RULES AND REGULATIONS

Title 7—AGRICULTURE

DEPARTMENT OF AGRICULTURE

[ 7 PA. CODE CH. 137b ]

Preferential Assessment of Farmland and Forest Land under the Clean and Green Act

[45 Pa.B. 3311]
[Saturday, June 27, 2015]

 The Department of Agriculture (Department) amends Chapter 137b (relating to preferential assessment of farmland and forest land under the Clean and Green Act) to read as set forth in Annex A.

Purpose of this Final-Form Rulemaking

 The final-form rulemaking implements the Pennsylvania Farmland and Forest Land Assessment Act of 1974 (72 P. S. §§ 5490.1—5490.13), commonly referred to as the Clean and Green Act (act). In summary, the act allows owners of agricultural use, agricultural reserve or forest reserve land to apply for preferential assessment of their land. If an application is approved, the subject land receives an assessment based upon its use value, rather than its market value.

Statutory Authority

 The final-form rulemaking is adopted under authority of section 11 of the act (72 P. S. § 5490.11), which requires the Department to promulgate regulations necessary to promote the efficient, uniform, Statewide administration of the act.

Need for the Final-Form Rulemaking

 The final-form rulemaking adds definitions and makes amendments to implement the most recent amendments to the act. These amendments are: the act of December 8, 2004 (P. L. 1785, No. 235) (Act 235); the act of October 27, 2010 (P. L. 866, No. 88) (Act 88); the act of November 23, 2010 (P. L. 1095, No. 109) (Act 109); the act of July 7, 2011 (P. L. 212, No. 34) (Act 34); the act of July 7, 2011 (P. L. 213, No. 35) (Act 35); and the act of October 24, 2012 (P. L. 1499, No. 190) (Act 190).

 The final-form rulemaking adds language to resolve questions the Department has encountered in the administration of the act. It also defines several commonly used terms to help avoid confusion and create a more uniform interpretation and application of the act and the regulations. In addition, the final-form rulemaking provides new language describing how farmstead land is to be enrolled and assessed, addresses the types of recreational activities that can be conducted upon enrolled land without adverse financial consequences for the landowner and corrects the regulation describing the process by which roll-back taxes are to be calculated.

 In summary, the Department is satisfied there is a need for the final-form rulemaking and that it is otherwise consistent with Executive Order 1996-1, ''Regulatory Review and Promulgation.''

Description of the Final-Form Rulemaking

 In its comments regarding the proposed rulemaking, the Independent Regulatory Review Commission (IRRC) offered that the summary presented in the preamble to that document did not provide IRRC adequate information to determine whether the rulemaking is in the public interest. IRRC asked that the preamble to the final-form rulemaking provide an adequate description of the sections of the rulemaking and the rationale behind the language being added or deleted. The following section-by-section description is offered in response.

§ 137b.2. Definitions

 The term ''agricultural commodity'' is defined in the act and was most recently amended by Act 190, which added ''compost'' to the list of items that constitute an agricultural commodity. The amendment to this definition brings it into alignment with its statutory counterpart in section 2 of the act (72 P. S. § 5490.2).

 The terms ''agricultural reserve,'' ''agricultural use'' and ''forest reserve'' are defined in the act and were most recently amended by Act 88. The amendments to these definitions bring them into alignment with their statutory counterparts.

 The terms ''agritainment'' and ''county commissioners'' were added to the act by Act 235. The definitions in this section repeat the statutory definitions.

 The terms ''alternative energy system'' and ''Tier I energy source'' were added to the act by Act 88. The definitions in this section repeat the statutory definitions.

 The terms ''change of use'' and ''division by conveyance or other action of the owner'' are used in the act, but are not defined. The definitions adopted in the final-form rulemaking are interrelated. They also identify the types of actions that do not constitute either ''change of use'' or ''division by conveyance or other action of the owner.'' The Department's objective is to clarify that the subdivision of land, the sale of land to a different landowner or the intention of the landowner with respect to the ultimate use of the land do not determine whether the use of the land has changed to something other than agricultural use, agricultural reserve or forest reserve, or whether a separation or split-off has occurred on the enrolled land. These definitions address questions that have arisen as the Department has administered the act over the years, and should serve to clarify that the terms refer to actual changes in the physical use to which the enrolled land is being put.

 The term ''compost'' was added to the act by Act 190. The definition in this section repeats the statutory definition.

 The term ''direct commercial sales'' was added to the final-form rulemaking in response to a recommendation from IRRC that is described in greater detail in Comment 41 as follows.

 The term ''land use subcategory'' is amended to make clear that county-specific average timber values provided to county assessors by the Department each year fall within the definition. This clarification is discussed in greater detail in Comment 35 as follows.

 The final-form rulemaking adds a citation to the Noncoal Surface Mining Conservation and Reclamation Act (52 P. S. §§ 3301—3326), since a reference to this statute was added to section 6(c.4)(1) of the act (72 P. S. § 5490.6(c.4)(1)) by Act 34 and a reference also appears in § 137b.73c (relating to small noncoal surface mining).

 The final-form rulemaking adds a citation to 58 Pa.C.S. §§ 3201—3274 (relating to development), since a reference to this statute was added to section 6(c.1)(3) of the act by Act 88 and references appear in § 137b.73a (relating to gas, oil and coal bed methane).

 The term ''outdoor recreation'' is used in the statutory definition of ''agricultural reserve.'' Land that is enrolled under the agricultural reserve land use category must be open to the public for outdoor recreation. The final-form rulemaking clarifies the definition of ''outdoor recreation'' by: (1) providing examples of various types of passive recreational uses that constitute outdoor recreation; and (2) placing the same limitations on the operation of motor vehicles in the statutory definition of ''recreational activity.''

 The term ''recreational activity'' was added to the act by Act 235, as were references to that term in sections 3(f) and 8(f) of the act (72 P. S. §§ 5490.3(f) and 5490.8(f)). The final-form rulemaking repeats the statutory definition. In summary, Act 235 made clear that preferential assessment of enrolled agricultural use land or forest reserve land is not breached, and roll-back tax liability is not triggered, if that land is used for recreational activity.

 The term ''rural enterprise incidental to the operational unit'' is amended by reformatting it into numbered paragraphs for easier reading and adding the requirement from section 8(d)(1)(i) of the act that these enterprises be owned and operated by the landowner or persons who are Class A beneficiaries for inheritance tax purposes. This amendment establishes a definition that is more complete and consistent with the act.

 The act defines ''agricultural commodity'' as including silvicultural products, but does not define these products. The definition of ''silvicultural products'' in the final-form rulemaking seeks to distinguish between actively-cultivated tree or tree product operations and trees or tree-derived products from forest land. The significance of this distinction is that if land is used for the production of silvicultural products then: (1) it fits within the definition of ''agricultural use'' land and will be assessed as agricultural use land rather than as forest reserve land; and (2) farmstead land on agricultural use land automatically receives preferential assessment while farmstead land on forest reserve land might not. The examples in the definition reflect factual situations the Department has encountered in its administration of the act, and help clarify the line drawn by the definition.

§ 137b.12. Agricultural use

 Act 88 revised the statutory definition of ''agricultural use'' land to include land devoted to the development and operation of an alternative energy system ''if a majority of the energy annually generated is utilized on the tract.'' Section 137b.12(3) (relating to agricultural use) that restates the statutory language regarding alternative energy systems and makes the regulation more consistent with the act. Section 137b.12 also includes eight new examples. The Department believes that the inclusion of examples—particularly ones that relate to new or recent revisions to the act or that include fact situations the Department has encountered in its administration of the act over the years—provides the regulated community helpful guidance in navigating the complex subject matter of the act.

 IRRC noted that the Department seeks to amend § 137b.12 and §§ 137b.13 and 137b.14 (relating to agricultural reserve; and forest reserve) by adding language that includes the ''if a majority of the energy annually generated is utilized on the tract'' language referenced in the preceding paragraph. IRRC asked that this preamble ''. . . explain how this provision will be implemented.''

 Although several commentators made requests similar to IRRC's and the Department addresses these in its responses to Comments 3 and 15 as follows, the Department notes that none of these commentators was a county assessor or landowner who actually encountered a problem in navigating this standard in the nearly 4 years this standard has been in effect. At this point, the Department does not believe it is necessary to attempt to establish specific standards of proof that must be met for a landowner to demonstrate that a majority of the energy annually generated from an alternative energy system is utilized on the same enrolled tract where that system is located. In some instances, compliance with this standard will be self-apparent, such as where the lines carrying the energy do not connect to lines that extend off the tract. In some instances the utility bills received by the landowner may contain adequate information to discern the amount of energy generated on a tract and the amount of energy consumed on that same tract. In other instances there may be records or readouts that are generated or available at the location of the alternative energy system to show energy production, which can be compared to utility bills showing the amount of energy used on the tract. The Department believes that county assessors and landowners are employing flexibility and common sense in demonstrating or confirming compliance with the referenced standard. Going forward, the Department will monitor whether issues arise with respect to the referenced standard, and will revisit this subject and consider establishing formal standards of proof should that become necessary.

§ 137b.13. Agricultural reserve

 Act 88 revised the statutory definition of ''agricultural reserve'' land to include land devoted to the development and operation of an alternative energy system ''if a majority of the energy annually generated is utilized on the tract.'' The final-form rulemaking adds a provision in § 137b.13 that restates the statutory language regarding alternative energy systems and makes the regulation more consistent with the act.

