that
follows describe under what circumstances we may determine that it is
appropriate to reduce or waive fees. Item 5 of the table specifically
applies to non-profit or educational entities when the use provides a
general public benefit.
Comment: If private boat docks are eliminated as a result of this
proposed rule, public boat docks which are not always conveniently
located and are over used will receive increased pressure.
Response: Provided that existing authorized boat docks meet the
requirements, this proposed rule would not prevent the use
authorization from being renewed.
Section 429.33 This section describes the consequences for using
Reclamation land, facilities, and waterbodies without authorization.
We made changes to paragraphs (b), (e), and (f) of this section for
clarification purposes only. In addition, we added a new paragraph
under (b) to specify how the interest rate to be applied to the use fee
for unauthorized uses will be determined.
Comment: Existing commercial outfitters and/or concessionaires
should have a preferential right of renewal for their authorizations.
Other Federal agencies and Department of the Interior bureaus utilize
this method.
Response: Through Reclamation policies and directives, we have
instituted a process of fair and open competition with regard to
concession and similar contracts.
Comment: There is no valid reason for capping the fees that can be
collected for unauthorized use to 6 years.
Response: We have removed the 6 year cap on collecting use fees for
unauthorized uses of Reclamation land, facilities, and waterbodies. The
applicable statute of limitations will be applied based on the
circumstances associated with each unauthorized use.
Subpart I--Decisions and Appeals
Comment: The appeal process follows a path within the Department of
the Interior. A fair appeal process would include a representative
small group rather than a supervisor to supervisor system.
Response: The appeals process includes a two tier approach. First a
review by a Reclamation office other than the office that made the
final determination. Next, if the appellant still disagrees with that
decision, the matter can be reviewed by an outside agency should the
appellant choose to pursue the issue. We believe this is a fair
process.
Section 429.34 The decisionmaker for Reclamation's final
determinations is listed in this section and provides when that
decision will be effective.
We made minor editorial changes to this section as compared to the
previously proposed rule. We received no comments on this section.
Section 429.35 This section explains if and when an appeal can be
made to a final determination.
We made no changes to this section as compared to the previously
proposed rule. We received no comments on this section.
Section 429.36 This section describes if and when a Commissioner's
decision can be appealed. The process for and timeliness of such an
appeal is also discussed in this section.
We made minor editorial changes to this section as compared to the
previously proposed rule. We received no comments on this section.
Section 429.37 This section discusses what happens to monies owed
to the United States during an appeal process.
We made minor editorial changes to this section as compared to the
previously proposed rule. We received no comments on this section.
V. Distribution Table
The following table indicates each section of the original 1983
rule, as modified in 2006, and where each was incorporated into the
proposed rule or not included as the case may be.
------------------------------------------------------------------------
Old section New section
------------------------------------------------------------------------
429.1................................. 429.1.
429.2(a)-(n).......................... 429.2.
429.3(a).............................. 429.23.
429.3(b).............................. 429.33(a) and (c).
429.3(c).............................. 429.33(a) and (b).
429.4................................. 429.26.
429.5................................. Removed.
429.6................................. 429.7(b); 429.12; and 429.14.
429.6(a).............................. 429.10.
429.6(a)(1)-(3)....................... Removed. Now contained in
Application Forms.
429.6(b).............................. 429.16; 429.20-429.22; and
429.26.
429.6(c)(1)-(4)....................... 429.26.
429.6(d)(1)-(4)....................... 429.13(a) and (b).
429.6(e).............................. 429.19; 429.22.
429.6(f).............................. 429.23-429.25.
429.6(g).............................. Removed. See Preamble.
429.7(a).............................. 429.27-429.30.
429.7(b).............................. 429.6.
429.7(c).............................. Removed.
429.7(d).............................. 429.28(a)(3).
[[Page 42244]]
429.7(e).............................. 429.28(a)(1).
429.7(f).............................. Removed.
429.8................................. 429.28(a)(2), (3), and (4).
429.9(a).............................. 429.28(a)(1).
429.9(b).............................. 429.28(b).
429.10(a)............................. 429.34(a) and (b); 429.35(a),
(b), and (c).
429.10(b)............................. 429.36(a) and (b).
429.11................................ Removed.
429.12(a)............................. 429.1; 429.3-429.6.
429.12(b)............................. 429.4(a).
429.12(c)............................. 429.26.
429.12(d)............................. 429.4(g).
429.12(e)............................. Removed.
429.13................................ 429.1; 429.3.
------------------------------------------------------------------------
VI. Procedural Requirements
1. Regulatory Planning and Review (Executive Order (E.O.) 12866)
OMB has determined that this rule is not a significant rule and has
not reviewed this rule under the requirements of E.O. 12866. We have
evaluated the impacts of this rule as required by E.O. 12866 and have
determined that it is not a significant regulatory action. The results
of our evaluation follow:
(a) This rule will not have an effect of $100 million or more on
the economy. It would not adversely affect in any material way the
economy, productivity, competition, jobs, environment, public health or
safety, or State, local, and tribal governments or communities. The
original rule covered only Reclamation lands. It was modified in 2006
to explicitly incorporate uses of Reclamation facilities and
waterbodies. The proposed rule requires collecting an initial,
nonrefundable deposit of $100 (referred to as the ``application fee''),
the recovery of additional administrative costs in excess of the
initial application fee, and a fee for the use of Reclamation land. It
should be noted that this rule reduces the initial application fee from
$200 ($150 refundable under specific circumstances) to a nonrefundable
$100 application fee. The rule does not change the requirement for full
cost recovery of additional administrative costs in excess of the $100
nonrefundable application fee or the requirement to collect the fee for
use of Reclamation land, facilities, and waterbodies. Like the current
rule, this rule provides for waivers or reductions of costs and fees
under unique circumstances as determined to be appropriate by us
incompliance with OMB Circular A-25.
(b) This rule would not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. Since this
rule is specific to Reclamation land, facilities, and waterbodies, any
impact on another agency would be minimal. Nevertheless, nothing in
this rule precludes us from cooperating with other agencies on proposed
actions that may impact or require the use of Reclamation's land,
facilities, and waterbodies. An example of our working with other
agencies is this rule's requirement to use Standard Form (SF) 299,
Application for Transportation and Utility Systems and Facilities on
Federal Lands, under E.O. 13327. The purpose of E.O. 13327 is to
promote the efficient and economical use of America's real property
assets. This proposed rule also requires the use of Form 7-2540, Bureau
of Reclamation Right-of-Use Application Form, for all other requested
uses.
