[Federal Register Volume 73, Number 235 (Friday, December 5, 2008)]
[Rules and Regulations]
[Pages 74326-74342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28740]
[[Page 74325]]
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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; Final
Rule
Federal Register / Vol. 73, No. 235 / Friday, December 5, 2008 /
Rules and Regulations
[[Page 74326]]
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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: Final rule.
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SUMMARY: The Bureau of Reclamation (Reclamation) is adopting this final
rule on the use of Reclamation land, facilities, and waterbodies. This
final 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. This
final rule supersedes the current rule which was originally published
in 1983 and partially revised in April 2006.
DATES: This final rule is effective January 5, 2009.
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 final 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 final 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.
II. Revision of Existing Rule
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, Reclamation 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. As
a result of comments received, the proposed rule was revised.
Reclamation again published a notice of the proposed rule in the
Federal Register at 73 FR 42236 on July 18, 2008, for a 60-day public
comment period ending on September 16, 2008. During the 60-day public
comment period, informational meetings regarding the proposed rule were
held in each of Reclamation's five regions.
[[Page 74327]]
When the public comment period closed on the proposed rule,
Reclamation considered the comments and incorporated them, where
appropriate. This final rule, titled Use of Bureau of Reclamation Land,
Facilities, and Waterbodies, supersedes the 1983 version and its 2006
modifications in their entirety.
III. Summary of Changes, Comments, and Responses
This section of the preamble describes changes from the proposed
rule published on July 18, 2008, and provides responses to the comments
received on that proposed rule by section. Approximately 260
individuals submitted comments during the 60-day comment period which
ended on September 16, 2008.
Comments received that are similar in nature have been categorized
by subject and in some instances have been combined with related
comments. 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 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 proposed rule.
General Comments and Responses
Comment: In its current form the proposed rule fairly manages the
lands in Reclamation's charge and represents well the needs and desires
of the people. It balances new and existing uses with an eye to the
future.
Response: No response required.
Comment: The revised proposed rule provides for an acceptable
process for fair and open decisions, and demonstrates that the public
comment process does work and our government listens to its managing
partners and the public at large.
Response: No response required.
Comment: It is more effective to manage a weed control program
locally than from out of state.
Response: Weed control programs are managed at the local or
regional office level.
Comment: Exclusions for the special circumstances at our reservoir
should be made in the rule.
Response: We suspect that all holders of recreational and
residential use authorizations would be quick to note the unique and
special circumstances associated with their reservoir. But no reservoir
is so unique that the requirements for Reclamation to manage its land,
facilities, and waterbodies and to comply with Federal requirements,
such as the Independent Offices Appropriation Act and Office of
Management and Budget Circular A-25, could be put aside. Rather, we
have incorporated into this rule flexibility so that local Reclamation
offices can factor in special circumstances in managing use
authorizations. For example: Use fees are determined locally; minimum
time frames have been established for certain deficiencies to be
corrected, but the local Reclamation office can provide more time when
needed; minimum time frames have been established as to when
inspections must occur, but the local Reclamation office can provide
more frequent inspections if warranted; etc.
Comment: Why doesn't a land use agency such as the U.S.D.A. Forest
Service manage our large recreational area?
Response: We are continually exploring opportunities to work with
managing partners including the U.S.D.A. Forest Service, National Park
Service, Bureau of Land Management, Fish and Wildlife Service, and
State and local agencies to manage our recreation areas through formal
agreements. We have been very successful in this endeavor in that only
42 of the 289 recreation areas located on Reclamation lands and
waterbodies are directly managed by Reclamation. However, to date, we
have not been able to find a governmental entity that is willing to
take over management of the recreation at the reservoir in question.
Preamble Comments and Responses
Only those sections of the preamble to the proposed rule that
received comments are discussed in this section.
IV. Informational Meetings
Comment: The meeting date in Albuquerque, New Mexico, conflicted
with the monthly board meetings of the Carlsbad Irrigation District and
the Elephant Butte Irrigation District preventing the two major
districts in New Mexico from participating in the informational
meeting.
Response: The dates and times for the informational meetings were
established by the local office hosting the meeting and every attempt
was made to meet the needs of the concerned public and to provide
adequate advance notice of the meetings. The direct phone number for
Reclamation's contact person was included in the published rule to
allow for maximum availability to persons and groups unable to attend
public meetings scheduled in their area. We regret that such a conflict
occurred. Written comments were submitted by Elephant Butte Irrigation
District and are included in the comments section of this document.
V. Procedural Requirements
Comment: The proposed rule will have a financial affect in excess
of $100 million on irrigation districts. It alters the budgetary
obligations of all affected irrigation districts by decreasing revenue
credits. The rule raises legal and policy issues with respect to
revenue credits and it constitutes a major Federal action since it
impacts existing repayment and operation and maintenance contracts with
irrigation districts.