§ 137b.14. Forest reserve

 Act 88 revised the statutory definition of ''forest reserve'' land to include land devoted to the development and operation of an alternative energy system ''if a majority of the energy annually generated is utilized on the tract.'' The final-form rulemaking adds a provision in § 137b.14 that restates the statutory language regarding alternative energy systems and makes the regulation more consistent with the act.

§ 137b.15. Inclusion of farmstead land

 Section 3(a) of the act makes clear that farmstead land on a tract of agricultural use, agricultural reserve or forest reserve land is to be counted toward the total acreage of that tract. The final-form rulemaking adds examples to § 137b.15(a) (relating to inclusion of farmstead land) to illustrate this point and show how this applies consistently among each of the three land use categories: agricultural use, agricultural reserve and forest reserve.

 When former § 137b.15(b) was promulgated in 2001, farmstead land was preferentially assessed without regard to whether it was located on enrolled agricultural use land, agricultural reserve land or forest reserve land. Subsequent amendments of the act, including Act 235, have changed that. Although farmstead land on enrolled agricultural use land continues to automatically receive preferential assessment, there are now only limited circumstances under which farmstead land on enrolled agricultural reserve or forest reserve land can be preferentially assessed. Final-form § 137b.15(c) and (d) describes or identifies these circumstances. This amendment brings the regulation into alignment with the act and provides clear guidance with respect to the circumstances under which farmstead land may/must be preferentially assessed.

§ 137b.51. Assessment procedures

 In its comments regarding proposed amendments to § 137b.51 (relating to assessment procedures), IRRC summarized certain comments offered by the Pennsylvania Farm Bureau (PFB) and requested that this preamble explain how the provisions of the act addressing farmstead land are to be implemented and how the final-form rulemaking is consistent with the act. These comments are addressed as follows and in Comments 30 and 33 as follows.

 Act 235 made significant changes to the assessment of farmstead land on enrolled agricultural reserve or forest reserve land. The amendments to § 137b.51 implement these changes.

 Although farmstead land on enrolled agricultural use land retains preferential assessment, that same preferential assessment does not automatically occur if the farmstead land is located on enrolled agricultural reserve or forest reserve land. The amendments to § 137b.51 address each of the three circumstances under which farmstead land on enrolled agricultural reserve or forest reserve land may be preferentially assessed. In summary, this preferential assessment may only occur when: (1) the county commissioners have adopted an ordinance including farmstead land in the total use value for land in agricultural reserve or forest reserve, or both, in accordance with section 3(g) of the act; (2) a majority of the land in the subject application for preferential assessment is enrolled as agricultural use land in accordance with section 4.2(d)(2)(i) of the act (72 P. S. § 5490.4b(d)(2)(i)); or (3) an application for preferential assessment contains noncontiguous tracts, and a majority of the land on the tract where the farmstead land is located is agricultural use land in accordance with section 4.2(d)(2)(ii) of the act.

 Final-form § 137b.51 also contains a number of examples. These are intended to illustrate how the changes wrought by Act 235 are to be implemented by county assessors. The provisions of the final-form rulemaking regarding farmstead land are entirely consistent with the act.

§ 137b.52. Duration of preferential assessment

 Act 109 added section 8.1 of the act (72 P. S. § 5490.8a)) identifying the circumstances under which land may be removed from preferential assessment by the landowner. Section 137b.52 (relating to duration of preferential assessment) repeats the substance of section 8.1 of the act. The Department's objectives in including this new language are to make the final-form regulation more complete and user-friendly, and to obviate the need for the reader to refer to the act for the information provided in § 137b.52.

§ 137b.53. Calculation and recalculation of preferential assessment

 Section § 137b.53 (relating to calculation and recalculation of preferential assessment) is amended to be more consistent with the act.

 Former § 137b.53 predates Act 235. As described in greater detail in the previous explanation of § 137b.51, Act 235 effectively did away with the across-the-board preferential assessment of farmstead land on agricultural reserve and forest reserve land and prescribed specific circumstances under which this preferential assessment can occur. This necessitates the Department deleting language from § 137b.53 that was rendered inaccurate by Act 235.

 Subsection (g) is added to require the recalculation of preferential assessment of a tract of forest reserve land if: (1) the county assessor calculated the assessment of that tract using a county-specific average timber value provided by the Department; and (2) the landowner provides the county assessor documentation that the actual value of the timber on the subject tract is less than the value that was estimated using the county-specific average timber value. This is discussed in depth in Comment 35 as follows.

§ 137b.72. Direct commercial sales of agriculturally related products and activities; rural enterprises incidental to the operational unit

 Act 190 amended section 8(d)(3) of the act to allow for the direct commercial sale of agriculturally related products on enrolled land without triggering roll-back tax liability if: (1) the sales occur on 1/2 acre or less of land; (2) utilities or new buildings are not required; and (3) the majority of these products are produced on the farm. Section 137b.72 (relating to direct commercial sales of agriculturally related products and activities; rural enterprises incidental to the operational unit) is amended to reflect this statutory change.

§ 137b.73a. Gas, oil and coal bed methane

 In summary, §§ 137b.73a—137b.73d establish a regulatory beachhead addressing specific statutory revisions that have occurred since Chapter 137b was last amended. In each instance it is the intention of the Department to: (1) add the subject matter of each amendment to the regulation so the regulation is more user-friendly and the regulated community does not have to refer to the act to find that subject matter; (2) rephrase or reorganize the subject matter of these amendments to make the regulation more understandable; and (3) add several examples to pre-emptively address questions the Department believes might reasonably arise as these amendments are implemented over time. The Department expects that as county assessors, landowners and the Department gain experience in administering and implementing these statutory amendments, the Department will revisit these regulatory provisions to make refinements and add more examples based on that experience.

 Acts 35 and 88 amended the act to address the impact of gas, oil and coal bed methane exploration and extraction on enrolled land. These amendments also added references to the appurtenant facilities—such as roads, bridges, pipelines, hydrofracturing retention ponds, and the like—that are attendant to this exploration and extraction and the impacts of these structures or activities on preferential assessment and roll-back tax liability. Section 137b.73a restates the substance of these amendments and provides some examples to help landowners, county assessors and owners of gas, oil and coal bed methane rights better understand the impact of these amendments.

 Section 137b.73a restates section 6(c.1)(1)—(4) of the act. The examples in subsection (b) illustrate how important the date of the grant of some/all of the gas and oil extraction rights is to the determination as to whether roll-back tax liability is triggered, and that the grant of something less than 100% of these rights does not alter roll-back tax treatment.

§ 137b.73b. Temporary leases for pipe storage yards

 Section 137b.73b (relating to temporary leases for pipe storage yards) describes the circumstances under which enrolled land may be leased for up to 2 years for pipe storage yards, a use that facilitates coal bed methane extraction. This provision is almost a verbatim restatement of section 6(c.3) of the act that was added by Act 88.

§ 137b.73c. Small noncoal surface mining

 Act 34 amended section 6(c.4) of the act to allow an owner of enrolled land to lease or devote a portion of that land to ''small noncoal surface mining'' in accordance with the Noncoal Surface Mining Conservation and Reclamation Act. Roll-back taxes are due with respect to land devoted to this use, but preferential assessment continues on the remainder. Section 137b.73c restates this statutory change.

§ 137b.73d. Wind power generation systems

 Act 109 amended section 6(c.5) of the act to allow for certain wind power generation systems on enrolled land and to impose adverse roll-back tax consequences that are limited only to the land that is actually devoted to wind power generation purposes. Subsections (a) and (b) restate the statutory language.

 Subsection (c) is added to make clear that a wind power generation system is a Tier I energy source that can be established and operated on enrolled land without triggering adverse roll-back tax consequences if a majority of the energy annually generated is utilized on the enrolled tract on which the wind power generation system is located. Under these circumstances, the land on which the system is located remains, by statutory definition, agricultural use, agricultural reserve or forest reserve land entitled to preferential assessment.

§ 137b.74. Option to accept or forgive roll-back taxes in certain instances

 Amendments to § 137b.74 (relating to option to accept of forgive roll-back taxes in certain instances) correct a provision that is not consistent with the act.

 Section 8(b) of the act affords a taxing district the discretion to decline to accept roll-back taxes if the roll-back tax liability was triggered by a change of use of the enrolled land caused by the granting or donating of some portion of that land to a school district, a municipality, a county, a volunteer fire company, a volunteer ambulance service or a charitable corporation organized under section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C.A. § 501(c)(3)).

 The former regulation only provided a taxing district the discretion to forgive roll-back taxes ''with respect to that portion of the enrolled land that is granted or donated . . .'' In other words, if a landowner had a 50-acre enrolled tract and donated 11 acres to volunteer fire company and roll-back tax liability was triggered with respect to the entire 50-acre tract, the former regulation stated that the taxing district could only forgive roll-back taxes with respect to the 11-acre donated tract, while the act clearly would allow the taxing district to forgive roll-back taxes with respect to the entire 50 acres. The final-form rulemaking corrects that inconsistency.

§ 137b.77. Recreational activities on agricultural use or forest reserve land

 Act 235 added a definition of ''recreational activity'' to the act and section 8(f) of the act clarifies that recreational activity on enrolled agricultural use or forest reserve land does not breach preferential assessment as long as the recreational activity does not prevent the land from being immediately put to agricultural use (if the enrolled land is agricultural use land) or permanently render the land incapable of producing timber (if the enrolled land is forest reserve land). It also specifies that this is the case regardless of whether a fee or charge is attached to the recreational activity. Section 137b.77 (relating to recreational activities on agricultural use or forest reserve land) restates the statutory language. As is the case with many of the amendments previously described, the Department's objective is to include the subject matter of this section to make the regulation more complete and user-friendly.