(c) This rule does not alter the budgetary effects of entitlements,
grants, user fees, concessions, loan programs, water contracts,
management agreements, or the rights and obligations of their
recipients.
(d) This rule does not raise any novel legal or policy issues. The
recovery of administrative fees and charging of application and use
fees are required by the IOAA, OMB Circular A-25, and the current rule.
2. Regulatory Flexibility Act
The Department of the Interior (Interior) certifies that this
document will not have a significant economic effect on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601, et seq.). This rule does not impose a requirement for small
businesses to report or keep records on any of the requirements
contained in this rule. A small business's wish to apply to use
Reclamation land, facilities, or waterbodies is strictly voluntary. One
of the purposes of this rule is to provide small business applicants
and others with the requirements they must follow when applying for
such a use. An Initial Regulatory Flexibility Analysis is not required
and, accordingly, a Small Entity Compliance Guide is not required.
3. Small Business Regulatory Enforcement Fairness Act
This proposed rule is not a major rule under the Small Business
Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule:
(a) Does not have an annual effect on the economy of $100 million
or more. There are no major changes in the costs or fees charged to
applicants.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, local, or tribal
government agencies, or geographic regions. It is anticipated that this
rule will not result in significant increases in administrative costs
or use fees for any one applicant, but it will clarify for the public
the basis for determining such costs and fees.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
United States-based enterprises to compete with foreign-based
enterprises. The cost to the private sector requesting use of
Reclamation land, facilities, or waterbodies is a small fraction of a
percent of an individual entity's total cost of doing business. Under
this rule, such requests are made on a voluntary basis.
4. Unfunded Mandates Reform Act
This proposed rule does not impose an unfunded mandate or a
requirement to expend monies on the part of State, local, or tribal
governments or communities, or the private sector of $100 million or
more annually. This rule does not have a significant or unique effect
on State, local, or tribal governments or communities, or the private
sector. Requests from any of these entities to use Reclamation land,
facilities, and waterbodies are strictly voluntary. If a requested use
is authorized by Reclamation, the recovery of administrative costs and
the payment of use fees associated with such use are required by law,
OMB Circular, and regulation. There are provisions to allow a reduction
or waiver of such costs and fees, at our discretion, when specific
criteria are met. We are not imposing a duty, requirement, or mandate
on State, local, or tribal governments or communities, or the private
sector to request such uses. Thus, a statement containing information
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is
not required.
5. Takings (E.O. 12630 and E.O. 13406)
Under the criteria in E.O. 12630 and E.O. 13406, this proposed rule
does not have any implications of takings of property rights. This rule
sets forth the requirements for applying to use Reclamation land,
facilities, and waterbodies. It also clarifies the basis for charging
application and use fees, and for the recovery of administrative costs
under the requirements of the IOAA and OMB Circular A-25. A Takings
Implication Assessment is not required.
6. Federalism (E.O. 13132)
Under the criteria in E.O. 13132, the rule does not have any
federalism implications to warrant the preparation
[[Page 42245]]
of a Federalism Assessment. The rule is not associated with, nor will
it have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government. A
Federalism Assessment is not required.
7. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule:
(a) Does not unduly burden the judicial system;
(b) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(c) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
8. Consultation With Indian Tribes (E.O. 13175)
Under the criteria of E.O. 13175, Reclamation has evaluated this
rule and determined that it would have no substantial effects on
federally recognized Indian Tribes. This rule does not apply to land
under the sovereign ownership of federally recognized Indian Tribes.
9. Paperwork Reduction Act
This rule does require information collection from 10 or more
applicants and a submission under the Paperwork Reduction Act (PRA) is
required. However, the information collection requirements associated
with this rule have been previously submitted to OMB for review and
have received approval under the requirements of the PRA. The SF 299,
Application for Transportation and Utility Systems and Facilities on
Federal Lands (used for access across our land, facilities, and
waterbodies), was authorized by OMB No. 1004-0189, expiring on November
30, 2008. OMB also has approved the information collection in this rule
(using the Bureau of Reclamation Right-of-Use Application Form 7-2540)
and has assigned approval number 1006-0003, expiring on March 31, 2009.
We estimate the burden associated with this latter information
collection to be 2 hours per application. We use the information
provided by applicants to determine the nature of the requested use and
whether the requested use of our land, facilities, or waterbodies
interferes with project operations or project security, or may create
other issues. The information provided on the applications is also used
to ensure, where appropriate and applicable, the technical and
financial resources of the applicant are sufficient to complete the
construction of the infrastructure or project.
10. National Environmental Policy Act of 1969
This rule does not constitute a major Federal action and would not
have a significant effect on the quality of the human environment.
Therefore, this rule does not require the preparation of an
environmental assessment or environmental impact statement under the
requirements of the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.), and its regulations.
11. Information Quality Act
In developing this rule, there was no need to conduct or use a
study, experiment, or survey requiring peer review under the
Information Quality Act (Pub. L. 106-554).
12. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in the E.O. 13211. A Statement of Energy Effects is not required.
13. Clarity of This Regulation
We are required by E.O. 12866 and 12988, and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means each rule we publish must:
--Be logically organized;
--Use the active voice to address readers directly;
--Use clear language rather than jargon;
--Be divided into short sections and sentences; and
--Use lists and tables wherever possible.
If you feel we have not met these requirements, please send
comments to Reclamation as instructed in the ADDRESSES section of this
proposed rule. Please make your comments as specific as possible,
referencing specific sections and how they could be improved. For
example, ``section XXX.XX could be more clearly written'', or ``the
first sentence in section XXX.XX(a) is too long'', or ``the data in
section XXX.XX should be placed in a table.''
14. Public Comments
Before including your name, address, phone number, e-mail address,
or other personal identifying information in your comment, you should
be aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Informational meetings regarding the proposed rule are being hosted
by Reclamation in each Region. The dates, times, and locations of these
meetings are listed in the SUPPLEMENTARY INFORMATION section of this
proposed rule. These meetings will be informational in nature only.