Response: It is Reclamation's responsibility to make this
determination based on economic analysis. We did not receive any
evidence that contradicts our analysis, which shows that the total
amount of fees and charges we annually collect for uses of Reclamation
land, facilities, and waterbodies is well under $100 million.
Additionally, revenues collected for the use of Reclamation land,
facilities, and waterbodies must be handled in accordance with all
statutory, regulatory, and policy requirements. Since such statutes,
regulations, and policies have all been in place for years, even
decades, this rule is not raising legal and policy issues.
Changes, Comments, and Responses Related to the Text of the Proposed
Rule
Subpart A--Purpose, Definitions, and Applicability
Section 429.1 This section describes the purpose of 43 CFR part
429.
We made no changes to this section as compared to the previously
proposed rule. We received no comments on this section.
Section 429.2 This section establishes the definitions for terms
that are used in part 429.
We made minor editorial changes to this section as compared to the
previously proposed rule as well as expanding the definition of private
exclusive recreational or residential use for clarification purposes.
Comment: Rewrite the definitions for application and Reclamation.
For application, allow an authorized form provided by responsible water
user organization; and for Reclamation include in the definition a
water user organization that has assumed responsibility for the
operation and maintenance of a project.
Response: Reclamation can only accept one of the two Office of
Management and Budget (OMB) approved application forms listed under
Sec. 429.10: Form 7-2540 or SF 299. All
[[Page 74328]]
forms collected by a Federal agency which collects information from 10
or more individuals or entities on an annual basis must be approved by
OMB and renewed by them on a 3-year basis. This does not preclude
managing partners and water user organizations from using their own
forms to facilitate activities for which they are responsible.
Reclamation is an agency of the Federal government and as such the
definition cannot be expanded to include a non-Federal entity.
Comment: The definition for private exclusive recreational or
residential use should be modified to remove the statement ``which
create the perception of such exclusion.'' To equate exclusive to
exclusion is irrational.
Response: We have removed the subject phrase from the definition of
private exclusive recreational or residential use.
Comment: Language should be added which makes it clear that issuing
authorizations for a particular facility to a particular applicant is
not the exclusionary conduct that the rule seeks to prohibit.
Response: We made changes under Sec. 429.4 to clarify which uses
are not considered private exclusive use.
Comment: Boat docks should be defined ``as lesser forms of private
use.'' This terminology is used by the U.S. Army Corps of Engineers in
their shoreline management guidelines.
Response: Although the U.S. Army Corps of Engineers' (COE)
definition for private exclusive use does exclude such uses as boat
docks and moorings, the definition goes on to state that those uses
will be included in their shoreline management requirements. The COE
shoreline management requirements include non-transferability of
permits for any reason including sale of associated improvements or
death of permittee and permits are issued for terms of 5 years or less.
Reclamation has decided to go in a direction that allows for more
flexibility for both the operators of Reclamation facilities and those
who hold authorizations for existing private exclusive recreational and
residential uses.
Comment: Add a definition for commercial photography to provide for
the parallel treatment of filming and photography.
Response: We did not add a definition for commercial photography to
the rule. Both commercial filming and photography are subject equally
to Reclamation's requirements and processes as stated under Sec.
429.3.
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 no changes to this section as compared to the previously
proposed rule.
Comment: Traditional public uses of Reclamation land may be subject
to the proposed new rule instead of 43 CFR part 423. The terms of Sec.
429.3(c) and (f) would remove the ambiguity and potential conflict with
the proposed new Sec. 429.4(a) which exempts individual, non-
commercial uses.
Response: In fact, many activities on Reclamation land, facilities,
and waterbodies may be subject to both part 423 and part 429 of this
chapter. The distinction between these two parts is that part 429
specifies for which activities use authorizations must be obtained and
part 423 specifies what conduct by the public is or is not acceptable
on Reclamation land, facilities, and waterbodies. Even though an
activity may be authorized under part 429 of this chapter, use
authorizations do not condone all possible conduct by the public.
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 changes to this section as compared to the previously
proposed rule for clarification purposes including the addition of a
new paragraph (b) which provides examples of the types of buildings and
structures used by concessionaires or managing partners that are not
subject to this part.
Comment: Is written permission needed to boat or swim on
Reclamation waterbodies?
Response: No. These activities are listed under Sec. 429.4 as not
being subject to the requirement and processes established under this
part. They are, however, subject to part 423 of this chapter which
relates to public conduct on Reclamation land, facilities, and
waterbodies.
Section 429.5 This section addresses who is authorized under part
429 to issue use authorizations.
We made changed this section as compared to the previously proposed
rule to add that a copy of all use authorizations issued by managing
partners be provided to the local Reclamation office.
