Use of Bureau of Reclamation Land, Facilities, and Waterbodies, 42236-42252 [E8-16496]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Reclamation

[Federal Register Volume 73, Number 139 (Friday, July 18, 2008)]
[Proposed Rules]
[Pages 42236-42252]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-16496]



[[Page 42235]]

-----------------------------------------------------------------------

Part III





Department of the Interior





-----------------------------------------------------------------------



Bureau of Reclamation



-----------------------------------------------------------------------



43 CFR Part 429



Use of Bureau of Reclamation Land, Facilities, and Waterbodies; 
Proposed Rule

Federal Register / Vol. 73, No. 139 / Friday, July 18, 2008 / 
Proposed Rules

[[Page 42236]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Bureau of Reclamation

43 CFR Part 429

RIN 1006-AA51


Use of Bureau of Reclamation Land, Facilities, and Waterbodies

AGENCY: Bureau of Reclamation, Interior.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Reclamation (Reclamation) proposes a rule on the 
use of Reclamation land, facilities, and waterbodies. The proposed rule 
addresses among other topics the cost recovery of fees for authorized 
uses involving the possession or occupancy of any portion of, and the 
extraction or disturbance of any natural resource from Reclamation 
land, facilities, and waterbodies; how to apply for a use authorization 
including what application forms to use; and what uses are prohibited 
and associated consequences. When finalized, the proposed rule will 
supersede the current rule which was originally published in 1983 and 
partially revised in April 2006.

DATES: Submit comments by September 16, 2008.
    The dates of the informational meetings to be held regarding this 
proposed rule are listed in the SUPPLEMENTARY INFORMATION section of 
this proposed rule.

ADDRESSES: You may submit comments, identified by the number 1006-AA51, 
by one of the following methods:

--Use the Federal rulemaking Web site: https://www.regulations.gov and 
follow the instructions for submitting comments. Please use the docket 
identification number BOR-2008-0004 which has been assigned to this 
rule when submitting your comments to the rulemaking Web site.
--By mail to: Bureau of Reclamation, Denver Federal Center, P.O. Box 
25007, Denver, CO 80225-0007, Attention: Richard Rizzi, Mail Code: 84-
53000.

    The locations of the informational meetings to be held regarding 
this proposed rule are listed in the SUPPLEMENTARY INFORMATION section 
of this proposed rule.

FOR FURTHER INFORMATION CONTACT: Richard Rizzi, Mail Code: 84-53000; 
Bureau of Reclamation; P.O. Box 25007; Denver, CO 80225. Telephone: 
(303) 445-2900.

SUPPLEMENTARY INFORMATION: 

I. Background

    The current rule, 43 CFR part 429, titled Procedure to Process and 
Recover the Value of Rights-of-Use and Administrative Costs Incurred In 
Permitting Such Use (current rule), established the procedures to 
recover administrative costs associated with processing ``right-of-
use'' applications and the value of rights-of-use granted by 
Reclamation to applicants for the use of Reclamation land. Sections of 
the current rule were modified, in part, in 2006 to correlate with 43 
CFR part 423, titled Public Conduct on Bureau of Reclamation 
Facilities, Lands, and Waterbodies.
    This proposed rule addresses activities involving the possession or 
occupancy of any portion of, and the extraction or disturbance of any 
natural resources from, Reclamation land, facilities, and waterbodies. 
Regulations addressing public access to Reclamation property and 
occasional public activities such as hiking, camping, boating, and 
hunting, and closures are contained in 43 CFR part 423.
    The demand for use of Reclamation land, facilities, and waterbodies 
for many different kinds of activities has increased dramatically since 
Reclamation began building Federal water supply, flood control, and 
hydropower projects over 100 years ago. With increased and varied uses 
has come confusion among the potential users of Reclamation land, 
facilities, and waterbodies about the process of applying for the 
various types of uses, the charges and fees associated with such uses, 
and other concerns. The current rule does not adequately address this 
confusion nor does it address prohibited and unauthorized uses of 
Reclamation's land, facilities, and waterbodies and associated 
penalties.
    The Independent Offices Appropriation Act (IOAA) (31 U.S.C. 9701), 
September 13, 1982, as amended, sets forth Congress' intent that any 
use, permit, or similar thing of value provided by an agency is to be 
self-sustaining and that the IOAA authorizes agencies to prescribe 
rules establishing charges for such uses. The 1993 revision of the 
Office of Management and Budget (OMB) Circular A-25 established Federal 
policy directing that administrative costs be recovered for Government 
services and fees for the use or sale of Government goods or resources 
also be charged. OMB Circular A-25 provides information on the scope 
and types of activities subject to use fees and the basis on which 
these fees are established. It also provides guidance for agencies in 
implementing such fees and charges. The use of Reclamation land, 
facilities, or waterbodies is a use of Government resources, and as 
such, the IOAA and OMB Circular A-25 direct Reclamation to recover the 
costs and fees associated with the use of these resources.
    Section 10 (43 U.S.C. 373) of the Reclamation Act of June 17, 1902, 
provides the Secretary of the Interior (Secretary) with the authority 
to issue rules as necessary for the purposes of carrying out the 
provisions of the Act. Section 10 (43 U.S.C. 387) of the Reclamation 
Project Act of 1939 provides the Secretary the authority, in his 
discretion, to grant leases, licenses, easements, and rights-of-way. 
These two Acts provide Reclamation with the general statutory authority 
to issue rules on authorizing or prohibiting uses of Reclamation land, 
facilities, and waterbodies.
    This proposed rule addresses:
    (a) The possession or occupancy of any portion of, or the 
extraction or disturbance of any natural resource from, Reclamation 
land, facilities, and waterbodies;
    (b) The procedures to follow when the proposed use involves a 
Reclamation easement;
    (c) The procedures to apply for use of Reclamation land, 
facilities, and waterbodies that involves the possession or occupancy 
of any portion of, or the extraction or disturbance of any natural 
resource from, Reclamation land, facilities, or waterbodies;
    (d) The criteria Reclamation will use to evaluate applications;
    (e) Our statutory authority and the basis for charging application 
fees, recovering administrative costs, and collecting use fees 
associated with authorized uses;
    (f) Conditions under which application fees, administrative costs, 
or use fees may be waived or reduced if determined appropriate by 
Reclamation or as currently listed in OMB Circular A-25;
    (g) The required terms and conditions associated with use 
authorizations;
    (h) Prohibited uses of Reclamation land, facilities, and 
waterbodies and how Reclamation will resolve unauthorized uses;
    (i) The criteria Reclamation will use to evaluate existing 
authorizations for otherwise prohibited uses of Reclamation land, 
facilities, and waterbodies; and
    (j) The decisions and appeals process applicable to actions taken 
under this part.