Public comments will not be recorded or accepted into the official
record at the meetings. In order to be considered, your comments must
be submitted to Reclamation as instructed in the ADDRESSES section of
this proposed rule.
List of Subjects in 43 CFR Part 429
Administrative practice and procedures, Public lands, Reclamation,
Recreation and recreation areas, and Land rights-of-way.
Dated: July 14, 2008.
Kameran L. Onley,
Acting Assistant Secretary--Water and Science.
For the reasons stated in the preamble, the Bureau of Reclamation
proposes to revise 43 CFR part 429 as follows:
PART 429--USE OF BUREAU OF RECLAMATION LAND, FACILITIES, AND
WATERBODIES
Subpart A--Purpose, Definitions, and Applicability
Sec.
429.1 What is the purpose of this part?
429.2 What definitions are used in this part?
429.3 What types of uses are subject to the requirements and
processes established under this part?
429.4 What types of uses are not subject to the requirements and
processes established under this part?
429.5 Who is authorized to issue use authorizations under this part?
429.6 When must water user organizations also approve use
authorizations?
Subpart B--Proposed Uses Involving Reclamation Easements
429.7 Can I use land where Reclamation holds an easement?
429.8 Is there a fee for uses involving a Reclamation easement?
Subpart C--Requesting Authorization to Use Reclamation Land,
Facilities, and Waterbodies
429.9 What should I do before filing an application?
429.10 What application form should I use?
429.11 Where can I get the application forms?
429.12 Where do I file my application?
429.13 How long will the application review process take?
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429.14 What criteria will Reclamation consider when reviewing
applications?
429.15 Is Reclamation required to issue a use authorization?
Subpart D--Application Fees and Administrative Costs
429.16 How much is the application fee and when should it be paid?
429.17 When will Reclamation collect administrative costs?
429.18 When do I have to pay the administrative costs?
429.19 What happens if the initial estimate for administrative costs
is insufficient?
429.20 Can I get a detailed explanation of the administrative costs?
429.21 If I overpay Reclamation's administrative costs, can I get a
refund?
429.22 Can Reclamation charge me additional administrative costs
after I receive a use authorization?
Subpart E--Use Fees
429.23 How does Reclamation determine use fees?
429.24 When should I pay my use fee?
429.25 How long do I have to submit my payment for the use fee and
accept the offered use authorization?
Subpart F--Reductions or Waivers of Application Fees, Administrative
Costs, and Use Fees
429.26 When may Reclamation reduce or waive costs or fees?
Subpart G--Terms and Conditions of Use Authorizations
429.27 What general information appears in use authorizations?
429.28 What terms and conditions apply to all use authorizations?
429.29 What other terms and conditions may be included in my use
authorization?
429.30 May use authorizations be transferred or assigned to others?
Subpart H--Prohibited and Unauthorized Uses of Reclamation Land,
Facilities, and Waterbodies
429.31 What uses are prohibited on Reclamation land, facilities, and
waterbodies?
429.32 How will Reclamation address currently authorized existing
private exclusive recreational or residential uses?
429.33 What are the consequences for using Reclamation land,
facilities, and waterbodies without authorization?
Subpart I--Decisions and Appeals
429.34 Who is the decisionmaker for Reclamation's final
determinations?
429.35 May I appeal Reclamation's final determination?
429.36 May I appeal the Commissioner's decision?
429.37 Does interest accrue on monies owed to the United States
during my appeal process?
Authority: 43 U.S.C. 373; 43 U.S.C. 373b, 43 U.S.C. 387; 43 CFR
21; Pub. Law 108-447, Title VIII; 31 U.S.C. 9701, as amended.
Subpart A--Purpose, Definitions, and Applicability
Sec. 429.1 What is the purpose of this part?
The purpose of this part is to notify the public that any
possession or occupancy of any portion of, and the extraction or
disturbance of any natural resources from Reclamation land, facilities,
or waterbodies are prohibited without written authorization from
Reclamation, unless excepted as listed in Sec. 429.4. This part
describes:
(a) How to apply to Reclamation for a use authorization to allow
your activity on Reclamation land, facilities, and waterbodies;
(b) How Reclamation reviews and processes your application,
including the criteria for approval or denial of your application;
(c) The requirement for collection of application and use fees and
the recovery of administrative costs;
(d) How Reclamation determines and collects costs and fees;
(e) Prohibited uses on Reclamation land, facilities, and
waterbodies;
(f) How Reclamation will address existing authorized uses which are
otherwise prohibited, including the criteria for approval or denial of
requests to renew these use authorizations;
(g) The process and penalties associated with resolution of
unauthorized uses; and
(h) How to appeal an action or determination made under this part.
Sec. 429.2 What definitions are used in this part?
The following definitions are used in this part:
Administrative costs means all costs incurred by Reclamation in
processing your application and all costs associated with evaluating,
issuing, monitoring, and terminating your use authorization on
Reclamation land, facilities, and waterbodies. Administrative costs are
distinct and separate from application and use fees and typically
include, but are not limited to:
(1) Determining the use fee;
(2) Evaluating and documenting environmental and cultural resources
compliance;
(3) Performing engineering review;
(4) Preparation of the use authorization; and
(5) Personnel and indirect costs directly associated with these
actions.
Applicant means you as any person or entity (such as a private
citizen, business, non-governmental organization, public entity, Indian
tribe, or foreign government) who submits an application requesting use
of Reclamation land, facilities, and waterbodies.
Application means either Form 7-2540 or SF 299. The choice of
application form is dependent on the type of use requested.
Application fee means a $100 nonrefundable charge, which you must
submit with your application to cover the costs of our initial review
of your request. Application fees are distinct and separate from
administrative costs and use fees.
Commissioner means the senior executive of the Bureau of
Reclamation, Department of the Interior.
Consent document means a written agreement or notification listing
conditions which will prevent unreasonable interference with our
easement on non-Reclamation land.
Cultural resource means any prehistoric, historic, architectural,
sacred, or traditional cultural property and associated objects and
documents that are of interest to archaeology, anthropology, history,
or other associated disciplines. Cultural resources include
archaeological resources, historic properties, traditional cultural
properties, sacred sites, and cultural landscapes that are associated
with human activity or occupation.
Easement refers to an interest in land that consists of the right
to use or control the land for a specific purpose, but does not
constitute full ownership of the land.