Comment: Reclamation is commended for amending the 2007 proposed
rule. The changes allow for the efficient and effective relationship
between Reclamation and water user organizations that have assumed
contractual responsibility for the operation and maintenance of
Reclamation projects. Reclamation's efforts in balancing its ultimate
responsibility for Federal land, with the practical realities of
operating and managing Reclamation project are appreciated.
Response: No response required.
Comment: Do not make any changes to grazing leases or re-route the
revenues collected for such leases issued by water user organizations.
Response: Under this section, 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. 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: Requiring authorization from a water user organization
constitutes an improper delegation of federal authority per 43 U.S.C.
387 which provides the Secretary with the authority to grant leases,
license, easements, and rights-of-way. It may be proper for the
Secretary to delegate this authority to Reclamation, but not to a water
user organization.
Response: Only water user organization's who are authorized under
their contract for operation and maintenance of Reclamation land,
facilities, and waterbodies may issue limited use authorizations to
third parties. Additionally, only Reclamation or another Federal agency
may issue authorizations that convey an interest in Reclamation land,
facilities, or waterbodies.
Section 429.6 This section details when water user organizations
must approve Reclamation's use authorizations.
We changed this section as compared to the previously proposed
rule. Section 10 of the Reclamation Project Act of 1939 as amended is
the statutory authority for use authorizations under paragraph (a). Due
to comments received, we requested a legal review within the Department
of the Interior of this provision and this paragraph has now been
revised to track with section 10.
Section 10 of the Reclamation Project Act of 1939 as amended is the
statutory authority for use authorizations under paragraph (a). This
paragraph has now been revised to track with Section 10.
We have added paragraph (c) which addresses the Regional Directors'
discretionary authority to seek concurrence for all use authorizations
not addressed in paragraph (a). This was
[[Page 74329]]
formerly addressed in paragraph (b) and limited to use authorizations
of less than 25 years.
Comment: Delete the requirement that Reclamation obtain the
approval of water user organizations for easements and rights-of-way
for periods in excess of 25 years, and indicate that such a requirement
is at the discretion of the regional director.
Response: Section 10 of the Reclamation Project Act of 1939
specifies that Reclamation will grant easements and rights-of-way for
periods in excess of 25 years only with the written approval of any
water user organization under contract obligation for repayment to
Reclamation.
Comment: Rewrite this section to state that all use authorizations
for easements and rights-of-way within a project or division are
subject to the approval of any water user organization under contract
obligation for repayment, and for those water user organizations who
have assumed responsibility for operation and maintenance of that
project or division. This requirement would not apply to any other type
of authorization.
Response: Section 10 of the Reclamation Project Act of 1939
specifies that Reclamation will grant easements and rights-of-way for
periods in excess of 25 years only with the written approval of any
water user organization under contract obligation for repayment to
Reclamation. We do, however, provide in the rule that at a minimum all
affected water user organizations be notified prior to the issuance of
any use authorization. Additionally, at the discretion of the Regional
Director, the affected water user organization may be asked to formally
concur with the issuance of the proposed use authorization.
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 made no changes to this section as compared to the previously
proposed rule. We received no comments on this section.
Section 429.8 This section discusses whether fees are required for
the use of Reclamation easements.
We made no 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.
Comment: Revise this section to include discussion of a proposed
use with the water user organization as described in Sec. 429.5.
Response: In contacting Reclamation, a potential applicant will be
referred to the appropriate water user organization if that
organization has the contractual authority to issue use authorizations
for the intended use. This issue will be more directly addressed in
revisions to applicable Reclamation Manual Directives and Standards and
handbooks rather than in this rule. Additionally, when Reclamation is
responsible for issuing the use authorization, local Reclamation
offices will continue to coordinate with water user organizations when
applicable to determine whether a proposed use is compatible with the
needs and purposes of the project.
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.
Comment: Revise this section to add a water user organization's
form authorized by Reclamation.
Response: Reclamation can only accept one of the two OMB approved
application forms listed under Sec. 429.10: Form 7-2540 or SF 299. All
forms used by a Federal agency which collect information from 10 or
more individuals or entities on an annual basis must be approved by OMB
and renewed by them on a 3-year basis.
Section 429.11 Where the use authorization application forms can be
found is provided in this section.
We made no changes to this section as compared to the previously
proposed rule.
Comment: Revise this section to include wording that contact
information for the appropriate water user organization can be obtained
from any Reclamation office.
Response: The local Reclamation office will provide water user
organization contact information when appropriate. This will be
addressed more directly in revisions to applicable Reclamation Manual
Directives and Standards and handbooks.
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.
