Title of Regulation: 4VAC10-20. Standards for Classification of Real Estate as Devoted to Forest Use under the Virginia Land Use Assessment Law (amending 4VAC10-20-20).

Statutory Authority: §§ 58.1-3230 and 58.1-3240 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 4, 2013.

Effective Date: January 3, 2014.

Agency Contact: Ronald S. Jenkins, Administrative Officer, Department of Forestry, 900 Natural Resources Drive, Suite 800, Charlottesville, VA 22903, telephone (434) 977-6555, FAX (434) 293-2768, or email ron.jenkins@dof.virginia.gov.

Basis: According to the specific authority and responsibility conveyed by §§ 58.1-3230, 58.1-3233, and 58.1-3240 of the Code of Virginia, the State Forester is directed to provide a statement of the standards that shall be applied uniformly throughout the state to determine if real estate is devoted to forest use. The State Forester has adopted these Standards for Classification of Real Estate as Devoted to Forest Use under the Virginia Land Use Assessment Law (4VAC10-20).

Purpose: Standards for Classification of Real Estate as Devoted to Forest Use under the Virginia Land Use Assessment Law (4VAC10-20) were developed to (i) encourage the proper use of real estate in order to assure a readily available source of agricultural, horticultural, and forest products, and of open space within reach of concentrations of population; (ii) conserve natural resources in forms that will prevent erosion; (iii) protect adequate and safe water supplies; (iv) preserve scenic natural beauties and open spaces; (v) promote proper land-use planning and the orderly development of real estate for the accommodation of an expanding population; and (vi) promote a balanced economy and ease or lessen the pressures that force the conversion of real estate to more intensive uses.

The Department of Forestry held public hearings, pursuant to the Administrative Process Act (§ 2.2-4000 et. seq. of the Code of Virginia) to review the regulations, which provide guidance from the State Forester to each commissioner of revenue and the duly appointed assessor of each locality adopting an ordinance in compliance with Article 4 (§ 58.1-3229 et seq.) of Chapter 32 of Title 58.1 of the Code of Virginia. The justification for amending 4VAC10-20 is to update and clarify the language in the regulation.

Rationale for Using the Fast-Track Process: During the periodic review of these regulations, the Department of Forestry received zero comments. During the review of these regulations by members of the Board of Forestry, the department received only suggestions for improvement that were unanimously approved by the membership. No controversy has been documented regarding these regulations.

Substance: The amendments (i) adjust the definitions of "tree" and "stocking," (ii) add definitions for "diameter at breast high" and "basal area," and (iii) correct two numerical errors in 4VAC10-20-20 Table 1.

Issues: There are no identified issues associated with this regulatory action to the public, the agency, or the Commonwealth, or to the regulated community.

Small Business Impact Report of Findings: This regulatory action serves as the report of findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Forester proposes to: 1) update definition language to reflect current common usage, and 2) correct two numerical errors in the table titled Minimum Number of Trees Required per Acre to Determine 30 Square Feet of Tree Basal Area of 40% Stocking for Classification as Forest Land.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. According to the specific authority and responsibility conveyed by Code of Virginia §§ 58.1-3230, 58.1-3233 and 58.1-3240, the State Forester is directed to provide a statement of the standards which shall be applied uniformly throughout the state to determine if real estate is devoted to forest use. These regulations are those standards. The regulations are provided to provide clarity and guidance for localities that establish an incentive land use tax rate for landowners who maintain their land in forest use.

The proposed amendments to the definitions are not expected to have a significant impact on localities determinations on whether real estate is devoted to forest use since the proposed language change just reflects current usage. There is some potential small benefit to updating the language for clarity, though. According to the Department of Forestry, the errors in the table have not in practice caused any problems or incorrect determinations of forest use, or would be likely to do so in the future. Thus, the proposal to correct the errors in the table will be moderately beneficial in that it will improve clarity, but not likely have any other impact.

Businesses and Entities Affected. The proposed amendments are not expected to have significant effects beyond improving clarity. The standards in these regulations are used by localities in determining whether real estate is devoted to forest use for tax rate purposes. So more substantive changes could have affected landowners. Currently, 62 counties and 13 cities have an incentive tax rate for land in forest use.