Environmental compliance means complying with the requirements of
the National Environmental Policy Act; the Endangered Species Act; the
Clean Water Act; the Clean Air Act; the Comprehensive Environmental
Response, Compensation, and Liability Act; applicable regulations
associated with these statutes; and other related laws and regulations.
Form 7-2540 means the Bureau of Reclamation Right-of-Use
Application form required for all proposed uses of Reclamation land,
facilities, and waterbodies, except those associated with construction
and/or placement of transportation, communication, and utility systems
and facilities.
Grantee means you as the recipient or holder of a use authorization
regardless of the contractual format.
Interior means the United States Department of the Interior.
Managing Partner means a Federal or non-Federal public entity that
manages land, facilities, or waterbodies through a management agreement
with Reclamation entered pursuant to the Federal Water Project
Recreation Act, as amended.
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Part 21 of this title means Title 43 of the Code of Federal
Regulations part 21, which is titled Occupancy of Cabin Sites on Public
Conservation and Recreation Areas.
Part 423 of this chapter means Title 43 of the Code of Federal
Regulations part 423, which is titled Public Conduct on Bureau of
Reclamation Facilities, Lands, and Waterbodies.
Possession or occupancy and possess or occupy mean to control, use,
or reside on Reclamation land, facilities, or waterbodies.
Private exclusive recreational or residential use means any use
that involves structures or other improvements used for recreational or
residential purposes to the exclusion of public uses or which create
the perception of such exclusion and are not associated with the
official management of a Reclamation project. This includes, but is not
limited to, boat docks, cabin sites and associated improvements
(including those currently defined in part 21 of this title),
residences, trailers, manufactured or mobile homes, structures, roads,
or other improvements as determined by Reclamation.
Public Entity means States, political subdivisions or agencies
thereof; public and quasi-governmental authorities and agencies; and
agencies of the Federal Government.
Public needs mean the recreational requirements of the general
public at areas where existing authorized private exclusive
recreational or residential uses are present.
Reclamation means the Bureau of Reclamation, United States
Department of the Interior.
Reclamation facility means any facility under our jurisdiction. The
term includes, but is not limited to: Buildings, canals, dams, ditches,
drains, fish and wildlife facilities, laterals, powerplants, pumping
plants, recreation facilities, roads, switchyards, transmission and
telecommunication lines, and warehouses.
Reclamation land means any land under the jurisdiction of, or
administered by, Reclamation and may include, but is not limited to:
(1) All land acquired by Reclamation through purchase,
condemnation, exchange, or donation for Reclamation project and water
related purposes;
(2) All land withdrawn by Reclamation from the public domain for
Reclamation purposes; and
(3) All interests in land acquired by Reclamation, including
easements and rights exercised by the United States under the 1890
Canal Act (43 U.S.C. 945).
Reclamation law means the Reclamation Act of June 17, 1902 (32
Stat. 388, 43 U.S.C. 371, et seq.), and all Acts which supplement or
amend the 1902 Act.
Reclamation project means any land, facilities, or waterbodies used
for water supply, water delivery, flood control, hydropower, or other
authorized purposes including fish, wildlife, and recreation
administered by Reclamation under Federal laws.
Reclamation waterbodies means any body of water situated on
Reclamation land and under Reclamation jurisdiction. Examples of
Reclamation waterbodies include, but are not limited to, reservoirs,
lakes, and impoundments.
Regional Director means any one of the five representatives of the
Commissioner, or their delegates, who are responsible for managing
their respective region's land, facilities, and waterbodies and for the
decisions made under this part.
Standard Form (SF) 299 means the form titled Application for
Transportation and Utility Systems and Facilities on Federal Lands used
when requesting permission for construction and/or placement of
transportation, communication, or utility systems and facilities.
Unauthorized use means use of Reclamation land, facilities, and
waterbodies without proper authorization.
Use authorization means a document that defines the terms and
conditions under which we will allow you to use Reclamation land,
facilities, and waterbodies. Use authorizations can take the form of
easements, leases, licenses, permits, and consent documents. This
document is also referred to as a ``right-of-use'' in part 423 of this
chapter.
Use fee means the amount due to Reclamation for the use of Federal
land, facilities, or waterbodies under our jurisdiction or control. Use
fees are distinct and separate from application fees and administrative
costs.
Valuation means the method used to establish the fee for a use
authorization by appraisal, waiver valuation, or other sound or
generally accepted business practice.
Water User Organization means any legal entity established under
State law that has entered into a contract with the United States
pursuant to the Federal reclamation laws.
We, us, or our mean the Bureau of Reclamation.
You or I mean an applicant, grantee, or unauthorized user.
Sec. 429.3 What types of uses are subject to the requirements and
processes established under this part?
Possession or occupancy of, or extraction or removal of natural
resources from, Reclamation land, facilities, or waterbodies require a
use authorization in accordance with this part. Typical uses of or
activities on Reclamation land, facilities, or waterbodies regulated by
this part include, but are not limited to:
(a) Commercial filming and photography;
(b) Commercial guiding and outfitting;
(c) Commercial or organized sporting events;
(d) Grazing, farming, and other agricultural uses;
(e) Infrastructure, such as transportation, telecommunications,
utilities, and pipelines;
(f) Organized recreational activities, public gatherings, and other
special events that involve the possession or occupancy of Reclamation
lands;
(g) Removal of, or exploration for, sand, gravel, and other mineral
resources;
(h) Timber harvesting, or removal of commercial forest products or
other vegetative resources; and
(i) Any other uses deemed appropriate by Reclamation, subject to
the exclusions listed in Sec. 429.4.
Sec. 429.4 What types of uses are not subject to the requirements and
processes established under this part?