§ 137b.81. General

 In its comments with respect to proposed § 137b.81 (relating to general), IRRC summarized certain comments offered by the PFB, agreed with the commentator and offered that the proposed addition of ''in accordance with applicable sections of the act'' creates confusion. In response, the Department deleted this phrase from the final-form rulemaking.

 IRRC also asked that this preamble present the reason the Department is adding other language to this section, and an explanation of whether the new language is consistent with the act and in the public interest. IRRC's concerns are addressed in Comments 56 and 57 as follows.

 The Department added language to § 137b.81 to make clear that the transfer of the land enrolled under a single application for preferential assessment does not, by itself, trigger roll-back tax liability or end preferential assessment. Should the successor landowner change the use of the land to something other than agricultural use, agricultural reserve or forest reserve, though, that successor landowner is liable for roll-back taxes triggered by that change of use.

 The language added to § 137b.81 originates in section 6(a.3) of the act, and makes the regulation more consistent with the act. In addition, the Department has encountered several instances when a tract of enrolled land was transferred to a person (such as a developer) whose long-term intention was to convert the land to some use other than agricultural use, agricultural reserve or forest reserve. The new language helps make clear that the transfer does not trigger roll-back tax liability or impact preferential assessment, or both, but that a subsequent change of use would.

§ 137b.82. Split-off tract

 The addition of language to § 137b.82 (relating to split-off tract) affirmatively limits the total amount of acreage that can be split-off without triggering roll-back tax liability on the entire enrolled tract to the lesser of 10% or 10 acres of the enrolled tract.

 The final-form rulemaking also reminds landowners to engage with the county assessor in advance of a planned split-off to determine the extent to which the split-off would be allowed without triggering adverse roll-back tax consequences with respect to the entire enrolled tract. This is particularly important when an enrolled tract has been separated into several tracts since it was originally enrolled or when there have been previous split-offs with respect to the enrolled tract. This reporting requirement is prescribed by section 4(c) of the act.

 An example is added to § 137b.82. This example was driven by a comment from Senator Gene Yaw, a prime sponsor of Act 88, who offered language to emphasize that if an owner of land that is enrolled and receiving preferential tax assessment splits-off a portion of that enrolled land, and that split-off complies with the requirements in section 6(a.1)(1)(i) of the act, then roll-back taxes are only due with respect to the split-off portion of the enrolled land, and not with respect to the entire tract of enrolled land. As detailed in Comment 60 as follows, Senator Yaw acknowledges that Act 88 was driven, in part, by a 2009 Commonwealth Court decision which suggested there was some ambiguity on this point.

§ 137b.87. Change in use of separated land occurring within 7 years of separation

 The Department proposed to delete the last sentence of § 137b.87 (relating to change in use of separated land occurring within 7 years of separation). However, this amendment has been withdrawn. This is in response to a comment offered by the PFB and discussed in Comment 63 as follows.

§ 137b.89. Calculation of roll-back taxes

 Section 137b.89 (relating to calculation of roll-back taxes) is amended to delete language in an example stating that, in calculating roll-back taxes with respect to the current tax year, a county assessor should prorate those taxes. This was an erroneous statement, and this error was noted by the Commonwealth Court in its 2002 opinion in Moyer vs. Berks County Board of Assessment Appeals (803 A.2d 833). In Moyer, the Commonwealth Court found that it could not conclude the act was intended to allow the proration of roll-back taxes to one moment in the year of the breach.

§ 137b.112. Submission of information to the Department

 Act 235 added section 5(a)(5) of the act (72 P. S. § 5490.5(a)(5)) detailing specific types of information a county assessor is required to report to the Department by January 31 each year. This information relates to acreage enrolled in each land use category, acreage enrolled in the previous year, acreage with respect to which preferential assessment was terminated within the previous year and the roll-back taxes and interest received in the previous year.

 Section 137b.112 (relating to submission of information to the Department) is amended to include specific references to these statutory requirements. The amendment provides a county assessor a clearer idea of the exact information that must be compiled and the date by which it must be submitted to the Department.

Comments

 Notice of proposed rulemaking was published at 43 Pa.B. 4344 (August 3, 2013), affording the public, the General Assembly and IRRC the opportunity to offer comments.

 Comments were received from IRRC, Senator Gene Yaw, the County Commissioners Association of Pennsylvania (CCAP), the PFB, the Lancaster County Assessment Office, the Sullivan County Assessment Office, the Tioga County Assessment Office (TCAO) and others. Although several commentators submitted their comments after the close of the public comment period, the Department elects to treat these late comments as if they were timely. The comments and the Department's responses follow.

 Comment 1: A commentator offered that the preamble to the proposed rulemaking addressed the expected impact of the regulations on the private sector, and recom-mended that language also ''. . . recognize the tax relief of enrolled properties is a burden shifted to those properties not eligible or enrolled into the program.'' The commentator asked what cumulative fiscal impact the act will have on properties that are not enrolled and receiving a preferential assessment, and asked what percentage of the tax burden is borne by properties that are not enrolled and receiving a preferential assessment.

 Response: The Department disagrees with the commentator's premise that the preferential assessment of enrolled land shifts the tax burden so that properties that are not enrolled are somehow subsidizing those that are enrolled. The opposite is generally the case, even with respect to preferentially assessed land.

 In its research paper ''Fiscal Impacts of Different Land Uses—The Pennsylvania Experience in 2006,'' the Pennsylvania State University (PSU) researchers studied a sample of townships in this Commonwealth. The researchers noted that:

The overall fiscal impact of a land use depends on both its revenue and its expenditure impacts. A land use may generate a lot of revenue for the local government, for example, but if the services it requires cost the municipality and school district even more, it will end up costing local taxpayers. . .

 The PSU researchers found that ''. . . residential land on average contributed less to the local municipality and school district than it required back in expenditures.'' By contrast, the study found that farm and open space land received a return in dollar-value-of-services of between 2¢ and 27¢ for every dollar of tax revenue it provided, supporting the PSU researchers' conclusion that:

. . . residential land generally costs taxpayers, while commercial, industrial, farm and open space lands help taxpayers by paying more than they require back in services. These results are consistent with other states' experiences and with other Cost of Community Service studies from across the country, including twelve similar studies conducted in Pennsylvania in the 1990s. . .

 The Department agrees with the PSU researchers' conclusion with respect to enrolled land, which noted:

Some farmland protection programs, such as Clean and Green, reduce the amount of real estate tax paid by farmers. This lessens the revenue that farmland contributes to the school district and municipality. The results in several townships, that had land enrolled in Clean and Green, demonstrates that even when these programs are in use in a township, farmland still contributes more than it requires. Even with preferential assessments, farmland ends up subsidizing the educational costs of residential land and plays a positive economic role in the community.

 This preamble contains additional information on the expected impacts of the final-form rulemaking.

 Comment 2: A commentator recommended that § 137b.1 (relating to purpose) be amended by adding an additional sentence at the end of subsection (b). The sentence was originally included in the proposed rulemaking published at 30 Pa.B. 4573 (September 2, 2000) proposing to add Chapter 137b, which stated ''[t]he intent of the act is to protect the owner of enrolled land from being forced to go out of agriculture, or sell part of the land to pay taxes.''

 The commentator suggested the addition of this sentence would be more in-line with the original intent of the act. The commentator also offered examples and argu-ment in support of his assertion that every application for preferential assessment should be evaluated by a committee of farmers to determine whether granting preferential assessment would serve an agricultural purpose.

 The commentator also recommended that there be coordination with conservation easement programs to identify and preserve parcels deemed valuable to the public.

 Response: Section 137b.1(a) essentially restates the long title of the act, which provides a general overview of the legislative intent and which does not reference preventing an owner of enrolled land from going out of agriculture or having to sell enrolled land. The Department believes the general statement as to the purpose of the act accurately describes the stated intent of the General Assembly.

 In addition, the act does not provide for a review committee as suggested by the commentator.

 The commentator's suggestion that there be coordination with agricultural conservation easement programs to preserve valuable parcels is already in practice to the extent that, in addition to affording preferential assessments in accordance with the act, at least 57 counties participate in the agricultural conservation easement purchase program established under the Agricultural Area Security Law (3 P. S. §§ 901—915). Owners of agricultural land can apply to sell an agricultural conservation easement that restricts the use of the subject land to agricultural production in perpetuity. Applications are subjected to a competitive review process and are ranked according to factors such as soil quality, acreage, location, development pressure and other factors the participating county identifies.

 Commonwealth laws work together in different ways to protect normal agricultural operations, preserve land for agricultural production and preserve forest land. Of these statutory protections, the preferential tax assessments afforded under the act provide the broadest-based protection by lessening a landowner's incentive to convert agricultural use, agricultural reserve or forest reserve land to some other use. The greatest statutory protection is afforded by perpetual agricultural conservation easements such as those described in the preceding paragraph. The Agricultural Area Security Law also establishes a process by which local government units can establish ''agricultural security areas'' that afford enrolled farmers limited protections against government ordinances and nuisance suits. This statute requires that certain proposed eminent domain takings of farmland be reviewed and approved by the Agricultural Lands Condemnation Approval Board, an independent board, before a declaration of taking can be filed. In addition, ''normal agricultural operations'' receive certain protections from local ordinances and nuisance suits under 3 Pa.C.S. §§ 313—318 (relating to normal agricultural operations) and the act of June 10, 1982 (P. L. 454, No. 133) (3 P. S. §§ 951—957), known as the Right-to-Farm Law. In summary, the Commonwealth takes a multiple-front approach to protecting farmland, forest land, open space and normal agricultural operations.