Comment: Revise this section to read: ``File your application * * *
with the Reclamation office or water user organization having
jurisdiction over the land.* * *''
Response: Although some water user organizations may have assumed
responsibility for the operation and maintenance of Reclamation land,
facilities, and waterbodies pursuant to a contract with Reclamation,
Reclamation still maintains jurisdiction over the subject land,
facilities, and waterbodies. The location for filing an application
should be coordinated between the local Reclamation office and water
user organization.
Section 429.13 This section tells how long the application review
process will take.
We made no changes to this section as compared to the previously
proposed rule. We received no comments on this section.
Section 429.14 The criteria Reclamation will consider when
reviewing applications is described in this section.
We made no changes to this section as compared to the previously
proposed rule.
Comment: This section does not include the best interests of the
affected project beneficiaries, nor does it address the impacts of not
receiving revenue credits which would create further financial burdens
on the water user organizations.
Response: This rule complies with OMB Circular A-25 which directs
the recovery of revenues for administrative costs incurred by
Reclamation in the processing of use applications and for the use of
Federal lands. Although the responsibility for operation and
maintenance of Reclamation land, facilities, and waterbodies may be
contractually transferred in some instances to a water user
organization, they are owned by the United States. All revenues
collected for the use of Reclamation land, facilities, and waterbodies
must be handled in accordance with applicable Federal statutes,
regulations, and policies.
Section 429.15 This section discusses whether Reclamation is
required to issue use authorizations.
We made no changes to this section as compared to the previously
proposed rule. We received no comments on this section.
[[Page 74330]]
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 no 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
proposed rule. We received no comments on this section.
Section 429.18 This section explains when administrative costs will
be due and payable.
We made no changes to this section as compared to the previously
proposed rule.
Comment: Administrative costs should include a reasonable charge
for project related land, facilities, and waterbodies for the benefit
of the project beneficiaries.
Response: OMB Circular A-25 provides our authority to collect
administrative costs that are incurred by us in processing a use
application for an authorization to use Reclamation land, facilities,
or waterbodies. We do not have authority to collect administrative
costs for any other entity.
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
proposed rule. We received no comments on this section.
Section 429.21 This section describes what occurs if the
administrative costs are overpaid.
We made no 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 no changes to this section as compared to the previously
proposed rule. We received no comments on this section.
Subpart E--Use Fees
Comment: This subpart fails to include the best interests of the
affected project beneficiaries by not charging a reasonable fee for the
project beneficiaries and not providing those reasonable fees as
revenue credits to the benefit of the affected project.
Response: This rule complies with OMB Circular A-25 which directs
the recovery of revenues for the use of Federal lands. Although the
responsibility for operation and maintenance of Reclamation land,
facilities, and waterbodies may be contractually transferred in some
instances to a water user organization, they are owned by the United
States. All revenues collected for the use of Reclamation land,
facilities, and waterbodies must be handled in accordance with
applicable Federal statutes, regulations, and policies.
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: Increased fees have adverse impacts on cabin owners
forcing them from their cabins.
Response: This rule does not set fees for cabins or any other use
of Reclamation land, facilities, or waterbodies. Use fees are
established on a case-by-case basis as determined by a valuation
process or competitive bidding.
Comment: This section must be defined more clearly as well as
accurately.
Response: The Reclamation Manual Directive and Standard, Real
Property Appraisal, LND 05-01, which may be found at http://www.usbr.gov/ outlines in depth the valuation process for determining
use fees. The alternative method that may be used under this section
for determining use fees is the competitive bidding process.
Section 429.24 This section explains when use fees should be paid.
We made no 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.
We made no changes to this section as compared to the previously
proposed 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 minor editorial changes to this section.
Comment: This section does not take into consideration the affect
that waiving fees would have on water user organizations. The
requirement to collect fair market value should be retained.
Response: Section 6 of OMB Circular A-25 allows for a reduced fee
or waiver under certain circumstances and we have simply incorporated
this concept into this rule. As listed under Sec. 429.23, we are
required to collect a use fee based on a valuation or competitive
bidding process unless the use fees have been waived by the applicable
regional director. All revenues collected for the use of Reclamation
land, facilities, and waterbodies must be handled in accordance with
applicable Federal statutes, regulations, and policies.
Comment: Costs and fees associated with obtaining Reclamation's
approval for an easement, right-of-way, or other authorized use should
be automatically waived for applicants that are public entities.
Response: Public entities and others who believe they may be
eligible for a waiver of some or all fees associated with the use of
Reclamation land, facilities, or waterbodies may request such a waiver
from the applicable Regional Director.
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 changes to this section as compared to the previously
proposed rule. Under Sec. 429.28(a)(3) we clarified when Reclamation
may terminate a use authorization. These now include, but are not
limited to, events such as a natural disaster or threats to public
health and safety. We also modified Sec. 429.28(a)(4) by deleting the
condition that lack of use in a 2-year timeframe may result in the
termination of a use authorization. We added the condition that failure
to construct during the timeframe specified in the use authorization
may constitute a presumption of abandonment and cause for termination.