(a) Individual, non-commercial use of Reclamation land, facilities,
or waterbodies for occasional activities such as hiking, camping for
periods of 14 days or less during any period of 30 consecutive days,
sightseeing, picnicking, hunting, swimming, boating, and fishing,
consistent with applicable laws, regulations and policies. Public
conduct associated with these activities is governed by part 423 of
this chapter;
(b) While not subject to other requirements and processes
established under this part, the following types of uses must be in
compliance with the requirements in Subpart H:
(1) Recreational activities at sites managed by non-Federal
managing partners under Public Law 89-72, titled Federal Water Project
Recreation Act, July 9, 1965;
(2) Activities managed by other Federal agencies or Interior
bureaus by agreement or under other authority;
(3) Activities at sites directly managed by Reclamation where fees
or fee schedules are established for general public recreation use;
(4) Uses authorized under concession contracts on Reclamation land,
facilities, and waterbodies;
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(5) Reclamation contracts for water supply or water operations;
(6) Authorized operation and maintenance activities on Reclamation
land, facilities, and waterbodies undertaken by water user
organizations, or their contractors, or by Reclamation contractors;
(7) Agreements and real property interests granted for the
replacement or relocation of facilities, such as highways, railroads,
telecommunication, or transmission lines or infrastructure governed by
Section 14 of the Reclamation Project Act of August 4, 1939 (43 U.S.C.
389). Payments to equalize land values may still be required and
administrative costs may still be recovered; and
(8) Activities specifically authorized under other Federal statutes
or regulations.
Sec. 429.5 Who is authorized to issue use authorizations under this
part?
Unless otherwise provided by law or regulation, only Reclamation or
another Federal agency acting for Reclamation under delegated authority
is authorized to issue use authorizations that convey an interest in
Reclamation land, facilities, or waterbodies. Recreation managing
partners under the Federal Water Projects Recreation Act, 16 U.S.C.
4601, et seq., and water user organizations who have assumed
responsibility for operation and maintenance of Reclamation land,
facilities, or waterbodies pursuant to a contract with Reclamation may
issue limited use authorizations to third parties for activities on
Reclamation land, facilities, or waterbodies when all of the following
apply:
(a) The recreation managing partner or water user organization is
authorized to do so under its contract with Reclamation;
(b) Such limited use authorizations do not convey ownership or
other interest in the Federal real property;
(c) The uses authorized are not permanent or for an indefinite
period;
(d) The limited use authorization does not provide for an automatic
right of renewal at the third party's option;
(e) The limited use authorization is fully revocable at the
discretion of Reclamation; and
(f) All revenues collected for the use of Reclamation land,
facilities, and waterbodies are handled in compliance with all
statutory, regulatory, and policy requirements.
Sec. 429.6 When must water user organizations also approve use
authorizations?
(a) Use authorizations for easements and rights-of way for periods
in excess of 25 years are also subject to approval from water user
organizations under contract obligation for repayment of the project or
division and for those water user organizations who have assumed
responsibility for operation and maintenance. This requirement does not
apply to any other type of use authorizations.
(b) At the discretion of the responsible Regional Director,
concurrence for uses of less than 25 years may be requested of the
appropriate water user organization. At a minimum, the appropriate
water user organizations will be notified of all use authorizations
prior to their issuance to avoid potential conflicts between the
requested use authorization and the water user organizations' need to
operate and maintain the facilities for which they have contractual
responsibility.
Subpart B--Proposed Uses Involving Reclamation Easements
Sec. 429.7 Can I use land where Reclamation holds an easement?
(a) To prevent conflicts where Reclamation holds an easement on
land owned by others, you should submit an application for the proposed
use. If after review of the application, Reclamation determines that
your requested use would not unreasonably interfere with Reclamation's
easement, a consent document may be issued to you. The consent document
will contain the conditions with which you must comply to ensure that
your use will not unreasonably interfere with Reclamation's use of its
easement.
(b) In accordance with subpart C of this part, you should submit
either SF 299 or Form 7-2540 to the local Reclamation office to request
a consent document.
(c) If you are not the underlying landowner, you must also secure
the permission of the landowner for your requested use of the area
covered by Reclamation's easement.
Sec. 429.8 Is there a fee for uses involving a Reclamation easement?
Reclamation will not charge a use fee for a consent document.
However, depending upon the complexity of your requested use and issues
associated with it, Reclamation may charge an application fee and
administrative costs, unless waived in accordance with subpart F of
this part.
Subpart C--Requesting Authorization to Use Reclamation Land,
Facilities, and Waterbodies
Sec. 429.9 What should I do before filing an application?
Before filing an application, it is important that you contact the
local Reclamation office to discuss your proposed use. This discussion
can help expedite your application process.
Sec. 429.10 What application form should I use?
You must use one of the following application forms depending on
the nature of your requested use:
(a) Use SF 299 to request a use authorization for the placement,
construction, and use of energy, transportation, water, or
telecommunication systems and facilities on or across all Federal
property including Reclamation land, facilities, or waterbodies.
Examples of such uses are:
(1) Canals;
(2) Communication towers;
(3) Fiber-optics cable;
(4) Pipelines;
(5) Roads;
(6) Telephone lines; and
(7) Utilities and utility corridors.
(b) Use Form 7-2540 to request any other type of use authorization.
Examples of such uses are:
(1) Commercial filming and photography;
(2) Commercial guiding and outfitting;
(3) Commercial or organized sporting events;
(4) Grazing, farming, and other agricultural uses;
(5) Organized recreational activities, public gatherings, and other
special events;
(6) Removal of, or exploration for, sand, gravel, and other mineral
materials;
(7) Timber harvesting, or removal of commercial forest products or
other vegetative resources; and
(8) Any other uses deemed appropriate by Reclamation.
(c) Application forms may not be required where Reclamation
solicits competitive bids.
Sec. 429.11 Where can I get the application forms?
Both forms can be obtained from any Reclamation office or from our
official internet Web site at http://www.usbr.gov. These forms contain
specific instructions for application submission and describe
information that you must furnish. However, when you submit either form
to your local Reclamation office for review, the form
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must contain your original signature as the applicant.
Sec. 429.12 Where do I file my application?
File your completed and signed application, including the $100
nonrefundable application fee, with the Reclamation office having
jurisdiction over the land, facility, or waterbody associated with your
request. Reclamation office locations may be found on http://www.usbr.gov, the official Reclamation internet Web site.
Sec. 429.13 How long will the application review process take?
(a) Reclamation will acknowledge in writing your completed and
signed application and application fee within 30 calendar days of
receipt. Reclamation may request additional information needed to
process your application, such as legal land descriptions and detailed
construction specifications.
(b) The processing time depends upon the complexity of your
requested use, issues associated with it, and the need for additional
information from you.
(c) Should your requested use be denied at any time during the
review process, Reclamation will notify you in writing of the basis for
the denial.
Sec. 429.14 What criteria will Reclamation consider when reviewing
applications?
