Instructions on how to “join” the hearing webinar and provide an oral statement will be published on the Department’s proposed regulations webpage for 6 NYCRR Part 199 by July 13, 2022. The proposed regulations webpage for 6 NYCRR Part 199 may be accessed at: https://www.dec.ny.gov/regulations/propregulations.html

Persons who wish to receive the instructions by mail or telephone may call the Department at (518) 402-9003. Please provide your first and last name, address and telephone number and reference the Part 199 public comment period.

The Department will provide interpreter services for hearing impaired persons, and language interpreter services for individuals with difficulty understanding or reading English, at no charge upon written request submitted no later than August 23, 2022. The written request must be addressed to ALJ Richard Sherman, NYS DEC Office of Hearings and Mediation Services, 625 Broadway, 1st Floor, Albany, NY 12233-1550 or e-mailed to ALJ Sherman at [email protected]

Amend section 199.1(o) by defining the term “forester” to mean an individual who has earned an associate’s or higher degree in a program recognized by the Society of American Foresters, or who possesses qualifications for the practice of forestry essentially equivalent to those possessed by a graduate of a school of forestry in a degree program recognized by the Society of American Foresters. The existing regulations refer only to graduation from a “school of forestry;” the amendment thus clarifies the minimum level of education required.

Amend section 199.1(p) by clarifying that the requirement for forest land to contain at least 500 stems per acre or 60 square feet of basal area shall apply at the time of initial enrollment in the program only. The current regulations are ambiguous and could be interpreted to prohibit even-aged management systems, which may by necessity temporarily reduce stands to less than 500 stems or 60 square feet per acre.

Amend section 199.1(q) by removing the redundant requirement that individual stand prescriptions be provided pursuant to section 199.6(b).

Add new section 199.1(r) to define the term “high-grading” as the removal of the most commercially valuable trees (by reason of size, quality or species) at the expense of future growth or future financial return, often leaving a residual stand composed of trees of poor condition or species composition. It is necessary to define the practice in order to prohibit it in a later provision of the regulations.

Re-number section 199.1(r) as section 199.1(s).

Re-number section 199.1(s) as 199.1(t) and amend it by: clarifying that the owner of an enrolled property has the discretion to designate the merchantable forest crop for production in the period covered by the management plan; clarifying the language defining such products, and; specifying that other tangible wood products, maple sap, and carbon credits are not considered merchantable forest crops for the purposes of Part 199. The intent of the statute is clearly to encourage the production of tangible goods. Participating landowners may still participate in carbon markets as long as doing so does not conflict with the purposes of the program.

Re-number sections 199.1(t), 199.1(u), 199.1(v) and 199.1(w) to sections 199.1(u), 199.1(v), 199.1(w) and 199.1(x), respectively.

Re-number section 199.1(x) to section 199.1(y) and amend it by: clarifying that a stand must be at least one contiguous acre in size and at least 120 feet in any two dimensions, and; clarifying that hedgerows, shelterbelts, wind breaks, and other non-forest tree assemblages shall not be considered stands. This clarification eliminates an unintended loophole in the regulations, which allowed the inclusion of areas that contain trees but do not function as forests.

Re-number sections 199.1(y), 199.1(z) and 199.1(aa) to sections 199.1(z), 199.1(aa) and 199.1(ab), respectively.

Amend section 199.5(b) by: reducing the number of copies of the management plan required to be submitted from two to one, and; adding a requirement that completed applications must include a signed attestation certifying that the owner has reviewed the requirements of the program with the regional forester or their designee and has had the opportunity to ask questions and request clarification of said requirements. This amendment is intended to improve compliance by ensuring enrolled landowners are fully informed of the obligations they are agreeing to.