[[Page 42237]]

II. Revision of Existing Rules

    On December 20, 1983, Reclamation published 43 CFR part 429 titled 
Procedure to Process and Recover the Value of Rights-of-Use and 
Administrative Costs Incurred in Permitting Such Use in the Federal 
Register at 48 FR 56223. Sections of this rule were revised on April 
17, 2006, in the Federal Register at 71 FR 19802 to better correlate 
with 43 CFR part 423. The sections that were revised or added were 
Sec.  429.1 Purpose, Sec.  429.2 Definitions, Sec.  429.3 Establishment 
of the value of rights-of-use, Sec.  429.6 Applications for rights-of-
use, Sec.  429.12 Applicability, and Sec.  429.13 General Restrictions.
    On July 18, 2007, we published a notice in the Federal Register at 
72 FR 39530 announcing the availability of the proposed rule for a 90-
day public comment period ending on October 16, 2007. We requested that 
comments be submitted by the public using one of the following methods: 
posting on the Federal rulemaking web site, through emailing, or 
mailing to the listed address. As a result of comments received, the 
proposed rule has been revised and is being provided to the public for 
further comment through this publication in the Federal Register.
    When the public comment period closes on this proposed rule, we 
will consider comments and incorporate them, where appropriate. The 
final rule will then be published in the Federal Register. That final 
rule, titled Use of Bureau of Reclamation Land, Facilities, and 
Waterbodies, will supersede the 1983 version and its 2006 modifications 
in their entirety.

III. Informational Meetings

    Informational meetings regarding the proposed rule will be held in 
each of our five regions in the 17 western states. These meetings will 
be informational in nature only. Public comments offered at the 
meetings will not be recorded or accepted into the official record. You 
must submit your comments as instructed in the ADDRESSES section of 
this proposed rule. The dates, times, and locations of these meetings 
listed by Reclamation region follow:

Pacific Northwest Region

    Moses Lake, Washington--Wednesday, July 30, 2008, 4 p.m., Big Bend 
Community College, 7662 Chanute Street NE.
    Boise, Idaho--Wednesday, August 20, 2008, 4 p.m., Boise Public 
Library, 715 South Capitol Boulevard.
    For further information regarding the meetings, please contact 
Diana Cross at telephone number 208-378-5020.

Mid-Pacific Region

    Sacramento, California--Monday, August 18, 2008, 6 p.m., Federal 
Office Building, 2800 Cottage Way.
    For further information regarding the meeting, please contact Peter 
Lucero at telephone number (916) 978-5101.

Lower Colorado Region

    Boulder City, Nevada--Tuesday, August 5, 2008, 2 p.m., Lower 
Colorado Regional Office, Mead Building.
    Phoenix, Arizona--Wednesday, August 6, 2008, 2 p.m., Phoenix Area 
Office, 6150 West Thunderbird Road.
    Yuma, Arizona--Thursday, August 7, 2008, 9 a.m., Quartermaster 
State Historic Park, 201 N. 4th Avenue.
    For further information regarding the meetings, please contact 
Robert Walsh at telephone number (702) 293-8421.

Upper Colorado Region

    Grand Junction, Colorado--Wednesday, July 30, 1 p.m., Western 
Colorado Area Office, 2764 Compass Drive.
    Albuquerque, New Mexico--Tuesday, August 12, 2008, 1 p.m., 
Albuquerque Area Office, 555 Broadway NE.
    Salt Lake City, Utah--Monday, August 14, 2008, 1 p.m., Upper 
Colorado Regional Office, Bennett Federal Building, 125 South State 
Street.
    For further information regarding the meetings, please contact 
Barry Wirth at telephone number (801) 524-3774.

Great Plains Region

    Malta, Montana--Wednesday, August 20, 2008, 7 p.m., Marian Hills 
Golf Course.
    Helena, Montana--Thursday, August 21, 2008, 7 p.m., Helena Regional 
Airport.
    For further information regarding the meetings, please contact Mark 
Andersen at telephone number (406) 247-7609.

IV. Summary of Changes, Comments, and Responses

    This section of the preamble describes changes from the proposed 
rule published on July 18, 2007, and provides responses to the comments 
received on that proposed rule by section. Nearly 1,300 comments were 
submitted by the public during the 90-day comment period. Of those 
comments, approximately 95 percent related directly to Sec.  429.32, 
which discusses how we will address existing uses that are otherwise 
prohibited.
    Comments received that are similar in nature have been categorized 
by subject. Comments and our responses on general issues not related to 
a specific section of the preamble or text of the proposed rule are 
arranged first. This section is followed by comments regarding the 
preamble of the previously proposed rule and our responses; and lastly, 
the changes we have made, comments received, and our responses related 
to specific sections of the text of the previously proposed rule.

General Comments and Responses

    Comment: Support was expressed for the proposed changes to the 
current rule and would like to see more private exclusive use areas 
converted to public use areas.
    Response: Due to the overwhelming reaction received during the 
comment period, we have reconsidered this issue.
    Comment: Appreciation was expressed for the high quality recreation 
related services provided to the public by our non-Federal managing 
partners.
    Response: We will continue to work with our existing managing 
partners and seek out additional managing partners, when appropriate, 
to provide high quality recreation opportunities.
    Comment: It appears that the intent of the proposed rule is to 
phase out all private access to Reclamation waterbodies. This would 
have an adverse effect on recreational boating and fishing as a whole 
as well as on the economies of neighboring communities. Amend the rule 
to strongly favor recreational uses.
    Response: We do not intend to phase out the public's use of our 
waterbodies. Recreational use of these waterbodies will continue under 
this proposed rule.
    Comment: The current rule is adequate and there is no need for 
revision.
    Response: Although some adjustments were made in the revision that 
was published in 2006, additional revisions are needed to incorporate 
current Federal regulations and policies concerning the use of Federal 
land and cost recovery for those uses.
    Comment: Clarification is needed to describe which bodies of water 
or facilities will be subject to authorizations and fees.
    Response: All waterbodies and facilities that are directly managed 
by Reclamation are subject to the authorization requirements and fees 
specified in the current rule and will continue to be so under the 
provisions of the proposed rule.
    Comment: A number of commenters, including managing partners, 
expressed concern that they did not receive adequate notice regarding 
the proposed rule making.
    Response: We are providing a 60-day public comment period in 
conjunction with the publishing of this proposed

