B-205369.OM, DEC 7, 1981

B-205369.OM: Dec 7, 1981

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REGULATIONS IMPLEMENTING THE ABOVE LEGISLATIVE GRANTS ARE CONTAINED IN TITLE 36.

B-205369.OM, DEC 7, 1981

SUBJECT: FOREST SERVICE TERM SPECIAL USE PERMITS (FILE B-205369; CODE 021970)

SUPERVISORY AUDITOR, DENVER RO - CRAIG RICHARDS:

YOU ASKED WHETHER THE UNITED STATES FOREST SERVICE CAN RECOVER FAIR MARKET VALUE FROM CONCESSIONERS HOLDING "TERM SPECIAL USE PERMITS." BASED ON OUR ANALYSIS, WE BELIEVE THE FOREST SERVICE CAN RECOVER FAIR MARKET VALUE.

THE ACT OF MARCH 4, 1915, AS AMENDED, 16 U.S.C. SEC. 497 (1976), AUTHORIZES THE SECRETARY OF AGRICULTURE UNDER SUCH REGULATIONS AS HE MAY MAKE AND UPON SUCH TERMS AND CONDITIONS AS HE MAY DEEM PROPER TO PERMIT THE USE AND OCCUPANCY OF SUITABLE AREAS OF LAND WITHIN THE NATIONAL FOREST, NOT EXCEEDING 30 YEARS, FOR COMMERCIAL PURPOSES. SIMILARLY, SECTION 7 OF THE ACT OF APRIL 24, 1950, 64 STAT. 84, 16 U.S.C. 580D (1976), AUTHORIZES THE SECRETARY OF AGRICULTURE UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE AND AT RATES AND FOR PERIODS NOT EXCEEDING 30 YEARS TO PERMIT THE USE BY PRIVATE CORPORATIONS OF STRUCTURES AND IMPROVEMENTS UNDER THE ADMINISTRATIVE CONTROL OF THE FOREST SERVICE AND LAND USED IN CONNECTION THEREWITH. PURSUANT TO THIS LEGISLATIVE GRANT OF AUTHORITY, THE SECRETARY HAS THE DISCRETION TO PERMIT THE USE OF NATIONAL FOREST LANDS TO CONCESSIONERS UNDER SUCH TERMS OR CONDITIONS AS HE DEEMS PROPER.

REGULATIONS IMPLEMENTING THE ABOVE LEGISLATIVE GRANTS ARE CONTAINED IN TITLE 36, PART 251, CODE OF FEDERAL REGULATIONS. THEY PROVIDE IN PART THAT ALL USES OF NATIONAL FOREST LANDS, IMPROVEMENTS, AND NATIONAL RESOURCES, EXCEPTING THOSE PROVIDED FOR IN THE REGULATIONS GOVERNING THE DISPOSAL OF TIMBER AND THE GRAZING OF LIVESTOCK OR OTHERWISE SPECIFICALLY AUTHORIZED BY ACTS OF CONGRESS, SHALL BE DESIGNATED "SPECIAL USES" AND SHALL BE AUTHORIZED BY "SPECIAL USE PERMITS." 36 C.F.R. SEC. 251.1(A) (1980). THE REGULATIONS FURTHER PROVIDE THAT SPECIAL USE PERMITS, EXCEPT AS OTHERWISE PROVIDED FOR, SHALL REQUIRE THE PAYMENT OF A FEE OR CHARGE COMMENSURATE WITH THE VALUE OF THE USE AUTHORIZED BY THE PERMIT, THE AMOUNT OF WHICH SHALL BE PRESCRIBED BY THE CHIEF OF THE FOREST SERVICE. 36 C.F.R. 251.3(A) (1980). THEREFORE, THE FOREGOING STATUTES AND IMPLEMENTING REGULATIONS PROVIDE THE BASIS FOR THE FOREST SERVICE TO RECOVER FAIR MARKET VALUE FROM CONCESSIONERS HOLDING TERM SPECIAL USE PERMITS.