[[Page 74331]]
Comment: The proposed rule allows existing docks to stay for now.
However, it also gives Reclamation unilateral authority to terminate
dock permits at any future point without public comment.
Response: We have revised Sec. 429.28 to clarify under what
conditions an authorization could be terminated without public comment.
Additionally, Sec. 429.32(a) has been revised to more clearly explain
the public process that would be required prior to Reclamation making a
determination that authorizations for existing private exclusive
recreational and residential use would be terminated.
Comment: Under the proposed rule, individuals holding valid permits
who do not construct or use their boat docks for a period of two years
can lose their permits forever through a presumption of abandonment.
Response: We have revised Sec. 429.28(a)(4) by removing the 2-year
timeframe and adding the condition that construction must occur within
the timeframe specified in the use authorization or the use
authorization may be terminated.
Comment: It appears that this document may be in violation of First
Amendment rights by denying the right to appeal.
Response: All final determinations made by Reclamation may be
appealed using the process outlined in subpart I of this rule.
Section 429.29 This section describes additional terms and
conditions or requirements that will be included in a use
authorization.
We made no changes to this section as compared to the previously
proposed rule. We received no comments on this section.
Section 429.30 This section explains whether a use authorization
can be transferred or assigned to another individual or entity.
We made changes to this section as compared to the previously
proposed rule to incorporate revisions made regarding the transfer of
authorizations for existing private exclusive recreational or
residential uses as described under Sec. 429.32(e).
Comment: The proposed rule does not recognize homeowners' rights to
transfer their dock permits should they sell their lakeside homes or
pass them on to their heirs. Transfer authority is solely at the
discretion of the local Reclamation office. This right should be
recognized in the rule. Reclamation authority over transfers should be
limited to record keeping and permit compliance.
Response: The conditions for transfer of use authorizations for
existing private exclusive recreational or residential uses are now
under 429.32(e). Notification of transfers must be provided to
Reclamation in advance of the transfer. Holders of use authorizations
should keep in mind, however, that 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.
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 changes to this section as compared to the previously
proposed rule.
Section 429.31(b) now reflects that improvements made within the
terms and conditions of an existing use authorization will not be
considered a new private exclusive recreational or residential use.
These improvements may include those necessary to maintain or repair
the authorized use. Expansions of the authorized use within the terms
and conditions of the existing authorization may also be allowed. Any
such expansions should, however, be reviewed by the local Reclamation
office prior to initiating the activity to ensure that the planned
change is truly within the terms of the use authorization.
Additionally, Sec. 429.31(b)(1) has been moved and incorporated
into the definition of private exclusive recreational and residential
use under Sec. 429.2 and Sec. 429.31(b)(2) has been moved to Sec.
429.4(b)
Comment: Reword Sec. 429.31(b) to state that uses outside an
already existing permitted area would be prohibited. This would allow
improvements, expansions, or repairs within the existing footprint of
an existing authorized use.
Response: We have revised Sec. 429.31(b) to incorporate the intent
of this comment. Improvements, expansions, or repairs of the authorized
use within the terms and conditions of the existing authorization may
also be allowed. Any such improvements, expansions, or repairs should,
however, be reviewed by the local Reclamation office prior to
initiating the activity to ensure that the planned change is truly
within the terms of the use authorization.
Comment: Prohibitions against new docks on lakes with limited
public facilities are inconsistent with both Congressional mandates and
agency principles. Requiring property owners to use limited public boat
dock moorings reduces recreational opportunities for the public.
Response: Under this rule, new public docks are not prohibited.
When as a result of an appropriate public planning process a need for
additional public facilities is shown, we will explore opportunities to
construct needed facilities under existing project authorities or seek
managing partners willing to construct and maintain such facilities.
Comment: New landscaping is prohibited under the proposed rule
while existing authorizations are grandfathered. Since use
authorizations for landscaping have not as yet been issued by the local
office, these uses would now be prohibited and subject to civil and
criminal penalties. Homeowners' efforts to improve the shoreline in
accordance with the resource management plan should be encouraged.
Response: New landscaping that falls within the parameters of an
existing authorization for private exclusive recreational or
residential use will not be considered new private exclusive
recreational or residential use as stated under Sec. 429.31(b).
Applications submitted for a use authorization for landscaping will be
reviewed and evaluated on a case-by-case basis by the local or regional
Reclamation office.
Section 429.32 How Reclamation will address existing uses which are
otherwise prohibited is discussed in this section.