Amend section 199.5(c) by: clarifying that the owner must mark the property boundary lines defining the committed acreage and lines designating eligible noncommitted acreage of eligible tracts submitted for certification, and; deleting language allowing fences, stonewalls, posters, and other constructed or natural features to be used as boundary line marking. The boundaries between eligible and ineligible acreage is generally recognizable and thus does not need to be marked by the owner; existing regulations are ambiguous and could be interpreted to unnecessarily require these lines to be marked. Fences, stone walls and other objects that are not placed as part of a property survey are not reliable indicators of actual property line location.

Amend section 199.5(e) by: setting September 1 as the deadline for submission of applications; changing the amount of time allowed for the department to approve or reject applications from 60 day to 90 days, and; clarifying the time frame within which the landowner has the opportunity to remedy deficiencies for which an application is rejected.

Amend section 199.5(f) by: specifying that all certificates of approval issued by the department shall include the approved work schedule found in the approved management plan and shall also be incorporated into and become part of the approved management plan. Current regulations do not provide the department a means of ensuring that a prescription is followed as approved. Because the statute and regulations require the owner to follow the approved management plan, making an approved prescription part of the management plan in effect requires that the approved prescription be followed as written.

Move the requirement for lands from which a merchantable forest crop has been cut or removed within three years prior to the time of application from section 199.6(a)(9) to section 199.5(g).

Amend section199.6(a) by: deleting the list of elements required to be included in an approved management plan and replacing it with a requirement that approved management plans be written using a template provided by the department, which will include all the necessary plan elements, and; changing the length of the required work schedule from 15 years to 20 years.

Amend section 199.6(b) by: adding the requirement that any cutting prescriptions submitted to and approved by the department pursuant to section199.7(b) of this Part shall be incorporated into and become part of the approved management plan and; moving the requirements for submitting cutting prescriptions to section 199.7(b).

Amend section 199.6(c) by: clarifying that for the purposes of the forest tax law program, high-grading is not an acceptable management system and; deleting the duplicative requirement that noncommercial cuttings scheduled for an eligible tract be completed during the year in which they are scheduled. (The requirement is also found in section 199.8(c) of this Part).

Amend section 199.6(d) by clarifying that grazing or otherwise integrating domestic animals in forest management systems is allowable on all committed acres, if it is listed as a treatment in an approved prescription. Existing regulations prohibit grazing on committed acres. Allowing this practice as part of an approved prescription increases options for landowners to control competing vegetation and engage in compatible agroforestry activities.

Amend section 199.7(b)(1) by adding the requirement that any notice of commercial harvest cutting must list all stands to be harvested and include a cutting prescription prepared by a forester for each stand to be treated in said harvest.

Amend section 199.7(b)(2) by: clarifying the department shall affirmatively approve or reject cutting prescriptions; specifying that certification of stumpage value is to take place upon approval of such prescription, and; specifying that cutting prescriptions submitted to and approved by the department shall be incorporated into and become part of the approved management plan.

Amend section 199.8 by: adding new subdivision (e), requiring updated work schedules to include treatments to establish regeneration in stands that have undergone a natural or human disturbance; allowing landowners to withdraw stands from commitment without penalty if the landowner has complied with the approved management plan but has failed to establish sufficient regeneration of commercial species and; specifying that failure to implement the approved management plan regarding treatments intended to establish forest regeneration shall result in revocation pursuant to section 199.10(c) of this Part.

Amend section 199.9 by: clarifying that in addition to being extended or amended by filing a written request with the department, an approved management plan may also be updated by the same procedure and; extending the amount of time in which the department will determine the acceptability of the proposed change and inform the owner of its determination from 10 day to 30 days of receipt of the request.

Amend section 199.9(b) by: extending the period between required management plan updates from five years to ten years.

Add new section 199.9(c) to require owners of enrolled properties to submit a narrative update of material changes to such properties on or before December 31 of the fifth calendar year during which the properties are enrolled, using forms supplied by the department. This amendment, combined with the amendment to section 199.9(b) reduces the amount of paperwork required of participating landowners.