[[Page 42238]]

rule and sending a copy of this proposed rule to each commenter who 
previously provided an address in a timely manner. Additionally, 
informational meetings as listed in the SUPPLEMENTARY INFORMATION 
section of this proposed rule are being conducted during the 60-day 
comment period.
    Comment: All water user organizations operating Reclamation 
projects under project operation and maintenance contracts should be 
specifically exempted from this proposed rule.
    Response: Under Sec.  429.4(b)(5) of this proposed rule, operation 
and maintenance activities on Reclamation land, facilities, and 
waterbodies authorized by contracts with water user organizations or 
Reclamation contractors do not require a use authorization.
    Comment: Reclamation should be maximizing its return for the use of 
Reclamation lands, facilities, and waterbodies by charging fees 
appropriately.
    Response: The proposed rule will comply with OMB Circular A-25 
which directs the recovery of administrative costs and use fees.
    Comment: Reclamation wants to eliminate all recreational and 
residential uses and replace them with grazing or agricultural permits 
at Nelson Reservoir in Montana.
    Response: Nelson Reservoir is known to provide valuable public 
recreational opportunities. We have no plans to eliminate all 
recreational and residential uses at Nelson Reservoir and replace them 
with grazing or agricultural permits.
    Comment: Specific requirements addressing riparian zone protection 
should be included in all grazing permits.
    Response: Terms required in all use authorizations issued by 
Reclamation are listed under Sec.  429.28 of the proposed rule. 
Additional terms and conditions or requirements are determined on a 
case-by-case basis to meet local, environmental compliance, and other 
legal requirements as stated under Sec.  429.29 of the proposed rule.
    Comment: It is unclear as to how this rule will affect non-Federal 
managing partners and their ability to continue to administer the 
Reclamation land and facilities that have been transferred to them at 
reservoirs for recreation and related purposes.
    Response: Paragraph 429.4(b) specifically excludes sites managed by 
non-Federal managing partners from the requirements associated with 
issuing recreational use authorizations that do not violate Subpart H 
of these regulations (e.g., allow for new private exclusive 
recreational or residential uses). Depending on the agreement between 
Reclamation and the non-Federal entity, the entity may also be 
authorized to issue use authorizations under Paragraph 429.5.
    Comment: The mandated placement of fencing between private property 
and the lakeshore at Lake Cascade, Idaho, will have a negative affect 
on adjacent homeowners and many people who recreate in the area.
    Response: Any operational or management plans for fencing at Lake 
Cascade, Idaho, are not mandated by or directly related to this 
proposed rule.

Preamble Comments and Responses

    Only those sections of the preamble to the proposed rule that 
received comments are discussed in this section.
IV. Procedural Requirements
    Comment: This section should include a meaningful analysis of 
Reclamation's intent for proposing Subpart H of the proposed rule.
    Response: The reason we are including Subpart H is because it is 
our responsibility to notify the public of uses that are prohibited on 
Reclamation land, facilities, and waterbodies; thus the primary purpose 
of Subpart H. Based on the comments received in 2007, we have revised 
our approach with regard to existing private exclusive recreational and 
residential use, while maintaining the prohibition on any new such 
uses.
1. Regulatory Planning and Review (Executive Order (E.O.) 12866)
    Comment: Under paragraph (a) this is a significant rule which under 
E.O. 12866 will have an effect of $100 million or more on the economy 
due to additional financial burdens being placed on the public.
    Response: The proposed rule actually lessens some of the impacts 
placed on the economy. As an example, the application fee is reduced 
from $200 to $100 in the proposed rule. The total amount of fees and 
charges we annually collect for uses of Reclamation land, facilities, 
and waterbodies is well under $100 million.
    Comment: Paragraph (b) states that this rule would not create a 
serious inconsistency or otherwise interfere with actions of another 
Federal agency. Other Federal agencies, however, seemingly continue to 
allow for private exclusive recreational or residential uses.
    Response: Each Federal agency has authorities, regulations, and 
policies that are unique to their mission and responsibilities and will 
necessarily result in differing practices for the management of lands 
and resources. How we address private exclusive recreational and 
residential uses has no impact on how other Federal agencies address 
that issue.
2. Regulatory Flexibility Act
    Comment: Because this rule expands use fees and authorizations to 
include navigable waterbodies and facilities, many associated small 
businesses will be required to submit reports to the agency to comply 
with the fee determining process.
    Response: The current rule requires that applicable use fees be 
paid for authorized uses of Reclamation waterbodies and facilities 
pursuant to OMB Circular A-25; the proposed rule does not expand on 
that requirement. Additionally, the proposed rule does not impose a 
reporting or recordkeeping requirement on small businesses.
3. Small Business Regulatory Enforcement Fairness Act
    Comment: The expansion of fees and cost recovery to facilities and 
waterbodies could result in increased costs or prices for consumers, 
individual industries, etc.
    Response: Section 429.1 of the current rule requires that 
applicable fees and cost recovery be assessed for the authorized use of 
Reclamation lands as well as facilities and waterbodies. The proposed 
rule does not expand on that requirement.
5. Takings (E.O. 12630 and E.O. 13406)
    Comment: Reclamation's determination that this proposed rule would 
have no implications for takings of private property rights is invalid.
    Response: This rule applies only to Reclamation land, facilities, 
and waterbodies. Any private personal property lawfully placed on 
Reclamation land, facilities, or waterbodies is there only by our 
permission through a use authorization. No real property rights are 
conveyed for Reclamation land, facilities, and waterbodies through such 
a use authorization. Additionally, Reclamation is not responsible for 
maintaining the value of private personal property, particularly when 
the authorized uses are not in compliance with the terms of the 
existing use authorization.
10. National Environmental Policy Act of 1969 (NEPA)
    Comment: This action does have a significant effect on the quality 
of the human environment because of the

[[Page 42239]]

impacts it would have on development in major urban areas. There is a 
need for an environmental assessment or environmental impact statement 
pursuant to NEPA.
    Response: The proposed rulemaking is a categorically excluded 
action pursuant to Department of the Interior Departmental Manual 516, 
Chapter 2, Appendix 1, Exclusion 1.10. As applications for specific use 
authorizations are evaluated under the proposed rule, the appropriate 
Reclamation office will determine the type of NEPA analysis that is 
warranted for the specific use requested.
13. Clarity of This Regulation
    Comment: In general, the proposed rule is vague, confusing, and/or 
inconsistent in content.
    Response: Changes have been made to the previously proposed rule to 
clarify sections that were specifically identified by commenters as 
unclear. We have also made editorial changes to improve the readability 
of the proposed rule.