The majority of comments received relate to this section of the
proposed rule. Most of the commenters hold existing use authorizations
for cabin sites or other recreational or residential uses, including
boat docks, on Reclamation land, facilities, or waterbodies.
In response to comments received and to improve the clarity of this
section, we have made several changes to this section as follow:
Paragraph (a) of this section more thoroughly describes the public
process we will use when determining whether existing private exclusive
recreational or residential uses remain compatible with public needs or
project purposes. The minimum timeframe for such reviews has been
increased from 5 years to 20 years, except for those instances where
part 21 of this title requires reviews at least every 5 years. In
addition, clarification was incorporated on how holders of existing use
authorizations would be notified of opportunities for public
participation.
Paragraphs (b), (c), and (d) of this section now address how and
when
[[Page 74332]]
reviews of compliance with environmental, health and safety, and
financial requirements will be conducted and how those results will be
provided to the holder of the use authorization.
Paragraph (e) of this section was added to address the conditions
for transferring existing authorizations for private exclusive
recreational and residential uses.
Minor editorial changes were made to paragraph (f) (previously
paragraph (e)) of this section.
No changes other than re-lettering were made to paragraphs (g), (h)
and (j) (previously paragraphs (f), (g) and (i)) of this section.
A clarification was made to paragraph (i) (previously paragraph
(h)) of this section concerning what use authorizations could not be
renewed, transferred, etc.
Comment: The proposed rule provides no rationale for reversing the
regulations previously proposed. Reclamation is not authorized to
provide for private exclusive use. The proposed rule would violate
Reclamation's Congressional mandate to provide for public recreation.
We strongly object to the change in the proposed rule to allow private
exclusive use to continue. Please do not privatize our public lands.
Response: Under this rule existing private exclusive recreational
and residential uses will be discontinued when, through a public
process, a determination is made that the needs of the public or of
Reclamation projects are not being adequately met. We will continue to
take into consideration the needs of the public in the management of
these lands, facilities, and waterbodies.
Comment: The U.S.D.A. Forest Service regulations contain better
protections for cabin owners and recognition of appropriate time
periods which are omitted in this section.
Response: The U.S.D.A. Forest Service and Reclamation are governed
by different Federal statutes, regulations, and policies that determine
how both agencies manage cabin sites on Federal lands for which they
have management responsibilities.
Comment: The term for compliance reviews should be expanded from 5
years to 20 years and reviews should be done on a lake-wide basis since
individual dock compliance will occur at permit renewal.
Response: This section has been revised to reflect that we will
conduct reviews for determinations as to compatibility with public
needs and project purposes at least once every 20 years unless required
otherwise by part 21 of this title. Compliance reviews for the criteria
found under Sec. 429.32(b) will be conducted once every 5 years since
it is not appropriate to review, for example, an area any less
frequently to determine if there are health and safety concerns.
Comment: The 90-day notification period to authorization holders
for correction of identified deficiencies is not adequate in areas
where weather limitations could impact their ability to bring their use
into compliance with the requirements.
Response: Section 429.32(c) allows a minimum of 90 days to be
provided to make corrections. Local managers will work with
authorization holders to establish reasonable timeframes for curing
deficiencies. Additionally, the compliance review reports will be
provided to the holder of the use authorization by certified mail,
return receipt requested.
Comment: Reclamation has no requirement to inform permit holders of
expiring permits which could result in permanent loss of docks for
unaware homeowners who miss renewal deadlines. Permit holders should be
notified at least 90 days prior to permit expiration dates. Reclamation
offices issuing permits should be given discretionary authority to
reinstate lapsed permits where lack of notice or other extenuating
circumstances can be shown.
Response: Section 429.32(d) has been revised to include written
notification to the holder of an authorization for existing private
exclusive recreational or residential use with the results of the
compliance review that will be completed at least 6 months prior to the
expiration date of the authorization. The notification will be sent at
least 90 days prior to the expiration of the authorization and will
include a reminder that it is time to renew the use authorization.
Comment: All dock permits should be for a term of 20 years.
Response: Under Sec. 429.32(f) renewals of authorizations for all
private exclusive recreational or residential will not exceed 20 year
terms. The determination as to the appropriate length of the term which
may be up to 20 years will be made on a case-by-case basis by the
issuing Reclamation office.
Comment: Our 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
final rule continue to be met.
Section 429.33 This section describes the consequences for using
Reclamation land, facilities, and waterbodies without authorization.
We made changes to this section compared to the previously proposed
rule. Paragraph (a) of this section was rewritten and is now a new
paragraph (g) which discusses when legal action under part 423 of this
chapter may apply.
Comment: Potential penalties under this proposed rule give
Reclamation officials the right to hand out jail terms to people
failing to remove docks for which permits have lapsed or been denied.