Amend section 199.10(f) to clarify that enrolled parcels may be revoked without penalty if it is determined that the parcel is not eligible and was enrolled in error. Existing regulations are silent on the treatment of parcels enrolled in error. While existing case law supports the authority of agencies to correct administrative errors, adding language to these regulations will affirmatively allow the department to correct errors that are not the fault of participating landowners.

Add new section 199.10(g) to clarify that no penalty shall be assessed to the owner if an acreage correction results in the reduction of eligible acres. This amendment is intended to protect landowners from penalties that could arise from circumstances that are not their fault, such as improvements to technology or mapping errors.

Add new section 199.12 which will: require persons preparing management plans, management plan amendments or cutting prescriptions for approval to participate in department-approved training for the preparation of management plans and cutting prescriptions; require such persons to meet with a department forester prior to submitting additional plans or prescriptions if the preparer has had more than three management plans or cutting prescriptions rejected by the department in a period of twelve consecutive months; stipulate that the department shall reject any plan or prescription submitted by a person who has had more than three management plans or cutting prescriptions rejected by the department in a period of 12 consecutive months and has not met with a department forester to discuss such rejections, and; stipulate that if any person has had more than nine management plans or cutting prescriptions rejected by the department in a period of 48 consecutive months, the department shall reject any plan submitted by such person for a period of one year, and until such person shall meet with a department forester to discuss such rejections. This amendment is intended to ensure a base level of knowledge about the program on the part of foresters serving participating landowners, and to discourage foresters from repeatedly submitting incomplete and sub-standard documents.

1. Statutory Authority

Real Property Tax Law (“RPTL”) § 480-a related to taxation of forest land authorizes the Department of Environmental Conservation to, after public hearings, adopt and promulgate rules and regulations necessary to implement the provisions of RPTL § 480-a.

2. Legislative Objectives

RPTL 480-a and the implementing regulations, 6 NYCRR Part 199 (“Part 199”) were initially adopted in 1976 for the purpose of providing tax relief to qualifying landowners to encourage long-term private ownership of woodlands to produce forest crops and thereby increase the likelihood of a stable forest economy. The Part 199 regulations established to implement RPTL 480-a have not been significantly changed or updated since they were originally adopted 45 years ago. The proposed amendments to Part 199 are intended to improve and sustainably manage New York’s forest resources and lessen the administrative burden placed on participating landowners and Department staff. Specifically, the primary objective of this amendment is to respond to public feedback by improving the efficiency and effectiveness of the program.

3. Needs and Benefits

Over the years, many 480-a program participants have expressed dissatisfaction and frustration with the current law and regulations. Chief among these complaints are the rigid annualized work schedule and the costs associated with following program requirements. Similarly, other eligible forest owners have indicated their reluctance to enroll because of the burdensome requirements imposed by the current regulations. These concerns have limited the program’s reach and effectiveness as a tool to promote and support forest retention and sustainable management of forests. After over 45 years of existence, only about 12-15% of all eligible properties are currently enrolled in the 480-a program.

The revised regulations are intended to provide efficiencies which will allow staff to improve the administration of the current program. The proposed amendments are intended to address these concerns by:

Amending subdivision 199.5(b) to require a signed attestation certifying that the owner has reviewed the requirements of the program with a Department forester. This will keep the landowner informed of program requirements and reduce compliance issues.

Amending subdivision 199.5(e) to set a new application and update deadline of September 1st, preceding the first eligible taxable status date for enrollment. The review period will also increase from 60 to 90 days. This will allow staff to inspect properties during the field season to give sufficient time for a thorough review prior to enrollment and will allow the landowner and consulting forester more time to correct errors found on the property or in the management plan before the taxable status date.

Amending subdivision 199.6(a) to extend the term of the forest management plan from one 15 year work schedule to 20 years broken into two ten year work periods will allow landowners a longer period to complete required work as opposed to an annualized work schedule. This flexibility will achieve efficiencies by reducing the frequency of management plan amendments.