 Comment 3: IRRC and another commentator noted that the proposed definitions of ''agricultural reserve'' and ''agricultural use'' in § 137b.2 (relating to definitions) contain language addressing alternative energy systems where ''a majority of the energy annually generated is utilized on the tract.''

 The commentators requested the Department explain how this provision will be implemented and monitored.

 A commentator asked what the penalty will be for not reporting energy use, what the penalty would be for not administering this energy use provision and whether the alternative energy system will ultimately have to be removed if ''efficiencies decrease over time.''

 Response: An owner of enrolled land upon which an alternative energy system is located has the burden to demonstrate that a majority of the energy annually generated is utilized on the tract. This has been the case since 2010, and in the ensuing 4 years the Department has not encountered a single instance when a landowner or a county assessor were not able to resolve to their mutual satisfaction whether this standard has been met.

 At this point, the Department does not believe it is necessary to attempt to establish specific standards of proof that must be met for a landowner to demonstrate that a majority of the energy annually generated from an alternative energy system is utilized on the same enrolled tract where that system is located. In some instances compliance with this standard will be self-apparent, such as where the lines carrying the energy do not connect to lines that extend off the tract. In some instances the utility bills received by the landowner may contain adequate information to discern the amount of energy generated on a tract and the amount of energy consumed on that same tract. In other instances there may be records or readouts that are generated or available at the location of the alternative energy system to show energy production, which can be compared to utility bills showing the amount of energy used on the tract. The Department's experience in administering this provision suggests that county assessors and landowners are employing flexibility and common sense in demonstrating or confirming compliance with the referenced standard. Going forward, the Department will monitor whether issues arise with respect to the referenced standard, and will revisit this subject and consider establishing formal standards of proof should that become necessary.

 With respect to the comment asking what penalties would apply if a landowner fails to demonstrate that a majority of the energy annually generated is utilized on the tract, the Department believes a county assessor might pursue a civil penalty under section 5.2 of the act (72 P. S. § 5490.5b) against a person. If the landowner cannot ultimately demonstrate that a majority of the energy annually generated from an alternative energy system is utilized on the same enrolled tract where that system is located, then the land would be subject to roll-back taxes in accordance with section 5.1 of the act (72 P. S. § 5490.5a).

 The commentator's inquiry as to whether the energy generating efficiency of the alternative energy system has impact on whether land on which the system is located can be agricultural use, agricultural reserve or forest reserve land must be answered in the negative. The act does not require any particular efficiency level or generating capacity from a system, only that a majority of the energy annually generated from that system be used on the tract where the system is located.

 Comment 4: In a question that appears to relate to the definition of ''agricultural reserve'' in § 137b.2, a commentator asked whether it was possible for a condominium or townhome development that has a large common area to enroll that common area as agricultural reserve land.

 Response: In general, land that meets the statutory definition of ''agricultural use,'' ''agricultural reserve'' or ''forest reserve'' is eligible for preferential assessment. The determination as to whether a tract qualifies for preferential assessment focuses on the land, rather than the identity of the landowner. It is possible a condominium/townhome developer might own a tract of enrolled land.

 Comment 5: IRRC reviewed the definition of ''agritainment'' in § 137b.2 and recommended that hay mazes be added to the examples presented in that definition. ''Agritainment'' is defined in the act and identifies hay mazes as an example of an agritainment activity.

 Response: The recommended change has been made in the final-form rulemaking.

 Comment 6: A commentator reviewed the definition of ''agritainment'' in § 137b.2 and asked whether this term relates to seasonal activities only. The commentator asked whether the term would include a year-round amusement park facility.

 The commentator expressed concern over how parking facilities, additional buildings and similar uses related to an agritainment activity would be treated.

 The commentator also asked whether there is some limit on the amount of enrolled land that can be used for agritainment.

 In addition, the commentator noted that the proposed definition of ''outdoor recreation'' contains several examples and a cross-reference to § 137b.64 (relating to agricultural reserve land to be open to the public). The commentator asked ''[i]f public access can be granted for profit at specific events, why would it not be possible to permit access at all times.''

 Response: The definition of ''agritainment'' is substantively identical to the statutory definition. Agritainment is listed among the activities that constitute a recreational activity in that same section. Recreational activities may occur on enrolled agricultural use or forest reserve land without triggering roll-back tax liability as long as they do not render the land incapable of being immediately converted to agricultural use (on agricultural use land) or permanently render the land incapable of producing timber or other wood products (on forest reserve land). This is prescribed by section 8(f) of the act.

 Agritainment may be a year-round activity as long as it meets the statutory requirements summarized in the preceding paragraph.

 With respect to agritainment related parking facilities, additional buildings, and the like, these are allowed only to the extent they do not violate the act as previously described.

 There are no limits to the amounts or percentages of enrolled agricultural use or forest reserve acreage that may be used for agritainment.

 With respect to the commentator's inquiry as to the reason agricultural use and forest reserve land is not open to the public without charge, the Department offers that the act clearly requires this free public access only with respect to agricultural reserve land. The act defines ''agricultural reserve'' land as being open to the public ''. . . for outdoor recreation or the enjoyment of scenic or natural beauty and open to the public for such use, without charge or fee, on a nondiscriminatory basis.'' By contrast, in describing the preferential assessment of agricultural use and forest reserve land, section 8(f) of the act allows a fee to be imposed for recreational activities that occur on these categories of enrolled land.

 Comment 7: The PFB noted a typographical error in the proposed definition of ''change of use'' in § 137b.2. The commentator noted that ''subdivide'' should be ''subdivided.''

 Response: The Department agrees with the commentator and made this correction in the final-form rulemaking.

 Comment 8: An individual commentator (an owner of multiple tracts of enrolled land) reviewed the definitions of ''change of use'' and ''division by conveyance or other action of owner'' in proposed § 137b.2 and asked:

What is meant when it stated: ''the term does not include (A) The act of subdividing enrolled land if the subdivided land is not sold and (B) The act of conveying subdivided enrolled land to the same landowner who owned it immediately prior to subdivision?''

Please make clear whether or not the act of recording a subdivision map, without selling any property, would require the assessment office to be given a 30 day notice.

 Response: Subparagraph (ii)(A) and (B) of the definition of ''change of use'' reflects actual events the Department has encountered in administering the act over the years.

 In at least one instance, an owner of enrolled land subdivided that land into smaller lots and the county assessor threatened adverse roll-back tax consequences even though the landowner did not change the use of the land or sell any of the subdivided lots. Subparagraph (ii)(A) clarifies that subdivision does not, by itself, constitute a change of use.

 In another instance, a landowner subdivided a tract of enrolled land and then conveyed each of the newly-subdivided tracts to himself without changing the use of the land. This subdivision and transfer were done as part of a plan to transition ownership and operation of a farm to the landowner's sons. Subparagraph (ii)(B) clarifies that subdivision and transfer of subdivided land do not, by themselves, constitute a change of use.

 Although the Department has not yet encountered the situation in proposed subparagraph (ii)(C), this provision sought to emphasize that it is the actual change of use to something other than agricultural use, agricultural reserve or forest reserve—and not the division of land by subdivision, the sale of parcels created through subdivision or the ultimate intention of the landowner with respect to the use of the enrolled land—that constitutes change of use. As discussed in the Department's response to Comment 10, the Department has elected to delete subparagraph (ii)(C) from the definitions of ''change of use'' and ''division by conveyance or other action of the owner'' in the final-form rulemaking.

 In response to the commentator's question regarding whether it would be necessary to provide a county assessor 30 days' advance notice of the recording of a subdivision map, the Department offers that this notice is required. This advance notice requirement is imposed by section 4(c) and (c.1) of the act, and requires that notice be provided with respect to ''any type of division'' of the enrolled land.

 Comment 9: The PFB and IRRC reviewed the proposed definition of ''change of use'' in § 137b.2 and expressed concern that the use of ''sold'' in subparagraph (ii)(A) is too narrow and would not include conveyances other than sales. The PFB noted:

When read literally, physical conveyances of subdivided parcels other than sales would not fall within the exception of a change in use. We do not believe the intended effect of this exception was to distinguish between conveyances made pursuant to sale and conveyances made through gift or other non-sale transaction by the landowner.

 Both commentators noted that similar language is in the proposed definition of ''division by conveyance or other action of the owner.'' In addition, IRRC asked for an explanation of how these provisions are to be implemented.

 The PFB also offered its appreciation of the Department's effort to clarify that actions by landowners to file plans for subdivision or to issue deeds for subdivision of enrolled lands under a subdivision plan approval are not events that trigger roll-back taxes or cause termination of preferential assessment. Although these events are administrative changes they are not changes in the use of the land.

 Response: The Department agrees with the commentators, and amended the definitions of ''change of use'' and ''division by conveyance or other action of the owner'' in the final-form rulemaking to consistently use the broader word ''conveyed'' in place of the narrower word ''sold.''

 IRRC also asked for an explanation of how these terms will be administered. Section 137b.63 (relating to notice of change of application) requires an owner of enrolled land to provide a county assessor at least 30 days' advance written notice of a change of use or of activities that constitute a division of enrolled land. This provides the county assessor an opportunity to evaluate the proposed change or activity to determine whether roll-back tax liability is triggered.