Response: Reclamation officials cannot unilaterally impose jail
terms for violations. Penalties for unauthorized use of Reclamation
land, facilities, or waterbodies are established under part 423 of this
chapter not under this rule. We have added a new paragraph (g) to this
section to clarify that a violation may be subject to legal action
including criminal prosecution under part 423 of this chapter.
Comment: Fines levied can be retroactively assessed to the date of
infraction. Interest on penalties should accrue from the date an
individual is notified in writing of any violation.
Response: We reviewed this issue and determined it is appropriate
to charge use fees as well as any penalties and interest from the date
that the unauthorized use commenced. Those that use Reclamation land,
facilities, or waterbodies without authorization should not be treated
the same as those who have complied with the requirements. The
application of interest from the date the unauthorized use commenced
incorporates this concept.
Subpart I--Decisions and Appeals
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 changes to this section as compared to the previously
proposed rule to clarify that the appeal process applies to final
determinations and to specify that you can appeal a Regional Director's
final determination to the Commissioner within 30 days of the
[[Page 74333]]
postmark date of a Regional Director's letter of final determination.
Comment: The 30-day appeal period should commence on the date of
receipt of decision.
Response: We changed this section to state that you can appeal a
Regional Director's final determination to the Commissioner within 30
days of the postmark date of a Regional Director's letter of final
determination.
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 added paragraph (c) to this section to clarify that the
Commissioner's decision will take effect upon issuance and remain in
effect unless a stay is specifically requested and granted by the
Director, Office of Hearing and Appeals.
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 a change to this section as compared to the previously
proposed rule to clarify that interest does not accrue when a stay has
been issued at any point in the appeal process.
We received no comments on this section.
VI. 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).
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.
----------------------------------------------------------------------------------------------------------------
VII. 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 in
compliance 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.
[[Page 74334]]
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 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
[[Page 74335]]
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.
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: November 17, 2008.
Kris D. Polly,
Acting Assistant Secretary--Water and Science.
0
For the reasons stated in the preamble, the Bureau of Reclamation
revises 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?
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 and 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
part 21; Public 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.
[[Page 74336]]
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 into pursuant to the Federal Water Project
Recreation Act, as amended.
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 that are not
associated with the official management of a Reclamation project. This
includes, but is not limited to the following:
(1) Cabin sites and associated improvements (including those
currently defined in part 21 of this title); mobile homes, residences,
outbuildings, and related structures; and associated landscaping,
patios, decks, and porches;
(2) Boat houses, docks, moorings, piers, and launch ramps;
(3) Floating structures or buildings, including moored vessels used
as residences or unauthorized business sites;
(4) 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
(5) Access routes to private land, facilities, or structures when
other reasonable alternative means of access is available or can be
obtained.
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,
the following:
(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 representatives of the
Commissioner, or their delegates, who are responsible for managing
their respective region's land, facilities, and
[[Page 74337]]
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 Reclamation.
You, your, I, me, or my, 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 the following:
(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) 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. Examples
include, but are not limited to the following:
(1) Boat docks available for short-term use by the public;
(2) Marina slips available for rent by the public;
(3) Publicly available boat ramps;
(4) Houseboats available for short-term rent by the public;
(5) Stores and restaurants;
(6) Employee housing; and
(7) Rental cabins, hotels, campgrounds, and other short-term
lodging facilities.
(c) 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 of this part:
(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;
(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, and provide a copy of the use authorization
to the local Reclamation office, 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;
(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
[[Page 74338]]
from water user organizations under contract obligation for repayment
of the project or division. This requirement does not apply to any
other type of use authorizations.
(b) 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.
(c) At the discretion of the responsible Regional Director,
concurrence of the appropriate water user organizations not addressed
in paragraph (a) of this section may be requested.
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 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.
[[Page 74339]]
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.
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 and approved and documented by the
applicable Regional Director, the application fees may be waived, and
charges for administrative costs or use fees may be waived or reduced
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.
[[Page 74340]]
(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 termination of the use authorization 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, terminate any use authorization in the event of a
natural disaster, a national emergency, a need arising from security
requirements, or an immediate and overriding threat to public health
and safety.
(4) Reclamation may, at any time and at no cost or liability to the
United States, terminate any use authorization for activities other
than existing authorized private exclusive recreational or residential
use as defined under Sec. 429.2 if Reclamation determines that any of
the following apply:
(i) The use has become incompatible with authorized project
purposes, project operations, safety, and security;
(ii) A higher public use is identified through a public process
described at Sec. 429.32(a)(1); or
(iii) Termination is necessary for operational needs of the
project.
(5) Reclamation may, at any time and at no cost or liability to the
United States, 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 within the
timeframe specified in the terms of the use authorization may
constitute a presumption of abandonment of the requested use and cause
termination of the use authorization.