Changes, Comments, and Responses Related to the Text of the Proposed 
Rule

Subpart A--Purpose, Definitions, and Applicability
    Comment: The effects of Sec. Sec.  429.3, 429.4, and 429.5 on non-
Federal managing partners are not clear and appear to be contradictory. 
Section 429.3(d) states that grazing, farming, and other agricultural 
uses require an authorization under this part. Section 429.4(b), 
however, states that activities at sites managed by non-Federal 
managing partners under Public Law 89-72 do not require authorization 
under this part. Additionally, Sec.  429.5 states that only Reclamation 
is authorized to issue use authorizations under this part.
    Response: Section 429.4(b) lists uses that are not subject to this 
proposed rule and specifically includes ``recreational activities at 
sites managed by non-Federal managing partners under Public Law 89-72, 
titled Federal Water Project Recreation Act, July 9, 1965, as amended . 
* * *'' Therefore Sec. Sec.  429.3(d) and 429.5 would not apply to our 
non-Federal managing recreation partners for recreational related uses.
    Section 429.1 This section describes the purpose of 43 CFR part 
429.
    To be consistent with changes made at Sec.  429.32, we added 
paragraph (f) to this section that describes how we will address 
existing permitted uses which are otherwise prohibited, including the 
criteria for approval or denial of requests to renew or transfer these 
permits. The paragraphs following were appropriately renumbered. Minor 
editorial changes were made to this section as compared to the 
previously proposed rule.
    Section 429.2 This section establishes the definitions for terms 
that are used in part 429.
    We made changes to this section as compared to the previously 
proposed rule by adding definitions for the following terms: easement, 
managing partner, part 21 of this title and public needs. We also 
broadened the definition of water user organization.
    Comment: The definition for private exclusive recreational or 
residential use is ambiguous and should more clearly explain what the 
extended period of time is that creates such a use.
    Response: The inclusion of a time component does create confusion 
and would wrongly imply that certain exclusive uses could be allowable 
for a limited time without a use authorization. We have now removed the 
reference to ``extended periods of time.'' Normal recreational 
activities, including camping for up to 14 days within a 30 day period, 
are specifically exempted by section 429.4(a). We have also provided 
examples of the most common instances of private exclusive recreational 
and residential use in the definition itself.
    Comment: The definitions in the proposed rule for Reclamation land 
and Reclamation facility should be amended to restore the words from 
the current rule under Sec.  429.6. This change would limit the 
applicability of the proposed rule to those lands and facilities that 
are in the control and custody of Reclamation; and would recognize that 
although Reclamation lands continue to be owned by the United States, 
they are managed by and placed in the custodial control of the water 
user organizations with whom Reclamation holds contracts.
    Response: This proposed rule applies to all land and facilities 
under our jurisdiction. It is our responsibility to manage these lands 
in the best interest of the United States and in compliance with 
applicable Federal statutes, regulations, and policies.
    Section 429.3 This section describes the types of uses of and 
activities on Reclamation land, facilities, and waterbodies that 
typically require a use authorization under part 429.
    We made only minor editorial changes to this section as compared to 
the previously proposed rule. It should be noted that part 5 of this 
title addresses some types of filming and photography on certain areas 
under the jurisdiction of the Department of the Interior. However, part 
5 of this title is specific to other agencies within the Department of 
the Interior not including Reclamation.
    Comment: Section 429.4 is not needed since the uses that require 
authorization are listed in Sec.  429.3. Only individuals who are 
seeking an authorization will be using this rule.
    Response: If there are common uses that do not require 
authorization, it is important that we notify the public in this 
proposed rule.
    Section 429.4 This section lists the types of uses of and 
activities on Reclamation land, facilities, and waterbodies that do not 
require authorization under part 429.
    We made editorial changes to this section as compared to the 
previously proposed rule.
    Comment: Paragraph (a) of this section states the types of 
activities that do not require authorization under this part which 
raises a concern regarding the well-being and safety of managing water 
user organization employees as they are performing their operation and 
maintenance duties on a daily basis. This paragraph seems to allow the 
general public access to all facilities. Such accessibility will not 
only increase operation and maintenance costs as a result of increased 
wear on roadways, but also dumping, vandalism, and opportunities for 
accidents.
    Response: Access to lands, facilities, and waterbodies under our 
jurisdiction is administered under 43 CFR part 423. Water user 
organizations should work through their local Reclamation office to 
establish closures for areas or facilities such as canals, laterals, or 
water pipelines that are unsafe or not appropriate for general public 
access as established under Subpart B of 43 CFR part 423.
    Comment: Paragraph (b)(5) of this section which suggests that 
Reclamation contracts for water supply or water operations do not 
require Reclamation authorization is directly contradictory to Sec.  
429.5 which states that water user associations have no authority to 
permit uses of Reclamation property.
    Response: Paragraph (b)(5) of this section states that Reclamation 
contracts for water supply or water operations do not require a use 
authorization. Under paragraph (b)(6) of this section water user 
associations are not required to obtain use authorizations for their 
contractual operation and maintenance activities on Reclamation land, 
facilities, or waterbodies.
    Comment: There is no need to list the uses that do not need 
authorization since we have listed those that do under Sec.  429.3.

[[Page 42240]]