 Comment 10: The PFB and IRRC expressed concern with the proposed definition of ''change of use.'' They stated that the qualifying phrase ''as long as the land continues in an eligible use'' in subparagraph (ii)(C) was confusing. The PFB recommended an amendment to make clear that ''. . . the exception applies to any conveyance of enrolled land, notwithstanding any 'change in use' by the grantee subsequent to conveyance.'' The PFB also recommended this exception more clearly identify the type of land with respect to which this exception would apply.

 Both commentators noted that similar language is in the proposed definition of ''division by conveyance or other action of the owner.'' In addition, IRRC asked for an explanation of how these provisions are to be implemented.

 Response: The Department accepts the commentators' position that subparagraph (ii)(C) in the definitions of ''change of use'' and ''division by conveyance or other action of the owner'' is confusing, and deleted it from these definitions in the final-form rulemaking.

 In response to IRRC's request for an explanation of how these provisions will be implemented, the Department expects that these definitions will be referred to by county assessors and landowners and will clarify that, when used in the act or its attendant regulation these terms refer to actual changes in the physical use to which the enrolled land is being put.

 Comment 11: A commentator raised several questions with respect to the proposed definition of ''compost'' in § 137b.2.

 The commentator asked who is charged with determining whether compost is comprised of ''at least 50% by volume'' of products commonly produced on farms, and how this would be determined.

 The commentator noted that the proposed definition ''. . . seems to imply that 50% can be transported onto the site'' and asked: ''Does this make this a transfer station? (An unpermitted dump?) How do you control this type of activity?''

 Response: The referenced definition is statutory, and was added to the act by Act 190.

 The Department shares some of the commentator's concerns with respect to how the 50% by volume standard will be monitored and enforced. These concerns are allayed to some extent by three considerations.

 First, the Department expects that, in practice, the 50% by volume standard established in the act will prove to be something of a low bar and that in the typical case the substantial majority of the component parts of mulch will be comprised of products commonly produced on farms.

 Second, the Department has some experience with similar 50% component part standards in other statutes it administers. For example, section 3 of the Agricultural Area Security Law (3 P. S. § 903) requires that at least 50% of certain products be produced by the farm operator to be considered agricultural production and section 3(b) of the Right-to-Farm Law (3 P. S. § 953(b)) requires that at least 50% of the commodities sold at an on-farm market be produced by the landowner for that farm market to receive the protections of the Right-to-Farm Law. In each of these instances there are not regulations clarifying how these standards are to be applied, yet common-sense has ruled the day and there have been rather few problems administering these standards.

 Third, the Department's experience has been that county assessors have, as a group, been reasonable in performing their responsibilities under the act and that owners of enrolled land have been diligent in providing county assessors answers and information when questions arise. The Department has reason to believe this will continue with respect to the new 50% by volume standard referenced by the commentator.

 The Department will remain mindful of the commentator's concerns. If the need for clarification becomes apparent as the Department gains experience in administering this provision, it will consider revisiting this provision and providing regulatory guidance.

 As to the commentator's question regarding whether a compost operation would be a transfer station or unpermitted dump, the Department can only offer that within the four corners of the act the production of compost is the production of an agricultural commodity.

 Comment 12: The PFB reviewed the definition of ''division by conveyance or other action of the owner'' in proposed § 137b.2, noted the similarities in language between that definition and the proposed definition of ''change in use'' and recommended the Department implement the same changes to subparagraph (ii)(A) and (C) of that definition that the PFB recommended in Comments 9 and 10. IRRC also noted the common language between these two defined terms.

 Response: The Department refers to the responses to Comments 9 and 10, and has made the same changes to the definition of ''division by conveyance or other action of the owner'' in the final-form rulemaking that it has made to the definition of ''change of use.''

 Comment 13: A commentator offered a number of observations and questions regarding the definition of ''forest reserve'' in proposed § 137b.2.

 The commentator noted the phrase ''stocked by forest trees'' in that definition, and recommended that a timber management plan be required of a person enrolling forest reserve land for preferential assessment, and that a minimum value of timber be established.

 The commentator asked for definitions of the following words or terms that are used in the referenced definition: ''stocked,'' ''forest trees,'' ''timber'' and ''wood products.'' With respect to ''stocked,'' the commentator asked whether this means the trees must have been placed by human activity.

 The commentator presented the following:

Forest reserve is a category that can be and is abused. In my discussion with forestry industry representatives, I was told that they would not be interested in harvesting a parcel of less than 12 acres and only if it contained almost 100% hardwood. What is the ''intent'' of this law?

What species qualify? (I would suggest a list) I would suggest a requirement of a forest management program and on-going management. And a written harvest plan.

With the inevitable decimation of our timber industry by the Ash Borer, (projected to be within 20 years) the value of this protected category will be greatly diminished. Re-evaluation and re-categorization should be on-going in regards to forest reserve status.

 Response: Although the Department declines to strictly require that a timber management plan be provided to the county assessor by a person seeking to enroll land as forest reserve land, it acknowledges that this type of plan is good evidence of the quantity and timber types on a given tract. Since the county assessors have typically been receptive to various other forms of proof of quantity and timber types the Department is reluctant to impose the expense of a regulatory requirement that a timber management plan be produced with respect to each tract of forest reserve land.

 In its administration of the act the Department has not perceived there to be confusion over the meaning of the statutory terms ''forest trees'' and ''timber.'' For this reason, the Department declines to implement the commentator's suggestion that these terms be defined.

 With respect to ''stocked,'' the Department notes that this word appears in the statutory definitions of ''forest reserve'' and ''woodlot.'' Forest reserve land must be ''. . . stocked by forest trees of any size and capable of producing . . . wood products'' and a woodlot must be ''. . . stocked by trees of any size and contiguous to or part of land in agricultural use or agricultural reserve.'' The Department does not believe that for land to be ''stocked by trees'' the trees must have been established on the land by the hand of man, or that it is necessary to define ''stocked'' to make this clear. In general, stock is the supply of goods available on the premises and the premises are stocked if goods are present on those premises. In the context of timber production, trees are the stock and a tract is stocked with trees if they are present on the tract.

 Comment 14: A commentator referenced the proposed definition of ''forest reserve'' in § 137b.2 and asked why the public is not entitled to use land that is enrolled under this land use category for outdoor recreation when public use can be made of land that is enrolled under the agricultural reserve land use category. The commentator added ''[i]t is understandable to restrict access during harvesting of timber. However, given the fact that this activity occurs in cycles in excess of 20 years, it is unreasonable to restrict public access during a majority of the time it takes to grow a timber crop.''

 Response: Although the commentator's point is well taken, the answer to the question presented is that among the three land use categories, section 2 of the act only requires that agricultural reserve land (and not agricultural use or forest reserve land) be open to the public for outdoor recreation or the enjoyment of scenic or natural beauty. The Department does not have authority to extend this requirement to other land use categories by regulation.

 Comment 15: A commentator noted the proposed amendment to the definition of ''forest reserve'' in § 137b.2 regarding alternative energy systems and the use of energy from those systems and asked:

. . . how energy use will be monitored, who will monitor this energy use, what the penalty will be for not reporting energy use, what the penalty would be for not administering this energy use provision, how it will be determined if ''a majority'' of the energy is being used on the tract and whether the system will ultimately have to be removed if ''efficiencies decrease over time.''

 Response: The Department's response to Comment 3 addresses the commentator's questions.

 Comment 16: The PFB and IRRC offered comments with respect to the proposed definition of ''outdoor recreation'' in § 137b.2.

 In summary, the PFB offers that the type of activities that fall within the definition of ''outdoor recreation'' should be at least as broad or inclusive as the activities identified in the definition of ''recreational activity.'' The PFB recommends that the definition be amended to make clear that ''outdoor recreation'' activities are at least a complete subset of ''recreational activities.''

 IRRC asks whether it is the intent of the Department for the definitions of ''outdoor recreation'' and ''recreational activity'' to be consistent with each other. If so, IRRC recommends that the definition of ''outdoor recreation'' be amended to track with the definition of ''recreational activity'' or that the definition of ''outdoor recreation'' be amended to include a specific reference to ''recreational activity.''

 Response: The Department believes the act makes clear that outdoor recreation and recreational activity are two different things, does not believe the General Assembly intended these terms to be interchangeable or related, and does not believe the final-form rulemaking needs to merge or reconcile these terms.

 In summary, the statutory references to outdoor recreation pertain only to agricultural reserve land and the references to recreational activity pertain only to agricultural use land and forest reserve land. The term ''outdoor recreation'' is used only once in the act in the definition of ''agricultural reserve.'' By statutory definition, agricultural reserve land may be used for outdoor recreation. The only uses of the term ''recreational activity'' in the act in sections 3(f) and 8(f) pertain to agricultural use or forest reserve land.

 Comment 17: A commentator offered that the definition of ''outdoor recreation'' in proposed § 137b.2 does not address situations that might relate to the Americans with Disabilities Act and recommended the Department consider incorporating language from the Game Commission's Hunting & Trapping Digest.

 Response: The Department does not believe that enrolled land would constitute a place of public accommodation with respect to which the requirements of the Americans with Disabilities Act would be applicable. For this reason, the Department declines to implement this recommendation in the final-form rulemaking.

 Comment 18: In a comment regarding the definition of ''roll-back tax'' in proposed § 137b.2, a commentator observed that the 7-year period with respect to which roll-back taxes are assessed is ''not enough to stop a determined developer'' and recommended that this 7-year period be extended.