Amending subdivision 199.9(b) to extend the required management plan update from five to ten years will eliminate unnecessary data collection and provide efficiencies for participating landowners. Additionally, subdivision 199.9(c) now requires landowners to provide a narrative update of material changes to the enrolled parcel every five years which will keep Department staff informed of substantive changes on the property, without requiring unnecessary field data collection.

RTPL 480-a is intended, in part, to incentivize enrollees to continuously produce a merchantable forest crop consistent with environmentally and economically sound silvicultural practices. The current regulations do not adequately ensure that enrollees will provide for adequate regeneration, nor do they ban the practice of high grading. The proposed amendment is intended to ensure forest sustainability within the program by:

Amending § 199.1 by adding subdivision 199.1(r) to define high grading as the removal of the most commercially valuable trees (by reason of size, quality or species) at the expense of future growth or financial return, often leaving a residual stand composed of trees of poor condition or species composition. Proposed language to subdivision 199.6(c) now states that high grading is not an acceptable silvicultural practice the owner can select. This explicitly makes it clear that unsustainable forestry practices or prescriptions will not be accepted under Forest Tax Law and is grounds for revocation from the program.

Amending subdivision 199.6(b) so that any cutting prescriptions submitted to and approved by the Department pursuant to subdivision 199.7(b) shall be incorporated into and become part of the approved management plan. Deviation from the approved prescription is therefore a deviation from the approved plan.

Amending subdivision 199.6(d) to allow grazing by domestic animals for the purposes of treating interfering vegetation under an approved prescription. This allows landowners to incorporate new methods of interfering vegetation control to help secure forest regeneration on their property using domestic animals, if the owner incorporates the practice into the approved forest management plan.

Amending subdivision 199.8(e) so that at the time of amending the management plan as required in subdivision 199.9(b), the work schedule shall be amended to include treatments to establish regeneration in stands that have undergone a natural or human disturbance, if the stand is not reoccupied with enough regeneration of commercial species to ensure future production of merchantable forest crops. This proposed provision establishes a requirement of the enrollee to attempt to regenerate stands by using accepted forestry methods within a reasonable, scientific time frame (ten years) with a provision to remedy a failure. A penalty would only be appropriate if an owner refuses to attempt to regenerate a stand as stated in the approved management plan.

Adding a new subdivision 199.10(g) to clarify the Department can remove committed acres due to re-measurement without penalty.

Adding a new § 199.12 to establish a management plan and cutting prescription preparers training requirement. Landowners are for the most part, exclusively reliant on the advice and skill of a consultant forester to comply with many of the forestry provisions of the Forest Tax Law. The Department is proposing to create a training requirement for consulting foresters working under Forest Tax Law on the behalf of the landowner. This training along with other proposed regulations and handbook changes set requirements on how management plans and prescriptions should be written under Forest Tax Law.

Additionally, the proposed amendment revises subdivision 199.6(a) to require forest management plans use a template approved by the Department. This approved template will provide clear guidance to consulting foresters on what is an acceptable plan and allow staff to review plans more efficiently and accurately.

A robust outreach effort was developed and implemented throughout 2018 and 2019 to gather stakeholder input on how to improve the Forest Tax Law program through regulatory reform. In the fall of 2018, program staff gathered suggestions from Department field staff as well as attendees of the annual New York Society of American Foresters (NYSAF) meeting in January of 2019. Eleven public meetings (ten in person meetings and one webinar) were held throughout the winter and spring throughout the state. These stakeholder meetings were well attended by enrolled and non-enrolled landowners, consulting foresters, Department program and regional staff as well as municipal officials. Staff presented ideas for reform that had been received from the July 2019 meeting, regional staff visits, and program discussions. Comments were taken at each meeting and incorporated into subsequent presentations. Additional comments were received via email, letter and by phone and are currently posted on the Department’s Division of Lands and Forests Private Land Services website. At the NYSAF annual meeting in January 2020 staff received additional comments on recommended regulatory changes. There will be an opportunity for the public to officially comment on the proposed regulations during a 60-day public comment period when the regulation appears in the New York State Register as a proposed rulemaking.