    Response: We have provided information in this section specifying 
what common uses do not require authorization for clarification and as 
notification to the general public and our managing partners.
    Comment: Clearly list what activities are authorized on Reclamation 
land. Be specific to water conveyance facilities.
    Response: We have listed uses requiring an authorization at Sec.  
429.3. These uses must be authorized when they are on Reclamation land, 
facilities, or waterbodies which includes water conveyance facilities.
    Comment: Clarify what activities managed by other Federal agencies 
or Interior bureaus are exempted from authorization under this part.
    Response: Activities managed by other Federal agencies on 
Reclamation land, facilities, or waterbodies must be covered by an 
agreement or authority as specified in paragraph (b) of this section. 
For example, some recreation sites on Reclamation lands along the 
Colorado River are managed by the National Park Service through 
statutory authority.
    Comment: Differentiating between how lands are managed directly by 
Reclamation or by other Federal agencies or bureaus will create 
disparate treatment.
    Response: Each Federal agency has its own missions and authorities. 
These divergent missions and authorities will necessarily result in 
differing practices for the management of lands and resources.
    Comment: The 14-day limit for camping should be increased.
    Response: Reclamation's 14-day limit in any 30-day period is 
established under 43 CFR part 423.33(b). This proposed rule does not 
address that limitation.
    Section 429.5 This section addresses who is authorized under part 
429 to issue use authorizations.
    We have made changes to this section as compared to the previously 
proposed rule to state that recreation managing partners and water user 
organizations whose existing contracts with Reclamation allow them to 
do so may issue some limited use authorizations to third parties for 
activities on Reclamation land, facilities, and waterbodies provided 
those limited use authorizations meet the requirements listed in this 
section. It should be noted that all revenues collected for the use of 
Reclamation land, facilities, and waterbodies must be handled in 
compliance with all statutory, regulatory, and policy requirements.
    Comment: Water user organizations are specifically prohibited by 
this section from authorizing the use of project lands and as a result 
existing use authorization that they have issued may be nullified.
    Response: Water user organizations who have assumed responsibility 
for operation and maintenance of Reclamation land, facilities, or 
waterbodies pursuant to a contract with Reclamation may issue limited 
use authorizations to third parties for activities on Reclamation land, 
facilities, or waterbodies when all of the requirements listed in Sec.  
429.5 have been met.
    Comment: The proposed rule contradicts the terms of existing 
contracts between Reclamation and water user organizations for 
operation and maintenance of Reclamation projects.
    Response: Water user organizations who have assumed responsibility 
for operation and maintenance of Reclamation land, facilities, or 
waterbodies pursuant to a contract with Reclamation may issue limited 
use authorizations to third parties for activities on Reclamation land, 
facilities, or waterbodies when all of the requirements listed in Sec.  
429.5 have been met.
    Comment: The proposed rule would adversely affect water user 
organizations' ability to issue grazing permits and collect subsequent 
revenues from those permits creating a financial burden on the water 
user organizations and their farmers.
    Response: As noted above, we have made modifications that may allow 
for use authorizations to be issued by water user organizations. 
Financial issues can be impacted by project-specific laws, but in all 
cases revenues should be handled in accordance with all applicable 
statutes, regulations, and policies.
    Section 429.6 This section details when water user organizations 
must approve Reclamation's use authorizations.
    This section has been changed compared to the previously proposed 
rule to reflect provisions found in section 10 of the Reclamation 
Project Act of 1939 (43 U.S.C. 387) and to express the need for 
compatibility between use authorizations and a managing water user 
organization's ability to operate and maintain the facilities for which 
they have contractual operation and maintenance responsibility.
    Comment: Retain the language in the current rule or add language to 
the proposed rule that clearly states that water user organizations 
will continue to be alerted to uses that might interfere with their 
operation and maintenance of Reclamation project lands.
    Response: We have made changes to this section to re-incorporate 
some of the language in the current rule and to more clearly express 
the need for compatibility between requested uses and water user 
organizations' ability to manage the facilities for which they have 
contractual operation and maintenance responsibility.
Subpart B--Proposed Uses Involving Reclamation Easements
    Section 429.7 This section discusses the use of land not owned by 
Reclamation, but where Reclamation holds easements.
    We have made changes to paragraphs (a), (b), and (c) of this 
section compared to the previously proposed rule. These changes are 
intended to improve the clarity of this subpart and not to change its 
intent or purpose.
    Comment: Reclamation should be required to issue a consent document 
if the use does not unreasonably interfere with its easement. Doing so 
would increase the revenues being collected.
    Response: Reclamation lacks the authority to require users of 
private lands to pay use fees to Reclamation for the use of those 
private lands. When issuing a consent document is determined to be 
compatible with the intended project purposes for which the easement 
was obtained, all other appropriate and applicable fees are collected 
as required by regulation and policy.
    Section 429.8 This section discusses whether fees are required for 
the use of Reclamation easements.
    We made only minor editorial changes to this section as compared to 
the previously proposed rule. We received no comments on this section.
Subpart C--Requesting Authorizations To Use Reclamation Land, 
Facilities, and Waterbodies
    Section 429.9 This section explains what you should do before 
filing an application.
    We made no changes to this section as compared to the previously 
proposed rule. We received no comments on this section.
    Section 429.10 This section describes what application forms to use 
and how to determine which application form is appropriate to use.
    We made no changes to this section as compared to the previously 
proposed rule. We received no comments on this section.
    Section 429.11 Where the use authorization application forms can be 
found is provided in this section.

[[Page 42241]]