 Response: The Department cannot implement the commentator's recommendation. The statutory definition of ''roll-back tax'' establishes the 7-year period referenced by the commentator, and the Department does not have the discretion to change this by regulation. A statutory amendment would be required to implement the commentator's suggestion.

 Comment 19: The PFB reviewed the proposed definition of ''silvicultural products'' in § 137b.2 and recommended that language be added to make clear that cut trees marketed for ornamental purposes (that is, Christmas trees) are silvicultural products.

 Response: The Department does not believe the recommended amendment is necessary. The definition achieves the commentator's objective by specifically including ''trees and tree products produced from Christmas tree farms.''

 Comment 20: With respect to the definition of ''silvicultural products'' in § 137b.2, the PFB noted that ''silvicultural products'' is but one of the types of products that comprise agricultural commodities under section 2 of the act. The PFB noted that none of these other types of products (agricultural, apicultural, aquacultural, horticultural, floricultural, viticultural and dairy) are defined in the regulation. The commentator recommended that language be added to the definition to ''more explicitly recognize that the action taken to include and define is not intended to exclude land used for production of other ornamental products from enrollment in clean and green.''

 Response: The Department does not believe it is necessary to add the language suggested by the commentator given the broad range of products that constitute agricultural commodities under the act. As the commentator relates, ''agricultural, apicultural, aquacultural, horticultural, floricultural, silvicultural, viticultural and dairy products'' are included in the definition of ''agricultural commodity'' in section 2 of the act. The Department believes this presents a broad range of products that the definition of ''silvicultural products'' in § 137b.2 could not reasonably be construed as limiting or restricting other agricultural products, including ornamental plants, from being considered agricultural commodities.

 The Department is adding this definition to address situations when owners of forest reserve land have argued that their enrolled land should be considered agricultural use land when timber is actually being harvested from that land, and that county assessors should reassess that land as agricultural use land when that timber harvesting is occurring. The definition establishes a distinction between actively-cultivated tree farms and raw forest land. The former involves the production of agricultural commodity that makes the land on which that production occurs agricultural use land, while the latter should be assessed as forest reserve land without regard to whether timber harvesting is underway.

 Comment 21: The PFB's third comment on the proposed definition of ''silvicultural products'' in § 137b.2 is prospective in nature. The PFB recommends that:

. . . any further attempt in final rulemaking to clarify by definition the type of ornamental tree, shrub and plant products whose land would qualify for enrollment in clean and green more explicitly recognize that the production of ornamental shrubs, plants or flowers intended to be marketed in cut or partial form falls within the scope of ''agricultural use,'' as would production of those intended to be marketed in live form.

 Response: The Department has not undertaken the clarification recommended by the commentator. As referenced in its response to the preceding comment, the Department only pursued the definition of ''silvicultural products'' in the final-form rulemaking to address a specific problem it has encountered in administering the act. The Department is reluctant to venture further into defining the agricultural, apicultural, aquacultural, horticultural, floricultural, silvicultural, viticultural and dairy products referenced in the statutory definition of ''agricultural commodity.'' The Department believes it is self-apparent that the ornamental trees, shrubs and plant products referenced by the commentator would be considered agricultural commodities under this broad and inclusive statutory language.

 Comment 22: A commentator reviewed proposed § 137b.3 (relating to responsibilities of the Department) and asked:

In General, What are the consequences/penalties associated with failure to report or administer this law in part or in its entirety? Or administer it correctly, or completely, without prejudice or selective enforcement? If a violation is reported, what action is required? Can an assessor choose to ignore a violation? Can a solicitor choose to not pursue the violation? Can the county manage or commissioners over ride either the Assessor or the Solicitor?

 Response: A violation of the reporting requirements in the regulation can result in the county board for assessment appeals imposing a civil penalty of not more than $100 per violation. This is prescribed by section 5.2 of the act.

 The act does not prescribe a civil penalty or other adverse consequence for an entity that fails to administer the act correctly or under the circumstances related in the commentator's remaining questions.

 Without regard to formal financial penalties as referenced by the commentator, a county has a financial interest in administering the act and its attendant regulations correctly because that activity tends to: (1) maximize the tax revenue a county assessor may lawfully collect under the act; and (2) avoid costs of assessment appeals and litigation.

 In the review of proposed § 137b.3 prompted by this comment, the Department reconsidered the need for the sentence it proposed to add to subsection (b) and deleted it from the final-form rulemaking.

 Comment 23: Regarding § 137b.3 and the responsibilities of the Department under the act, a commentator recommended that the Department establish a centralized, easily accessible record of tracts that are receiving preferential assessment as agricultural reserve land. The commentator noted that he has difficulty retrieving this information from individual counties.

 Response: The Department declines to implement this recommendation. Section 137b.3 restates the responsibilities imposed on the Department under section 4.1 of the act (72 P. S. § 5490.4a) and the Department does not have the discretion to expand these responsibilities to the extent suggested by the commentator.

 Comment 24: A commentator reviewed proposed § 137b.12, noted that land can be considered in agricultural use if it has an anticipated yearly gross income of at least $2,000 from the production of an agricultural commodity and raised several comments on this subject.

 The commentator observed that this $2,000 minimum figure was established in 1985 and that if this $2,000 amount was adjusted for inflation, the ''. . . U.S. Inflation Calculator now converts the amount to $4,341.03 in 2013 dollars.''

 The commentator also offered that since agricultural production is affected by certain factors (such as disease and weather) that may be completely outside of the producer's control, the reference to this income requirement should be deleted. At a minimum, the commentator suggested that income be averaged over a number of years to show compliance with this minimum production requirement.

 The commentator also asked ''. . . what are the reporting requirements and penalties applied for non-compliance.''

 Response: The commentator makes a fair point. The referenced $2,000 production requirement has not changed in many years, and has become a rather low threshold for determining whether land is in agricultural use. By contrast, section 2 of the Right-to-Farm Law (3 P. S. § 952) defines a ''normal agricultural operation'' as being at least 10 contiguous acres or having ''an anticipated yearly gross income from agricultural production of at least $10,000.''

 The $2,000 figure referenced by the commentator is established in section 3(a)(1) of the act. The Department does not have the discretion to change this dollar figure by regulation.

 With respect to the commentator's question regarding applicable reporting requirements, § 137b.62 (relating to enrolled ''agricultural use'' land of less than 10 contiguous acres) describes the process by which a county assessor may obtain confirmation of gross income from the production of agricultural commodities.

 With respect to the commentator's question regarding penalties for noncompliance, a violation of the reporting requirements in the regulation can result in the county board for assessment appeals imposing a civil penalty of not more than $100 per violation. This is prescribed by section 5.2 of the act. Also, if the use of the land changes to something other than an eligible use, the adverse roll-back tax consequences in section 5.1 of the act might apply.

 Comment 25: IRRC reviewed proposed § 137b.12 and noted that Example 1 includes the following sentence: ''The horses are occasionally pastured, bred and sold.'' IRRC offered that the use of ''occasionally'' makes the example unclear and difficult to administer in a consistent manner. IRRC recommended that the example be deleted and replaced with a more definitive threshold.

 Response: The Department accepts IRRC's recommendation, and amended the referenced example to delete ''occasionally.''

 The objective of the example is to make clear that the commercial production of horses on a tract of greater than 10 acres is enough, by itself, to make that acreage agricultural use land. The requirement that there be an anticipated yearly gross income of at least $2,000 from this activity would not apply since the commercial production of horses was occurring on greater than 10 acres.

 Comment 26: The PFB objected to Example 4 in proposed § 137b.12, offering that horse boarding should be considered to be agricultural production and that land upon which only horse boarding occurs should be considered land that is in agricultural use. Two other individual commentators offered the same argument. The PFB makes the following point:

We do not see the role and function of the horse boarding operator as materially different from the role and function of persons commercially engaged in ''contract'' production of livestock or poultry. The ''contract'' livestock or poultry grower is not the owner of the animals he or she is raising and maintaining, and compensation provided pursuant to the ''contract'' is for the performance of raising and maintenance activities upon livestock and poultry.

 All three commentators strongly encouraged the Department to rethink its position on this example.

 Response: The Department finds the commentators' arguments persuasive, and amended the referenced example to reflect that land used for horse boarding is in agricultural use.

 Comment 27: As part of its review of proposed § 137b.12, the PFB offered the following in support of proposed Example 8:

Farm Bureau commends and supports the analysis and conclusion stated in Example 8. The Act establishes a clear statutory theme that matters of interpretation and application of the Act and its legislative purposes should focus on the entire area of enrolled land utilized by the landowner, rather than the individual components of parceled land that may exist under separately created deeds or other legal documents. The example correctly concludes that land used for Tier I generation by a ''multi-parceled'' farm operation should retain preferential status as ''agricultural use'' if the majority of the energy generated is used by any ''parcel'' of that farm operation, regardless of whether the ''parcel'' of the farm where the energy is used may differ from the ''parcel'' of the farm where the energy is generated.

 Response: The Department appreciates the comment, and agrees with the commentator on these points.

 Comment 28: The PFB reviewed proposed § 137b.13 and recommended the Department add examples as it has done in § 137b.12. In particular, the commentator suggested inclusion of an example that incorporates the spirit and intended effect of continuation of preferential assessment captured in Example 8 in § 137b.12. The PFB's comment with respect to that particular example appears in Comment 27.

 Response: The Department accepts the commentator's recommendation and § 137b.13 now contains the requested examples.

 Comment 29: The PFB reviewed proposed § 137b.14 and offered essentially the same comment it offered with respect to § 137b.13. (See Comment 28.)