Reclamation will consider the following criteria when reviewing
applications:
(a) Compatibility with authorized project purposes, project
operations, safety, and security;
(b) Environmental compliance;
(c) Compatibility with public interests;
(d) Conflicts with Federal policies and initiatives;
(e) Public health and safety;
(f) Availability of other reasonable alternatives; and
(g) Best interests of the United States
Sec. 429.15 Is Reclamation required to issue a use authorization?
No. The issuance of a use authorization is at Reclamation's
discretion. At a minimum, the criteria listed at Sec. 429.14 must be
considered prior to issuance of any use authorizations. Not all
requests will be authorized. If issued, Reclamation will provide only
the least estate, right, or possessory interest needed to accommodate
the approved use.
Subpart D--Application Fees and Administrative Costs
Sec. 429.16 How much is the application fee and when should it be
paid?
You must remit a nonrefundable application fee of $100 to cover
costs associated with our initial review of your application, unless
the payment is waived pursuant to subpart F of this part. This initial
review will determine if your requested use is appropriate for
consideration and not likely to interfere with Reclamation project
purposes or operations.
Sec. 429.17 When will Reclamation collect administrative costs?
Reclamation will collect, in advance, its administrative costs for
processing your application, except as provided under subpart F of this
part.
Sec. 429.18 When do I have to pay the administrative costs?
(a) Following the initial review, you will be notified in writing
whether your application appears to be appropriate for further
processing. At that time, Reclamation will give you an initial estimate
of administrative costs required to continue processing your
application.
(b) You must pay these initial, estimated administrative costs
before Reclamation can continue to process your application, unless you
are granted a waiver of administrative costs under subpart F of this
part. If payment is not received within 90 days after the estimate is
provided to you, Reclamation may close your file. If this occurs and
you later wish to proceed, you must submit both a new application and
another $100 nonrefundable application fee.
Sec. 429.19 What happens if the initial estimate for administrative
costs is insufficient?
If the initial estimate to cover Reclamation's administrative costs
is found to be insufficient, Reclamation will notify you in writing of
the additional amount needed. You must pay the amount requested before
Reclamation will continue processing your application.
Sec. 429.20 Can I get a detailed explanation of the administrative
costs?
Yes, you are entitled to receive an explanation of all
administrative costs relevant to your specific application. You must
request this information in writing from the Reclamation office where
you submitted your application.
Sec. 429.21 If I overpay Reclamation's administrative costs, can I
get a refund?
If, in reviewing your application, Reclamation uses all the monies
you have paid, you will not receive a refund regardless of whether you
receive a use authorization. If the money collected from you exceeds
administrative costs, a refund of the excess amount will be made to you
consistent with Reclamation's financial policies.
Sec. 429.22 Can Reclamation charge me additional administrative costs
after I receive a use authorization?
(a) After you receive your use authorization, Reclamation may
charge you for additional administrative costs incurred for activities
such as:
(1) Monitoring your authorized use over time to ensure compliance
with the terms and conditions of your use authorization; and
(2) Periodic analysis of your long-term use to adjust your use fee
to reflect current conditions.
(b) If your additional payment is not received by Reclamation
within 90 days after notification to you in writing of the additional
administrative costs, Reclamation may take action to terminate your use
authorization.
Subpart E--Use Fees
Sec. 429.23 How does Reclamation determine use fees?
The use fee is based on a valuation or by competitive bidding. Use
fees may be adjusted as deemed appropriate by Reclamation to reflect
current conditions, as provided in the use authorization.
Sec. 429.24 When should I pay my use fee?
(a) If Reclamation offers you a use authorization, you must pay the
use fee in advance, unless you are granted a waiver under subpart F of
this part.
(b) Your use authorization will clearly state the use fee. Should
periodic payments apply, your use authorization will also describe when
you should pay those periodic use fees.
Sec. 429.25 How long do I have to submit my payment for the use fee
and accept the offered use authorization?
You have 90 days to accept and return the use authorization and
required fees, otherwise Reclamation may consider the offer to be
rejected by you and your file may be closed. If this occurs and you
later wish to proceed, you must submit a new application and another
$100 nonrefundable application fee. You may not commence your use of
Reclamation's land, facilities, or waterbodies until Reclamation has
issued a use authorization to you. A use authorization will only be
issued upon receipt by Reclamation of all required costs and fees, and
the use authorization signed by you.
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Subpart F--Reductions or Waivers of Application Fees,
Administrative Costs, and Use Fees
Sec. 429.26 When may Reclamation reduce or waive costs or fees?
(a) As determined appropriate by Reclamation and approved and
documented by the applicable Regional Director, Reclamation may waive
the application fee, or waive or reduce charges for administrative
costs or the use fee as indicated by a [check] in the following table:
----------------------------------------------------------------------------------------------------------------
Situations where costs and fees may be reduced or Administrative
waived Application fee costs Use fee
----------------------------------------------------------------------------------------------------------------
(1) The use is a courtesy to a foreign government or if [check] [check] [check]
comparable fees are set on a reciprocal basis with a
foreign government....................................
(2) The use is so minor or short term that the cost of [check] [check] [check]
collecting fees is equal to or greater than the value
of the use............................................
(3) The use will benefit the general public with no [check] [check] [check]
specific entity or group of beneficiaries readily
identifiable..........................................
(4) Applicant is a public entity or Indian tribe....... [check] [check] [check]
(5) Applicant is a non-profit or educational entity and [check] [check] [check]
the use provides a general public benefit.............
(6) Applicant is a rural electric association or [check] [check] [check]
municipal utility or cooperative......................
(7) The use directly supports United States' programs [check] [check] [check]
or projects...........................................
(8) The use secures a reciprocal land use of equal or [check] [check] [check]
greater value to the United States....................
(9) Applicant for a consent document is the underlying [check] [check] (\1\)
owner of the property subject to Reclamation's
easement..............................................
(10) The use is issued under competitive bidding....... [check] [check] (\2\)
----------------------------------------------------------------------------------------------------------------
\1\ Not Applicable.
\2\ Set by Bid.
(b) When a statute, executive order, or court order authorizes the
use and requires specific treatment of administrative cost recovery and
collection of use fees associated with that use, that requirement will
be followed by Reclamation.
Subpart G--Terms and Conditions of Use Authorizations
Sec. 429.27 What general information appears in use authorizations?