    We made no changes to this section as compared to the previously 
proposed rule.
    Comment: The forms as currently drafted do not include enough 
specificity regarding the required information to be submitted with an 
application. The current rule at Sec.  429.6 is clearer and more 
detailed in listing what is required.
    Response: This comment will be taken into consideration as we 
review Reclamation's Right-of Use Form 7-2540 for possible adjustments 
this year.
    Section 429.12 The appropriate location for filing an application 
is listed in this section.
    We made no changes to this section as compared to the previously 
proposed rule. We received no comments on this section.
    Section 429.13 This section tells how long the application review 
process will take.
    We made minor editorial changes to this section as compared to the 
previously proposed rule.
    Comment: Seven days should be an adequate amount of time to 
acknowledge receipt of an application and a determination to either 
accept or deny the request should be made within fourteen days.
    Response: While we will strive to respond to all applicants as 
quickly as possible, there are certain times of the year when the 
volume of applications exceeds our staff resources. Consequently we may 
not be able to respond within seven days. In order to meet the time 
frames suggested by this comment at such peak times, we would have to 
increase our staffing resources which would lead to higher fees for all 
applicants. We believe the approach we have selected is in the best 
interest of all parties.
    Section 429.14 The criteria Reclamation will consider when 
reviewing applications is described in this section.
    We made minor editorial changes to this section for clarity.
    Comment: The criteria used in reviewing applications are too broad 
and cannot be applied fairly and impartially.
    Response: We review each use application as it is submitted on a 
case-by-case basis considering the criteria under Sec.  429.14. As 
stated on the submitted application forms, we may request additional 
information as necessary to assist us in making a determination as to 
whether the proposed use of Reclamation land, facilities, or 
waterbodies is appropriate.
    Comment: Add an additional criterion that would require the 
proposed activity receive the consent of any affected water user 
organization.
    Response: Although we have not incorporated this comment into the 
criteria under Sec.  429.14, we have made changes to Sec.  429.6 to 
more specifically address this issue.
    Section 429.15 This section discusses whether Reclamation is 
required to issue use authorizations.
    We changed this section by adding a statement to the affect that 
all use authorizations must meet required criteria prior to issuance.
    Comment: Reclamation should not have the authority to issue 
authorizations at its discretion. Reclamation should be required to 
have a justification for declining an application.
    Response: We issue use authorizations at our discretion in order to 
protect the interests of the United States, as all use authorizations 
must be compatible with the purposes for which the Reclamation managed 
lands are being administered.
Subpart D--Application Fees and Administrative Costs
    Section 429.16 The amount of the application fee and when to pay 
the fee is described in this section.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.
    Section 429.17 This section explains under what circumstances 
administrative costs will be collected.
    We made no changes to this section as compared to the previously 
published rule. We received no comments on this section.
    Section 429.18 This section explains when administrative costs will 
be due and payable.
    We made minor editorial changes to this section as compared to the 
previously published rule.
    Comment: The administrative costs associated with the application 
process are not well-defined.
    Response: Administrative costs are determined on a case-by-case 
basis depending on the staff time required to evaluate and process the 
application, and to monitor, and terminate the use authorization when 
necessary. The definition of administrative costs in Sec.  429.2 
provides a listing of the most common elements associated with 
administrative costs. In addition, Sec.  429.20 provides that upon 
written request an explanation of the administrative costs for a 
particular application will be provided.
    Section 429.19 This section describes what the process is when the 
initial estimate for administrative costs is insufficient.
    We made no changes to this section as compared to the previously 
published rule. We received no comments on this section.
    Section 429.20 This section describes how to request a detailed 
explanation of the administrative costs.
    We made no changes to this section as compared to the previously 
published rule. We received no comments on this section.
    Section 429.21 This section describes what occurs if the 
administrative costs are overpaid.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.
    Section 429.22 This section discusses whether future administrative 
costs can be charged after a use authorization is issued by 
Reclamation.
    We made changes in paragraph (b) of this section to more clearly 
state how use authorization holders will be notified of additional 
required fees and payments due.
    Comment: The language in this section is ambiguous and arbitrary 
because it does not provide businesses with a fair basis upon which to 
predict costs. Fees for monitoring costs and the adjustment of fees to 
meet current conditions could have adverse effects on existing 
operations.
    Response: We cannot anticipate all administrative type costs in the 
future. Thus, we must have the ability to collect additional 
administrative costs when necessary.
Subpart E--Use Fees
    Section 429.23 How Reclamation determines use fees is described in 
this section.
    We made no changes to this section as compared to the previously 
proposed rule.
    Comment: The valuation basis for determining fees is not adequately 
defined and should be more fully developed and researched.
    Response: The valuation process is established in our Directives 
and Standards, LND 05-01 Real Property Appraisal, which may be found on 
our Internet site.
    Section 429.24 This section explains when use fees should be paid.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.
    Section 429.25 This section describes the length of time allowed to 
both submit a use fee payment and accept the offered use authorization.

[[Page 42242]]

    We made minor editorial changes to this section as compared to the 
previously published rule. We received no comments on this section.
Subpart F--Reductions or Waivers of Application Fees, Administrative 
Costs, and Use Fees
    Section 429.26 This section describes under what conditions 
Reclamation may waive or reduce costs or fees.
    We made changes to paragraph (a) of this section to better define 
how a determination for fee waiver or reduction is made.
    Comment: This section is confusing and arbitrary. The conditions 
under which a waiver can be granted are too broad and not well defined. 
Most applicants would qualify to apply for a waiver or a reduction in 
fees.
    Response: The table found under paragraph (a) of this section 
specifically lists under what situations we may determine that it is 
appropriate to reduce or waive fees.
    Comment: No change should be made to the language in the current 
rule regarding fee waivers or reductions.
    Response: We are making changes to this section to comply with the 
Independent Offices Appropriation Act (IOAA) (31 U.S.C. 9701), 
September 13, 1982, as amended and the 1993 revision of the Office of 
Management and Budget (OMB) Circular A-25. The IOAA sets forth 
Congress' intent that any use, permit, or similar thing of value 
provided by an agency is to be self-sustaining and that agencies may 
prescribe rules establishing charges for such uses. OMB Circular A-25 
established Federal policy which requires administrative costs be 
recovered for Government services, and fees for the use or sale of 
Government goods or resources also be charged.
    Comment: This section should be eliminated and no fee waivers 
should be allowed.
    Response: Under certain circumstances, fee waivers may be allowed 
under the current rule and section 6 of OMB Circular A-25.
    Comment: Allowing fee waivers or reductions would limit the 
revenues currently being generated and returned to Reclamation and in 
some instances water user organizations.
    Response: Section 6 of OMB Circular A-25 allows for a reduced fee 
or waiver under certain circumstances.
Subpart G--Terms and Conditions of Use Authorizations
    Section 429.27 This section describes the general information that 
is contained in each use authorization.
    We made no changes to this section as compared to the previously 
proposed rule. We received no comments on this section.
    Section 429.28 Terms and conditions that apply to all use 
authorizations from Reclamation are outlined in this section.
    We made minor editorial changes in this section as compared to the 
previously proposed rule.
    Comment: We disagree with paragraph (a)(3) of this section which 
requires terms in every use authorization allowing Reclamation to 
unilaterally terminate a use authorization.
    Response: It is our responsibility to properly manage the land 
under our jurisdiction. On occasion we may need to terminate a use 
authorization and even do so unilaterally. However, such instances are 
rare and limited to very unusual circumstances which we have specified 
in this section.
    Section 429.29 This section describes additional terms and 
conditions or requirements that will be included in a use 
authorization.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.
    Section 429.30 This section explains whether a use authorization 
can be transferred or assigned to another individual or entity.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.
Subpart H--Terms and Conditions of Use Authorizations
    Section 429.31 This section describes what the prohibited uses are 
on Reclamation land, facilities, and waterbodies.
    We made minor editorial changes to this section as compared to the 
previously proposed rule.
    Comment: A state transportation agency opposes paragraph (b)(1)(v) 
of this section. The agency is concerned that this section will be in 
direct opposition to their policies and will deny property owners 
access to existing easements.
    Response: For property owners that currently have authorization to 
access their existing easements, this proposed rule does not include 
any changes. Those who are crossing Reclamation lands without 
authorization will need to follow the procedures to obtain 
authorization. The documentation of these access situations will 
benefit and protect all parties.
    Section 429.32 How Reclamation will address existing uses which are 
otherwise prohibited is discussed in this section.
    We have revised the approach with regards to existing private 
exclusive recreational and residential uses that were not previously 
addressed by 43 CFR part 21. Specifically, under the July 2007 proposed 
rule such uses would have eventually had to be removed. Under the 
revised rule, such uses can remain if certain criteria are met, and 
they will be treated in a manner very similar to that outlined in 43 
CFR part 21.
    Under Sec.  429.32(b)(1), we have added additional criteria to 
which all existing authorized private exclusive recreational and 
residential uses of Reclamation land, facilities, and waterbodies, 
including those defined under 43 CFR part 21, are subject.
    The overall majority of comments received relate to this section of 
the proposed rule. Most of these commenters hold existing use 
authorizations for cabin sites or other recreational or residential 
uses, including boat docks, on Reclamation land, facilities, or 
waterbodies.
    Comment: Many commenters are concerned that their existing use 
authorizations for private exclusive recreational and residential uses 
will not be renewed upon expiration.
    Response: We will renew private exclusive recreational and 
residential use authorizations provided that the requirements of this 
proposed rule are met. Some cabin sites are also governed by 43 CFR 
part 21, and those regulations (which govern all Department of the 
Interior agencies, not just Reclamation) are not affected by this 
rulemaking; however, because the monitoring and enforcement procedures 
in this proposed rule are actually based on the existing rules in 43 
CFR part 21, this dual regulatory coverage should have little practical 
impact. Such renewals will be for a period not to exceed 20 years and 
will be subject to periodic reviews that could potentially result in an 
early termination.
    Comment: Holders of existing use authorizations for private 
exclusive uses stated that they have invested a significant amount of 
money in improvements located on Reclamation land, facilities, or 
waterbodies, and do not want to lose that investment.
    Response: A use authorization for private exclusive recreational or 
residential use does not vest an interest in Reclamation land, 
facilities, or waterbodies with the holder of the use authorization. 
Any physical improvements made by the holder of the