 Response: The Department accepts the commentator's recommendation and final-form § 137b.14 contains the requested examples.

 Comment 30: The PFB expressed concern with respect to a provision of proposed § 137b.15. The commentator thought that subsection (b) might be read as effectively prohibiting the preferential assessment of farmstead land on agricultural reserve of forest reserve land unless the county commissioners first adopted an ordinance to allow that inclusion.

 The commentator noted that there are three different circumstances under which farmstead land on agricultural reserve or forest reserve land might be preferentially assessed, and that these circumstances are presented in proposed § 137b.51(g). These include situations when the referenced ordinance is in place, when the majority of the land in the subject application for preferential assessment is agricultural use land or when noncontiguous tracts are enrolled under a single application and a majority of the land on the tract where the farmstead land is located is agricultural use land. The PFB's recommendation is that:

. . . language be added to this Subsection to make it more explicitly clear that the requirements for preferential assessment of farmstead land prescribed in Section 137b.51(g) apply, whether or not the county passes an ordinance to authorize preferential assessment of farmstead land within ''agricultural reserve'' or ''forest reserve'' portions of enrolled land.

 Response: The Department accepts the commentator's recommendation, and revised § 137b.15 in the final-form rulemaking to have separate subsections addressing the preferential assessment of farmstead land on agricultural use land, agricultural reserve land and forest reserve land.

 The Department notes that in Comment 33 the PFB and IRRC expressed concern with respect to the consistency among proposed §§ 137b.15 and 137b.51(c) and (g). The Department agrees with the commentators on this point and amended §§ 137b.15 and 137b.51(c) by adding general cross-references to § 137b.51(g), which presents a comprehensive description of the circumstances under which farmstead land is to receive preferential assessment.

 Comment 31: A commentator noted that § 137b.41(a) and (e) (relating to application forms and procedures) allows a county assessor to require an applicant for preferential assessment to provide additional information or documentation to support that the land is eligible for preferential assessment.

 The commentator suggested that precise standards be established as to the type of documentation that should be required in support of an application for preferential assessment. In support of his suggestion, the commentator also referenced comments that were offered with respect to § 137b.41(e) in an earlier rulemaking and that were presented and addressed in the final-form rulemaking published 31 Pa.B. 1701 (March 31, 2001) adopting Chapter 137b.

 Response: The Department declines to establish precise documentation requirements or a list of examples of the type of documentation a county assessor might reasonably require. As was the case when this question was raised in the context of the earlier rulemaking referenced by the commentator, it has been the experience of the Department that when it provides a regulatory list, a county assessor might either refuse to accept any documentation that is not on the list or require a specific document on that list in all instances. The Department is reluctant to offer a one-size-fits-all list of acceptable documentation.

 Comment 32: The Lancaster County Assessment Office reviewed proposed § 137b.42 (relating to deadline for submission of applications) and offered that in ''Example 2 in the current Regulations infers a 'second' application period, between June 2nd and December 31st. That is an administrative nightmare. By the time the preferential assessment would begin, the nature of that parcel can be entirely changed. Why include that example at all?''

 Response: The Department believes that, in context, the referenced example clearly shows the consequences of submitting an application for preferential assessment before or after the June 1 deadline established in section 4(b) of the act. The example does not establish a new application window.

 Comment 33: The PFB reviewed proposed § 137b.51 and presented essentially the same comment it offered with respect to proposed § 137b.15(b). See Comment 30. IRRC joined in this comment.

 The commentators are concerned that proposed § 137b.51(c) will be read as requiring an authorizing ordinance from the county commissioners for farmstead land on agricultural reserve or forest reserve land to be preferentially assessed. As described in greater detail in Comment 30, there are actually three different circumstances under which farmstead land on agricultural reserve or forest reserve land might be preferentially assessed. These circumstances are presented in proposed § 137b.51(g).

 The PFB recommended this section be amended to more clearly state the requirements for preferential assessment of farmstead land as presented in proposed § 137b.51(g) apply.

 The PFB also offered a general comment with respect to proposed § 137b.51(g). The commentator noted that although the proposed language and examples accurately reflect the act, it remained concerned that this language is not consistent with proposed §§ 137b.15 and 137b.51(c). The PFB recommended that a ''. . . more detailed effort be made in final rulemaking to clarify and reconcile these provisions'' consistent with its comments. Similarly, IRRC asked that in this preamble the Department explain how the referenced provisions will be implemented and how these provisions are consistent with the act.

 Response: The Department refers to its response to Comment 30.

 The Department accepts these comments, amended the final-form regulation accordingly and added the clarifications to this preamble as recommended by IRRC.

 Comment 34: A commentator asked whether Example 2 under proposed § 137b.51(g)(4) should conclude that the farmstead ''shall not'' be assessed at agricultural use value rather than that it ''shall'' be so assessed.

 Response: The example is correct as proposed, since the majority of the land in the subject application for preferential assessment is agricultural use land. This is also the result called for under section 4.2(d)(2)(i) of the act.

 Comment 35: A commentator offered a detailed comment regarding the assessment of forest reserve land under § 137b.51 and to proposed § 137b.53.

 The commentator requested that there be an investigation of the manner in which the Department is implementing the act with respect to the assessment of forest reserve land.

 The commentator also recommended the Department write the final-form rulemaking to specifically require that, when assessing a tract of forest reserve land, a county assessor accept certain documentation as proof of the timber types that are present on that land. The commentator further recommended that a county be ''. . . required to do an appraisal for each and every forest reserve property delineating each property's Forest subcategories (timber types).''

 The commentator noted that each enrolled tract of agricultural use and agricultural reserve land is assessed based upon the specific soil types present on that individual tract. By contrast, the use values provided by the Department for forest reserve land are not specific to the particular tract being assessed, but are either: (1) use values for six different defined timber types which must then be applied by the county assessor to the tract being assessed; or (2) a county-specific average timber value that the county assessor applies countywide. The commentator questioned if the Department has the authority to issue a county-specific average timber value to each county, arguing that this value: (1) is, itself, an assessment; and (2) does not fit within the definition of ''land use subcategory'' in § 137b.3.

 The commentator offered the following:

. . . For forest reserve enrollees the Department gives use values by subcategories BUT in addition, is also giving an average county value which is not a legally defined subcategory as outlined in regulations above. It should be noted that nowhere in the forestry literature, CG Act nor in regulation is an average use value a ''recognized subcategory of forest land'' or a ''forest type'' and thus does not meet the letter or intent of the law to utilize subcategories . . . Average values given by the Department are assessments, which the Department is not allowed to give by law or regulation, and is the responsibility of the county assessor within the law . . . and the Department is only allowed to give the use values BASED ON ''recognized subcategorizations of forest land'' (i.e. forest type). Forest reserve needs to be treated as agricultural reserve by the Department, immaterial of the capability of the county assessors or cost, in developing subcategories specific to each and every enrollee's property enrolled in the forest reserve category. This is being required for those properties under the Agricultural Reserve section of CG (soil types are utilized for agricultural reserves enrolled for their specific properties not average values by county which an average value is not stated in regulation or law).

In addition the Department is allowing, with no oversight, the counties to utilize this non-subcategory average value that may be of higher value, of specific individual enrolled forest reserve properties, than what the Department has given as subcategories (forest types). There is listed no where an average use value as a legally defined subcategory and use values need to be tied into the specific property being assessed and not a general average of all properties that includes public lands and non-Clean and Green enrolled properties.

 Response: The commentator makes some fair points.

 Since detailed soils maps exist for virtually every acre of land that is the subject of an application for preferential assessment as agricultural use or agricultural reserve land, it is a comparatively more simple process for a county assessor to know the soils that are present on a given tract and to assign the appropriate Department-issued use values in calculating the preferential assessment of that land.

 There is nothing akin to the detailed soil maps referenced in the preceding paragraph to assist county assessors in calculating the preferential assessment of forest reserve land. The Department coordinates with the Department of Conservation and Natural Resources' Bureau of Forestry each year to generate for each county assessor: (1) use values that apply to six different timber types (softwood stand, select oak stand, oak stand, northern hardwood stand, black cherry stand and miscellaneous hardwood stand); and (2) a county-specific average timber value. This county-specific average timber value is only an average reflecting the value of timber in a given county, rather than on a given parcel of forest reserve land in that county. For this reason, the Department has long taken the position that a county assessor who employs a county-specific average timber value in assessing forest reserve land must disregard that value if the landowner can demonstrate that the actual timber types that are present on the tract are such that the assessment would be lower if the county assessor employed the Department-provided use values for these timber types in calculating the assessment for that tract, rather than employing the county-specific average timber value.

 County assessors have generally followed the Department's position, but in recent years a single county took issue with this practice and took the position that it did not have the discretion to recalculate/lower an assessment of a forest reserve tract that had been assessed using the county-specific average timber value, even when the landowner could demonstrate that the quantity and type of timber on the tract was below this county-specific average timber value. The Department believes this approach fails to meet the requirement in section 4.2(b) of the act that ''[f]or each application for preferential assessment, the county assessor shall establish a total use value for land in forest reserve by considering available evidence of capability of the land for its particular use.'' (Emphasis added.)

 Clearly, a landowner's timber management plan or other evidence of the quantity and type of timber on a particular tract of forest reserve land is ''evidence of capability of the land'' for its forest reserve use and the county assessor does not have the discretion to ignore it.