Each use authorization will contain:
(a) An adequate description of the land, facilities, or waterbodies
where the use will occur;
(b) A description of the specific use being authorized together
with applicable restrictions or conditions that must be adhered to;
(c) The conditions under which the use authorization may be
renewed, terminated, amended, assigned or transferred, and/or have the
use fee adjusted; and
(d) Primary points of contact and other terms and conditions.
Sec. 429.28 What terms and conditions apply to all use
authorizations?
(a) By accepting a use authorization under this part, you agree to
comply with and be bound by the following terms and conditions during
all construction, operation, maintenance, use, and termination
activities:
(1) The grantee agrees to indemnify the United States for, and hold
the United States and all of its representatives harmless from, all
damages resulting from suits, actions, or claims of any character
brought on account of any injury to any person or property arising out
of any act, omission, neglect, or misconduct in the manner or method of
performing any construction, care, operation, maintenance, supervision,
examination, inspection, or other activities of the grantee.
(2) The United States, acting through Reclamation, Department of
the Interior, reserves rights to construct, operate, and maintain
public works now or hereafter authorized by the Congress without
liability for severance or other damage to the grantee's activities or
facilities.
(3) Reclamation may, at any time and at no cost or liability to the
United States, unilaterally terminate the use authorization if
Reclamation determines that:
(i) The use has become incompatible with authorized project
purposes or a higher public use is identified;
(ii) Termination is necessary for operational needs of the project;
or
(iii) There has been a natural disaster, a national emergency, a
need arising from security requirements, or an immediate and overriding
threat to the public health and safety.
(4) Reclamation may, at any time and at no cost or liability to the
United States, unilaterally terminate any use authorization if
Reclamation determines that the grantee has failed to use the use
authorization for its intended purpose. Further, failure to construct
or use for any continuous 2-year period may constitute a presumption of
abandonment of the requested use and cause termination of the use
authorization.
(5) Reclamation may, at any time and at no cost or liability to the
United States, unilaterally terminate any use authorization if the
grantee fails to comply with all applicable Federal, State, and local
laws, regulations, ordinances, or terms and conditions of any use
authorization, or to obtain any required permits or authorizations
(b) The Regional Director may, upon advice of the Solicitor, modify
these terms and conditions with respect to the contents of the use
authorization to meet local and special conditions.
Sec. 429.29 What other terms and conditions may be included in my use
authorization?
Reclamation may include additional terms, conditions, or
requirements that address environmental law compliance, the protection
of cultural and natural resources, other interests of the United
States, and local laws and regulations.
Sec. 429.30 May use authorizations be transferred or assigned to
others?
Your use authorization may not be transferred or assigned to others
without prior written approval of Reclamation, unless specifically
provided for in your use authorization. Should you wish to transfer or
assign your use authorization to another individual or entity, you
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must contact the Reclamation office that issued your use authorization
prior to taking such action.
Subpart H--Prohibited and Unauthorized Uses of Reclamation Land,
Facilities, and Waterbodies
Sec. 429.31 What uses are prohibited on Reclamation land, facilities,
and waterbodies?
(a) Reclamation prohibits any use that would not comply with part
423 of this chapter.
(b) Reclamation prohibits any use that would result in new private
exclusive recreational or residential use of Reclamation land,
facilities, or waterbodies.
(1) Examples include, but are not limited to, the following:
(i) Cabins, mobile homes, residences, outbuildings, and related
structures, and associated landscaping, patios, decks, and porches;
(ii) Boat houses, docks, moorings, piers, and launch ramps;
(iii) Floating structures or buildings, including moored vessels
used as residences or unauthorized business sites;
(iv) Sites for such activities as hunting, fishing, camping, and
picnicking (other than transitory uses allowed under part 423 of this
chapter) that attempt to exclude general public access; and
(v) Access to private land, facilities, or structures when other
reasonable alternative access is available or can be obtained.
(2) Buildings and structures used by concessionaires or managing
partners to facilitate their operations or that are made available by
them for the general, non-exclusive use of the public are not
prohibited. Examples include, but are not limited to the following:
(i) Boat docks available for short-term use by the public;
(ii) Marina slips available for rent by the public;
(iii) Publicly available boat ramps;
(iv) Houseboats available for short-term rent by the public;
(v) Stores and restaurants;
(vi) Employee housing; and
(vii) Rental cabins, hotels, campgrounds, and other short-term
lodging facilities.
Sec. 429.32 How will Reclamation address currently authorized
existing private exclusive recreational or residential uses?
(a) The administration and potential renewal of use authorizations,
existing as of January 1, 2008, for private exclusive recreational or
residential uses of Reclamation land, facilities, and waterbodies, as
defined in this part, will be administered in accordance with the
following requirements. Renewal requests may only be approved when all
criteria are met.
(1) Compatibility with authorized project purposes, project
operations, safety, and security;
(2) Compatibility with public needs;
(3) Environmental compliance;
(4) Public health and safety; and
(5) Current in financial obligations to Reclamation.
(b) Reclamation will review all existing private exclusive
recreational or residential uses for compliance with the required
criteria at least once every 5 years. Reclamation will provide the
holder of the use authorization with a written report of the results of
the compliance review. The report will state whether the existing use
meets the required criteria listed in this section and will list any
deficiencies that can be corrected. A minimum of 90 days will be
provided to make corrections identified in the report. Failure to
correct the deficiencies within the time provided in the report will
result in termination of the use authorization.
(c) A determination by Reclamation that existing private exclusive
recreational or residential uses are not compatible with public needs,
made under paragraph (a)(2) of this section, will only be finalized
through a public process involving one or more public meetings.
Examples of such public processes include resource management plan
development, recreation demand analysis studies, and project
feasibility studies. Determinations that existing private exclusive
recreational or residential uses are not compatible with public needs
will be published in the Federal Register. If a determination of
incompatibility with public needs is made, affected use authorizations
may be extended up to 5 years from the date of publication in the
Federal Register if the Regional Director determines that such
extension is necessary to the fair and efficient administration of this
part.
(d) In addition to the periodic reviews described above,
Reclamation will review the existing private exclusive recreational or
residential uses for compliance with the required criteria at least 6
months prior to the expiration date of the existing use authorization.