[[Page 42243]]

use authorization should be done so with the understanding that the 
ownership of the land, facilities, or waterbodies will continue to 
remain with the United States.
    Comment: The holders of use authorizations are better stewards of 
the land than Reclamation. They invest many hours in not only keeping 
their own authorized use area cleaned up, but also cleaning up adjacent 
areas.
    Response: We recognize that many holders of use authorizations are 
responsible caretakers. As the manager of those Federal lands, however, 
we have the ultimate responsibility for those Federal lands, and we 
must make certain that they are managed in the best interests of the 
United States.
    Comment: It is ambiguous and unclear as to when 43 CFR part 21 
applies. Specifically list which segments of 43 CFR part 21 will be 
followed or specify that it will be followed in its entirety.
    Response: We have decided to use the requirements in 43 CFR part 21 
to develop the requirements that will apply to all existing private 
exclusive recreational and residential use authorizations. This should 
result in consistent treatment of uses regardless of whether the part 
21 regulations technically apply. For example, personal cabin sites 
were subject to the part 21 regulations if they were authorized 
directly by Reclamation, but similar sites were exempt from these 
regulations if the area was managed under a concession contract. Now, 
both types of sites will be subject to this proposed rule which mimics 
the procedures previously established in part 21. The cabin sites 
directly authorized by Reclamation remain under 43 CFR part 21 as well.
    Comment: Section 429.32(a) states that renewal requests for cabin 
sites administered under 43 CFR part 21 will be reviewed by the 
Commissioner and approved where appropriate. The term appropriate sends 
a foreboding message and is ambiguous.
    Response: The responsibility for renewing use authorizations for 
recreational or residential uses has been returned to the appropriate 
field office under this proposed rule.
    Comment: Clearly define under what rare exceptions waivers would be 
granted by the Commissioner for renewals of recreational or residential 
uses of Reclamation land.
    Response: The requirement for a waiver in order to renew an 
existing private exclusive recreational or residential use 
authorization has been removed from this proposed rule.
    Comment: Non-profit organizations that hold use authorizations for 
activities such as summer youth camps should not be subject to the same 
regulations and fee requirements as for-profit organizations.
    Response: Section 429.26(a) of the proposed rule and the table that 
follows describe under what circumstances we may determine that it is 
appropriate to reduce or waive fees. Item 5 of the table specifically 
applies to non-profit or educational entities when the use provides a 
general public benefit.
    Comment: If private boat docks are eliminated as a result of this 
proposed rule, public boat docks which are not always conveniently 
located and are over used will receive increased pressure.
    Response: Provided that existing authorized boat docks meet the 
requirements, this proposed rule would not prevent the use 
authorization from being renewed.
    Section 429.33 This section describes the consequences for using 
Reclamation land, facilities, and waterbodies without authorization.
    We made changes to paragraphs (b), (e), and (f) of this section for 
clarification purposes only. In addition, we added a new paragraph 
under (b) to specify how the interest rate to be applied to the use fee 
for unauthorized uses will be determined.
    Comment: Existing commercial outfitters and/or concessionaires 
should have a preferential right of renewal for their authorizations. 
Other Federal agencies and Department of the Interior bureaus utilize 
this method.
    Response: Through Reclamation policies and directives, we have 
instituted a process of fair and open competition with regard to 
concession and similar contracts.
    Comment: There is no valid reason for capping the fees that can be 
collected for unauthorized use to 6 years.
    Response: We have removed the 6 year cap on collecting use fees for 
unauthorized uses of Reclamation land, facilities, and waterbodies. The 
applicable statute of limitations will be applied based on the 
circumstances associated with each unauthorized use.
Subpart I--Decisions and Appeals
    Comment: The appeal process follows a path within the Department of 
the Interior. A fair appeal process would include a representative 
small group rather than a supervisor to supervisor system.
    Response: The appeals process includes a two tier approach. First a 
review by a Reclamation office other than the office that made the 
final determination. Next, if the appellant still disagrees with that 
decision, the matter can be reviewed by an outside agency should the 
appellant choose to pursue the issue. We believe this is a fair 
process.
    Section 429.34 The decisionmaker for Reclamation's final 
determinations is listed in this section and provides when that 
decision will be effective.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.
    Section 429.35 This section explains if and when an appeal can be 
made to a final determination.
    We made no changes to this section as compared to the previously 
proposed rule. We received no comments on this section.
    Section 429.36 This section describes if and when a Commissioner's 
decision can be appealed. The process for and timeliness of such an 
appeal is also discussed in this section.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.
    Section 429.37 This section discusses what happens to monies owed 
to the United States during an appeal process.
    We made minor editorial changes to this section as compared to the 
previously proposed rule. We received no comments on this section.