4. Costs:

The proposed revisions to Part 199 pursuant to the provisions of subdivision 199.8(e) may increase costs to participating landowners by requiring them to secure forest regeneration through deer control strategies or competing vegetation control for some certified acres to remain enrolled. However, such costs are offset by the long-term tax savings from enrollment in the program. The proposed amendments are intended to improve forestry outcomes and to lessen the administrative burden on current enrollees and the Department.

5. Local government mandates:

Real Property Tax Law 480-a provides tax relief to qualifying landowners in exchange for implementation of sustainable forest management. The proposed amendments to Part 199 change what is required of enrolled landowners; they do not impose any new or additional burdens on county clerks or local government officials.

6. Paperwork:

The proposed regulatory revisions will reduce paperwork requirements for Forest Tax Law program applicants and participants by extending the period between mandatory management plan updates from every five years to every ten years. A shorter narrative check-in at five years will replace the requirement for a full five year update.

7. Duplication:

The proposed regulatory revisions do not duplicate any existing state or federal regulation.

8. Alternatives:

The no action alternative is not feasible since leaving the existing regulation as is would not reflect the need to update the regulations to provide efficiencies for both the regulated community and the Department. One alternative to the proposed revisions would be a legislative amendment to allow comprehensive revisions to RPTL 480-a. This would allow for other regulatory amendments such as: lowering the minimum acreage requirement, revising the penalty structure, or requiring the landowner to be the primary manager for enrolled forest acreage for timber. These amendments would make the Forest Tax Law more attractive to landowners and thus increase enrollment, make the program more efficient and increase program benefits, however without legislative authorization the Department cannot make these amendments. The Department tried the legislative approach, but the proposal was not approved.

A public meeting suggestion requiring landowners to take a course to learn program requirements before enrollment was not adopted and deemed overburdensome for enrollees. Other public meeting suggestions included developing a mapping standard and technical forestry and management plan details which did not require regulatory amendments to remedy.

9. Federal standards:

There are no applicable federal standards.

10. Compliance schedule:

It is anticipated that enrollees and new applicants will be able to comply with the amendments prior to the effective date of March 1, 2023 for the 2024 tax roll year.

The proposed amendments to 6 NYCRR Part 199 will address improving and sustainably managing New York’s forest resources and lessening the administrative burden placed on participants and Department staff. Real Property Tax Law 480-a provides tax relief to qualifying landowners in exchange for implementation of a sustainable forest management. The proposed amendments to Part 199 change what is required of enrolled landowners; they do not impose any new or additional burdens on county clerks or local government officials.

As a result, a Regulatory Flexibility Analysis for small businesses and local governments is not submitted with these regulations because the proposal will not impose any adverse economic impact or reporting, recordkeeping, or other compliance requirements on small businesses or local governments beyond those already required by Real Property Tax Law 480-a.

The proposed amendments to 6 NYCRR Part 199 will address improving and sustainably managing New York’s forest resources and lessening the administrative burden placed on participants and Department staff. The proposed amendments are intended to improve forestry outcomes and to lessen the administrative burden on current enrollees and the Department.

As a result, a Rural Area Flexibility Analysis is not submitted with these regulations because the proposal will not impose any additional reporting, record-keeping or other compliance requirements on rural areas.

The proposed amendments to 6 NYCRR Part 199 will address improving and sustainably managing New York’s forest resources and lessening the administrative burden placed on participants and Department staff. The proposed amendments are intended to improve forestry outcomes and to lessen the administrative burden on current enrollees and the Department.

As a result, a Job Impact Statement is not required and is not submitted because the proposal will have no substantial adverse impact on existing or future jobs and employment opportunities.