Reclamation will provide the holder of the use authorization with a
written report of the results of the compliance review results. The
report will state whether the existing use meets the required criteria
under this section as applicable and will list any deficiencies that
must be corrected prior to a renewal of the use authorization. A
minimum of 90 days will be provided prior to the expiration of the
permit to make corrections identified in the report.
(e) Any renewal of use authorizations for existing private
exclusive recreational or residential uses of Reclamation land,
facilities, and waterbodies will not exceed 20 year terms. Any such
renewals will be subject to the periodic reviews described in
subsection (b), and these reviews could potentially result in the
termination of the use agreement prior to the end of the term of years.
(f) Upon non-renewal or termination of a use authorization for an
existing private exclusive recreational or residential use of
Reclamation land, facilities, and waterbodies, the grantee will remove
any improvements from the site within 90 days from the date of
termination or non-renewal of the use authorization. The grantee will
return the property as near as possible to its original undisturbed
condition. Any property not removed within 90 days may be removed by
Reclamation at the expense of the prior grantee.
(g) Renewal decisions of use authorizations for existing private
exclusive recreational or residential uses located on Reclamation land,
facilities, and waterbodies will be made by the Regional Director.
(h) Requests for the renewal, transfer, extension, or reissuance of
use authorizations for private exclusive recreational or residential
uses that expired prior to the effective date of this part or are
subsequently not renewed or terminated under the procedures of this
section will be considered requests for uses prohibited under Sec.
429.31 and will not be approved. Conversely, requests for the renewal,
transfer, extension, or reissuance of use authorizations for private
exclusive recreational or residential uses that were in existence on
the effective date of these regulations and that are in compliance with
all requirements of the applicable use authorization at the time a
request is made will not be considered requests for uses prohibited
under Sec. 429.31, with transfers and assignments of such use
authorizations being subject to the requirements of Sec. 429.30.
(i) Unauthorized existing private exclusive recreational or
residential uses will be administered under Sec. Sec. 429.31 and
429.33 and part 423 of this chapter.
Sec. 429.33 What are the consequences for using Reclamation land,
facilities, and waterbodies without authorization?
(a) Unauthorized use of Reclamation land, facilities, or
waterbodies is a trespass against the United States. You may be subject
to legal action including
[[Page 42252]]
criminal prosecution if your actions violate part 423 of this chapter.
A criminal conviction could result in a fine and/or imprisonment for up
to 6 months in accordance with 43 U.S.C. 373b(b).
(b) Reclamation may seek to collect the following:
(1) All administrative costs incurred by Reclamation in resolving
the unauthorized use;
(2) All costs of removing structures, materials, improvements, or
any other real or personal property;
(3) All costs of rehabilitation of the land, facilities, or
waterbodies as required by Reclamation.
(4) The use fee that would have applied had your use been
authorized from the date your unauthorized use began;
(5) Interest accrued on the use fee from the date your unauthorized
use began as specified in paragraph (b)(4) of this section; and
(6) The interest charge rate shall be the greater of either the
rate prescribed quarterly in the Federal Register by the Department of
the Treasury for application to overdue payments or the interest rate
of 0.5 percent per month. The interest charge rate will be determined
as of the due date and remain fixed for the duration of the delinquent
period.
(c) As an unauthorized user, you will receive a written notice in
which Reclamation will outline the steps you need to perform to cease
your unauthorized use.
(d) If appropriate, you will receive a final determination letter
detailing the applicable costs and fees, as set forth under paragraph
(b) of this section, which must be paid to Reclamation for your
unauthorized use. Payment must be made within 30 days of receipt of
this letter unless Reclamation extends this deadline in writing.
Failure to make timely payment may result in administrative or legal
action being taken against you.
(e) Reclamation may determine that issuing a use authorization to
you for an existing unauthorized use is not appropriate; and may deny
future use applications by you because of this behavior. As noted at
Sec. 429.15, use authorizations are always issued at Reclamation's
discretion.
(f) If, however, your unauthorized use is deemed by Reclamation to
be an unintentional mistake, consideration may be given to issuing a
use authorization provided that you qualify and meet the criteria at
Sec. 429.14; and, in addition to the normal costs, you agree to pay
the following:
(1) The use fee that would have been owed from the date your
unauthorized use began; and
(2) Interest accrued on the use fee from the date your unauthorized
use began as specified in paragraph (f)(1) of this section.
(g) Under no circumstances will your unauthorized use or payment of
monies to the United States in association with an unauthorized use
either:
(1) Create any legal interest or color of title against the United
States; or
(2) Establish any right or preference to continue the unauthorized
use.
Subpart I--Decisions and Appeals
Sec. 429.34 Who is the decisionmaker for Reclamation's final
determinations?
(a) The appropriate Reclamation Regional Director, or the Regional
Director's designee, makes any final determinations associated with
actions taken under this rule and will send that final determination in
writing to you by mail.
(b) The Regional Director's final determination will take effect
upon the date of the determination letter.
Sec. 429.35 May I appeal Reclamation's final determination?
(a) Yes, if you are directly affected by such a determination, you
may appeal in writing to the Commissioner within 30 calendar days after
the date of the Regional Director's determination letter.
(b) You have an additional 30 calendar days after the postmark of
your written appeal to the Commissioner within which to submit any
additional supporting information.
(c) The Regional Director's determination will remain in effect
until the Commissioner has reviewed your appeal and provided you with
that decision, unless you specifically request a stay and a stay is
granted by the Commissioner.
Sec. 429.36 May I appeal the Commissioner's decision?
(a) Yes, you may appeal the Commissioner's decision by writing to
the Director, Office of Hearing and Appeals (OHA), U.S. Department of
the Interior, 801 North Quincy Street, Arlington, Virginia 22203.
(b) For an appeal to be timely, OHA must receive your appeal within
30 calendar days from the date of the Commissioner's decision. Rules
that govern appeals to the OHA are found at part 4, subpart G, of this
title.
Sec. 429.37 Does interest accrue on monies owed to the United States
during my appeal process?
Interest on any nonpayment or underpayment, as provided in Sec.
429.33(b), continues to accrue during an appeal of a Regional
Director's final determination, an appeal of the Commissioner's
decision to OHA, or during judicial review of final agency action.
[FR Doc. E8-16496 Filed 7-17-08; 8:45 am]
BILLING CODE 4310-MN-P