V. Distribution Table

    The following table indicates each section of the original 1983 
rule, as modified in 2006, and where each was incorporated into the 
proposed rule or not included as the case may be.

------------------------------------------------------------------------
              Old section                          New section
------------------------------------------------------------------------
429.1.................................  429.1.
429.2(a)-(n)..........................  429.2.
429.3(a)..............................  429.23.
429.3(b)..............................  429.33(a) and (c).
429.3(c)..............................  429.33(a) and (b).
429.4.................................  429.26.
429.5.................................  Removed.
429.6.................................  429.7(b); 429.12; and 429.14.
429.6(a)..............................  429.10.
429.6(a)(1)-(3).......................  Removed. Now contained in
                                         Application Forms.
429.6(b)..............................  429.16; 429.20-429.22; and
                                         429.26.
429.6(c)(1)-(4).......................  429.26.
429.6(d)(1)-(4).......................  429.13(a) and (b).
429.6(e)..............................  429.19; 429.22.
429.6(f)..............................  429.23-429.25.
429.6(g)..............................  Removed. See Preamble.
429.7(a)..............................  429.27-429.30.
429.7(b)..............................  429.6.
429.7(c)..............................  Removed.
429.7(d)..............................  429.28(a)(3).

[[Page 42244]]

 
429.7(e)..............................  429.28(a)(1).
429.7(f)..............................  Removed.
429.8.................................  429.28(a)(2), (3), and (4).
429.9(a)..............................  429.28(a)(1).
429.9(b)..............................  429.28(b).
429.10(a).............................  429.34(a) and (b); 429.35(a),
                                         (b), and (c).
429.10(b).............................  429.36(a) and (b).
429.11................................  Removed.
429.12(a).............................  429.1; 429.3-429.6.
429.12(b).............................  429.4(a).
429.12(c).............................  429.26.
429.12(d).............................  429.4(g).
429.12(e).............................  Removed.
429.13................................  429.1; 429.3.
------------------------------------------------------------------------

VI. Procedural Requirements

1. Regulatory Planning and Review (Executive Order (E.O.) 12866)

    OMB has determined that this rule is not a significant rule and has 
not reviewed this rule under the requirements of E.O. 12866. We have 
evaluated the impacts of this rule as required by E.O. 12866 and have 
determined that it is not a significant regulatory action. The results 
of our evaluation follow:
    (a) This rule will not have an effect of $100 million or more on 
the economy. It would not adversely affect in any material way the 
economy, productivity, competition, jobs, environment, public health or 
safety, or State, local, and tribal governments or communities. The 
original rule covered only Reclamation lands. It was modified in 2006 
to explicitly incorporate uses of Reclamation facilities and 
waterbodies. The proposed rule requires collecting an initial, 
nonrefundable deposit of $100 (referred to as the ``application fee''), 
the recovery of additional administrative costs in excess of the 
initial application fee, and a fee for the use of Reclamation land. It 
should be noted that this rule reduces the initial application fee from 
$200 ($150 refundable under specific circumstances) to a nonrefundable 
$100 application fee. The rule does not change the requirement for full 
cost recovery of additional administrative costs in excess of the $100 
nonrefundable application fee or the requirement to collect the fee for 
use of Reclamation land, facilities, and waterbodies. Like the current 
rule, this rule provides for waivers or reductions of costs and fees 
under unique circumstances as determined to be appropriate by us 
incompliance with OMB Circular A-25.
    (b) This rule would not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. Since this 
rule is specific to Reclamation land, facilities, and waterbodies, any 
impact on another agency would be minimal. Nevertheless, nothing in 
this rule precludes us from cooperating with other agencies on proposed 
actions that may impact or require the use of Reclamation's land, 
facilities, and waterbodies. An example of our working with other 
agencies is this rule's requirement to use Standard Form (SF) 299, 
Application for Transportation and Utility Systems and Facilities on 
Federal Lands, under E.O. 13327. The purpose of E.O. 13327 is to 
promote the efficient and economical use of America's real property 
assets. This proposed rule also requires the use of Form 7-2540, Bureau 
of Reclamation Right-of-Use Application Form, for all other requested 
uses.
    (c) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, concessions, loan programs, water contracts, 
management agreements, or the rights and obligations of their 
recipients.
    (d) This rule does not raise any novel legal or policy issues. The 
recovery of administrative fees and charging of application and use 
fees are required by the IOAA, OMB Circular A-25, and the current rule.

2. Regulatory Flexibility Act

    The Department of the Interior (Interior) certifies that this 
document will not have a significant economic effect on a substantial 
number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601, et seq.). This rule does not impose a requirement for small 
businesses to report or keep records on any of the requirements 
contained in this rule. A small business's wish to apply to use 
Reclamation land, facilities, or waterbodies is strictly voluntary. One 
of the purposes of this rule is to provide small business applicants 
and others with the requirements they must follow when applying for 
such a use. An Initial Regulatory Flexibility Analysis is not required 
and, accordingly, a Small Entity Compliance Guide is not required.

3. Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a major rule under the Small Business 
Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more. There are no major changes in the costs or fees charged to 
applicants.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, local, or tribal 
government agencies, or geographic regions. It is anticipated that this 
rule will not result in significant increases in administrative costs 
or use fees for any one applicant, but it will clarify for the public 
the basis for determining such costs and fees.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based enterprises to compete with foreign-based 
enterprises. The cost to the private sector requesting use of 
Reclamation land, facilities, or waterbodies is a small fraction of a 
percent of an individual entity's total cost of doing business. Under 
this rule, such requests are made on a voluntary basis.

4. Unfunded Mandates Reform Act

    This proposed rule does not impose an unfunded mandate or a 
requirement to expend monies on the part of State, local, or tribal 
governments or communities, or the private sector of $100 million or 
more annually. This rule does not have a significant or unique effect 
on State, local, or tribal governments or communities, or the private 
sector. Requests from any of these entities to use Reclamation land, 
facilities, and waterbodies are strictly voluntary. If a requested use 
is authorized by Reclamation, the recovery of administrative costs and 
the payment of use fees associated with such use are required by law, 
OMB Circular, and regulation. There are provisions to allow a reduction 
or waiver of such costs and fees, at our discretion, when specific 
criteria are met. We are not imposing a duty, requirement, or mandate 
on State, local, or tribal governments or communities, or the private 
sector to request such uses. Thus, a statement containing information 
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is 
not required.

5. Takings (E.O. 12630 and E.O. 13406)

    Under the criteria in E.O. 12630 and E.O. 13406, this proposed rule 
does not have any implications of takings of property rights. This rul