(6) Reclamation may, at any time and at no cost or liability to the
United States, 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 or as provided under subpart H
of this part for existing private exclusive recreational and
residential uses. Should you wish to transfer or assign your use
authorization to another individual or entity, you 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 as of the effective date of this part.
Improvements that are within the terms and conditions of an existing
authorization will not be considered new private exclusive recreational
or residential use.
Sec. 429.32 How will Reclamation address currently authorized
existing private exclusive recreational or residential uses?
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.
(a) Existing private exclusive recreational or residential uses
must be compatible with public needs and with authorized project
purposes, project operations, safety, and security. A review of whether
existing private exclusive recreational or residential uses is
compatible with public needs and authorized project purposes, project
operations, safety, and security will be made at least once every 20
years, except where part 21 requires a more frequent review.
(1) Reclamation will only make final determinations regarding the
compatibility of existing private exclusive recreational or residential
uses with public needs or project purposes 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.
(2) Reclamation will notify in writing all potentially affected
holders of existing authorizations for private exclusive recreational
or residential use regarding the opportunities for public participation
when any action is proposed that could lead to an incompatibility
determination.
(3) Determinations that existing private exclusive recreational or
residential uses are not compatible with public needs will be published
in the Federal Register.
[[Page 74341]]
(4) 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.
(b) Reclamation will conduct a compliance review of all existing
private exclusive recreational or residential uses at least once every
5 years to determine if the following criteria are being met:
(1) Environmental requirements;
(2) Public health and safety requirements; and
(3) Current in financial obligations to Reclamation.
(c) Reclamation will provide the holder of the use authorization
with a written report of the results of the compliance review by
certified mail, return receipt requested. The report will state whether
the existing use meets the required criteria listed in paragraph (b) of
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.
(d) In addition to the compliance reviews described above,
Reclamation will initiate a review of the existing private exclusive
recreational or residential uses for compliance with the required
criteria listed in paragraph (b) of this section 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 by
certified mail, return receipt requested. 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. In addition, this report will serve as a
reminder that it is time to seek renewal of the use authorization and
provide information on the process that needs to be followed.
(e) Reclamation must be notified in advance by certified mail,
return receipt requested, of any transfers of use authorizations for
existing private exclusive recreational or residential uses.
(f) 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
paragraphs (a) and (b) of this section and these reviews could
potentially result in the termination of the use agreement prior to the
end of the term of years.
(g) 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.
(h) 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. If
the Regional Director determines that deficiencies identified under
paragraph (d) of this section cannot be corrected prior to the
expiration date of the use authorization, the use authorization may be
extended for a period not to exceed 6 months.
(i) Requests for the renewal, extension, or reissuance of use
authorizations for private exclusive recreational or residential uses
that expired and were not renewed prior to the effective date of this
part and were not renewed 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, 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. Requests for renewal,
extension, or reissuance of use authorizations for private exclusive
recreational or residential uses must be made by submitting Form 7-2540
as stated under Sec. 429.10(b) and in compliance with subpart D of
this part.
(j) 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) 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 (a)(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.
(b) 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.
(c) If appropriate, you will receive a final determination letter
detailing the applicable costs and fees, as set forth under paragraph
(a) 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.
(d) 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.
(e) 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
[[Page 74342]]
(2) Interest accrued on the use fee from the date your unauthorized
use began as specified in paragraph (f)(1) of this section.
(f) 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.
(g) Under part 423 of this chapter, unauthorized use of Reclamation
land, facilities, or waterbodies is a trespass against the United
States. You may be subject to legal action including criminal
prosecution as specified under Sec. 423.71.
Subpart I--Decisions and Appeals
Sec. 429.34 Who is the decisionmaker for Reclamation's final
determinations?
(a) The appropriate Regional Director, or the Regional Director's
designee, makes any final determination associated with an action 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 final determination letter.
Sec. 429.35 May I appeal Reclamation's final determination?
(a) Yes, if you are directly affected by a final determination, you
may appeal by writing to the Commissioner within 30 calendar days after
the postmark 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 final 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 mailing of the Commissioner's
decision. Rules that govern appeals to OHA are found at part 4,
subparts B and G, of this title.
(c) Notwithstanding the provisions of Sec. 4.21(a) of this title,
the Commissioner's decision will take effect upon issuance and remain
in effect unless you specifically request a stay and a stay is granted
under Sec. 4.21(b) of this title.
Sec. 429.37 Does interest accrue on monies owed to the United States
during my appeal process?
Except for any period in the appeal process during which a stay is
then in effect, interest on any nonpayment or underpayment, as provided
in Sec. 429.33(a), 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. E8-28740 Filed 12-4-08; 8:45 am]
BILLING CODE 4310-MN-P