Localities Particularly Affected. The proposed amendments particularly affect localities that have an incentive land use tax rate for landowners who maintain their land in forest use. The following counties have such specified forest use tax rates: Accomack, Albemarle, Alleghany, Amherst, Augusta, Bedford, Bland, Botetourt, Campbell, Caroline, Carroll, Chesterfield, Clarke, Culpeper, Cumberland, Dinwiddie, Essex, Fairfax, Fauquier, Fluvanna, Franklin, Frederick, Giles, Gloucester, Goochland, Greene, Hanover, Henrico, Henry, Isle of Wight, James City, King George, King William, Loudoun, Louisa, Madison, Middlesex, Montgomery, Nelson, Northumberland, Orange, Page, Pittsylvania, Powhatan, Prince George, Prince William, Pulaski, Rappahannock, Richmond, Roanoke, Rockbridge, Rockingham, Russell, Shenandoah, Smyth, Southampton, Spotsylvania, Stafford, Tazewell, Warren, Washington, and Westmoreland. The following cities have such specified forest use tax rates: Chesapeake, Danville, Franklin, Fredericksburg, Harrisonburg, Lynchburg, Manassas, Petersburg, Radford, Staunton, Suffolk, Virginia Beach, and Waynesboro.

Projected Impact on Employment. The proposal amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Department of Forestry concurs with the economic impact analysis conducted by the Department of Planning and Budget for amendments to Standards for Classification of Real Estate as Devoted to Forest Use Under Virginia Land Use Assessment Law (4VAC10-20).

Summary:

The amendments (i) modify the definitions of "tree" and "stocking," (ii) add definitions for "diameter at breast high" and "basal area," and (iii) correct two mistakes in 4VAC10-20-20 Table 1.

4VAC10-20-20. Technical standards for classification of real estate devoted to forest use.

A. The area must be a minimum of 20 acres and must meet the following standards to qualify for forestry use.

B. Productive forest land. The real estate sought to be qualified shall be devoted to forest use which that has existent on it, and well distributed, commercially valuable trees of any size sufficient to compose at least 40% normal stocking of forest trees, as shown in Table 1. Land devoted to forest use that has been recently harvested of merchantable timber, is being regenerated into a new forest, and not currently developed for nonforest use shall be eligible. To be qualified the land must be growing a commercial forest crop that is physically accessible for harvesting when mature.

C. Nonproductive forest land. The land sought to be qualified is land devoted to forest use but which is not capable of growing a crop of industrial wood because of inaccessibility or adverse site conditions such as steep outcrops of rock, shallow soil on steep mountain sides, excessive steepness, heavily eroded areas, coastal beach sand, tidal marsh, and other conditions which that prohibit the growth and harvesting of a crop of trees suitable for commercial use.

D. Definitions.

1. Tree. A tree is a single woody stem of a species presently or prospectively suitable for commercial industrial wood products. A living woody perennial plant, six inches or larger in diameter, of a species presently or prospectively suitable for commercial industrial wood products with a well defined stem or stems carrying a more or less definite crown.

2. Stocking. Stocking Normal stocking is the number of trees three inches and larger in diameter at breast high (d.b.h.- a point on the tree trunk outside bark 4 ½ feet from ground level) required to equal a total basal area (b.a. is the area in square feet of a cross section of a tree at d.b.h.) of 75 square feet per acre, or where such trees are not present, there shall be present tree seedlings, or tree seedlings and trees in any combination sufficient to meet the 40% stocking set forth in Table 1.

3. Diameter at breast high (DBH). The diameter of the stem of a tree measured at breast height (4.5 feet or 1.37 meters) above the ground.

4. Basal area. The cross-sectional area of a stem, including the bark, measured at breast height.

Table 1 Minimum Number of Trees Required Per Acre to Determine 30 Square Feet of Tree Basal Area of 40% Normal Stocking for Classification as Forest Land.
D.B.H. DBH Range	D.B.H. DBH in 2" Classes	Basal Area Per Tree	Per Acre	Per 1/5 Acre	Per 1/10 Acre
up to 2.9"	Seedlings		400	80	40
3.0-4.9"	4	0.0873	400 343	80	40
5.0-6.9"	6	0.1964	153	31	15
7.0-8.9"	8	0.3491	86	17	9
9.0-10.9"	10	0.5454	55	11	6
11.0-12.9"	12	0.7854	38	8	4
13.0-14.9"	14	0.0690 1.069	28	6	3
15.0-+	16+	1.3963	21	4	2

NOTE: (a) Area 1/5; acre; circle, diameter 105'4"; square 93'4" per side

(b) Area 1/10 acre; circle, diameter 74'6"; square 66' per side

(c) Number of seedlings present may qualify on a percentage basis; Example, 100 seedlings would be equivalent of 7.5 square feet of basal area (25% X 30 = 7.5).

(d) Seedlings per acre are based on total pine and hardwood stems. Where intensive pine management is practiced a minimum of 250 well distributed loblolly or white pine seedlings will qualify.