 In response to this comment, the Department amended this section by: (1) revising the definition of ''land use subcategory'' in § 137b.2 to make clear that the county-specific average timber values are values for a land use subcategory of land in forest reserve; and (2) adding § 137b.53(g) to specifically require a county assessor to recalculate the assessment of a tract of forest reserve land that was initially assessed using the county-specific average timber value where the landowner provides evidence that the value of the timber on the tract is lower than the value that was determined using that county-specific average timber value.

 Comment 36: The same commentator who offered the preceding comment presented related comments with respect to proposed § 137b.53.

 The commentator questions the Department's authority to provide county-specific average timber values, offering that these values do not represent a ''recognized subcategorization'' of forest land that would constitute a ''land use subcategory'' as that term is defined in § 137b.2.

 The commentator offered that the use of county-specific average timber values amounts to the Department:

. . . knowingly allowing in many cases the counties to develop a use value that is higher than forest type (sub-categorization) by turning a blind eye and encouraging assessors to utilize this average value. The Department does not do this for Agricultural Reserve and thus is implementing the Clean & Green as a double standard system and not doing their due diligence in enforcing the law.

 The commentator also suggested that the Department changed its stance to allow a county assessor to use only the county-specific average timber value in assessing forest reserve land and ignore evidence the landowner provides as to the specific quantity, type and value of the timber on a given tract of forest reserve land. The commentator believes the Department is ''. . . turning a blind eye to the enforcement of the law and regulation without any other reason than to appease county assessors who want to circumvent the law and collect as much in revenues as possible without doing their due diligence required by law.''

 The commentator recommended that counties should be required to compile and maintain a mapping system showing exact quantities and types of timber throughout the county. Presumably, this would be akin to the soils maps that are available for use by counties in calculating assessments for agricultural use and agricultural reserve land.

 The commentator also opined that:

. . . it is the legal responsibility of the county assessor to do an on-site appraisal of each property to assess the correct tax liability to that property based on the law and sub-categories developed by the Department. There is a double standard of how the Department has chosen to implement the Clean & Green Law for agricultural reserve and for forest reserve.

 Response: The Department's response to Comment 35 addresses some of the commentators concerns.

 As detailed in the preceding response, the commentator's belief that the Department has changed its stance with respect to whether county assessors must consider available evidence of timber type and quantity if that would result in a lower assessment than if a county-specific average timber value is used is not correct, although the absence of regulatory language clearly addressing this subject has likely created or contributed to the confusion on this point. As previously stated, the final-form rulemaking remedies this by: (1) revising the definition of ''land use subcategory'' in § 137b.2 to make clear that county-specific average timber values are values for a land use subcategory of land in forest reserve; and (2) adding § 137b.53(g) to specifically require a county assessor to recalculate the assessment of a tract of forest reserve land that was initially assessed using the county-specific average timber value where the landowner provides evidence that the value of the timber on the tract is lower than if calculated using that county-specific average timber value.

 The Department declines to require county assessors to compile and maintain a mapping system showing exact quantities and types of timber throughout the county. The act does not require this, nor does it require counties to compile the soils maps county assessors use in calculating assessments of agricultural use land or agricultural reserve land. Although these soils maps are excellent tools for county assessors, they are not required or established under authority of the act.

 Comment 37: The Sullivan County Assessment Office reviewed proposed § 137b.53 and offered the following comment:

This section should contain a provision for acreage corrections. With the oil & gas industry, many surveys have been done resulting in additional acreage to the property owner. New deeds are recorded or surveys recorded with no amendment to the Clean & Green application. This creates a missing link when looking into the history of a property's acreage. The end result is a clean and green application with acreage B, and a deed with acreage A. However, there are acreage corrections for other reasons as so it should not be tied into a new survey; it should be tied into any acreage correction.

 Response: The Department believes that matters regarding acreage corrections are typically handled between the county assessor, the county recorder of deeds and/or the impacted landowner, and that these relationships and interactions occur outside of the context of the Department's administration of the act. For this reason, the Department did not make changes to the final-form rulemaking in response to this comment.

 Comment 38: The PFB reviewed proposed § 137b.53(f) and noted that the subsection would require that in recalculating preferential assessment the county assessor use ''. . . either the current use values and land use subcategories provided by the Department'' without providing the alternative that is suggested by ''either.'' The PFB also offered that § 137b.53(c) suggests that this alternative should be that a county assessor may also use ''lower use values established by the county assessor'' in recalculating preferential assessment.

 Response: The commentator spotted a publishing error that has apparently been in place since the current regulation was published in 2000. Section 137b.53(f) read as follows when it was originally adopted at 31 Pa.B. 1701:

(f) Required recalculation of preferential assessment in countywide reassessment. If a county undertakes a countywide reassessment, or a countywide reassessment of enrolled land, the county assessor shall recalculate the preferential assessment of all of the enrolled land in the county, using either the current use values and land use subcategories provided by the Department, or lower use values established by the county assessor and land use subcategories provided by the Department.

 The phrase '', or lower use values established by the county assessor and land use subcategories provided by the Department'' was inadvertently omitted from the regulation when codified in the Pennsylvania Code. The final-form rulemaking corrects this publishing error by reprinting this subsection as it was adopted at 31 Pa.B. 1701.

 Comment 39: A commentator provided a detailed explanation of the process by which he divided his 1,020 acres of enrolled land into 31 separate tracts. According to the commentator, each tract meets the minimum criteria for preferential assessment. The commentator related that he was notified by the county assessor that he was in violation of the act because he had not provided the county assessor 30 days' advance notice prior to recording the subdivision that created these 31 tracts. The commentator asked: ''Was there by your new definitions a failure to provide notice?''

 Response: The commentator's question appears to seek an opinion from the Department as to the applicability of § 137b.63, a provision that paraphrases the requirement in section 4(c) of the act that a landowner provide the county assessor at least 30 days' advance notice with respect to any type of division of a tract of enrolled land.

 Comment 40: Section 137b.64 requires that land that is enrolled as agricultural reserve land must be open to the public for outdoor recreation or the enjoyment of scenic or natural beauty without charge or fee on a nondiscriminatory basis. It also allows a landowner to place reasonable restrictions on this public access and provides several examples. A commentator suggested that landowners are taking advantage of this by establishing access restrictions that are not reasonable. The commentator recommends that a reasonable restriction be defined and that landowners be subject to some sanction if the restrictions they put on public access to their enrolled agricultural reserve land are not reasonable.

 The commentator also presented several hypotheticals where a landowner would strategically enroll strips of land as agricultural use or forest reserve land to block public access to agricultural reserve land, and asked what could be done to address this.

 Response: Section 137b.64(a) essentially restates the language from the statutory definition of agricultural reserve land in section 2 of the act with respect to the use of that type of land for outdoor recreation or the enjoyment of scenic or natural beauty.

 With respect to the hypotheticals presented by the commentator, the Department has not encountered situations akin to those presented in the hypotheticals, and considers it quite unlikely this situation would occur.

 Comment 41: The CCAP and the TCAO reviewed proposed § 137b.72(b)(2), which describes the circumstances under which up to 1/2 acre of enrolled land may be used for direct commercial sales of agriculturally related products without breaching preferential assessment or triggering roll-back tax liability, and asked whether the 1/2 acre would include acreage devoted to ingress, egress and parking area, or just the footprint of the building from which direct commercial sales occur.

 The TCAO noted that it is the practice in Tioga County to include acreage devoted to ingress, egress and parking in determining total acreage for purposes of the 2 acres-or-less standard in § 137b.72(b)(1), and recommended that this same approach be taken with respect to the 1/2 acre-or-less standard in § 137b.72(b)(2).

 IRRC made note of these comments and asked for clarification of: (1) what is meant by the phrase ''direct commercial sales''; and (2) how the referenced 1/2 acre is to be calculated.

 Response: Although the referenced provision essentially repeats language that was added to section 8(d)(3) of the act by Act 190, the Department agrees that acreage used for ingress, egress and parking should be counted toward the 1/2-acre standard. Section 137b.72(b)(2) has been amended to make this clear.

 The Department believes that ''direct commercial sales'' refers to sales such as when a customer stops at a roadside stand and purchases agriculturally related products onsite. Although the Department does not perceive that there is confusion in the regulated community on this point, it added a definition of ''direct commercial sales'' in § 137b.2.

 Comment 42: A commentator noted the standard in proposed § 137b.72(b)(2)(i) and asked who is charged with determining compliance with that standard, how compliance would be determined and whether there are penalties if this standard is not met.

 The referenced provision repeats the requirement in section 8(d)(3) of the act that, for a portion of an enrolled tract to be used for direct commercial sales of agriculturally related products without triggering some type of roll-back tax liability, the acreage used for these sales must be 1/2 acre or less and at least 50% of these agriculturally related products must be produced on the enrolled land.

 Response: The response to Comment 11 addresses the Department's experience and perspective with respect to the referenced 50% standard. The Department will remain mindful of the commentator's concerns. If the need for clarification becomes apparent as the Department gains experience in administering this provision, it will consider revisiting this provision and providing regulatory guidance.

 The county assessor is ultimately charged with determining compliance with the referenced 50% standard, since section 5(b) of the act assigns county assessors the responsibility to calculate roll-back taxes.

 As far as the commentator's question regarding penalties for noncompliance with proposed § 137b.72(b)(2) is concerned, the consequence of failing to meet that standard is roll-back tax liability. This roll-back tax liability would apply to the total enrolled acreage unless the acreage and operation meets the requirements in § 137b.72(b)(1), in which case the roll-back tax liability would apply to as much as 2 acres of the enrolled tract.

 Comment 43: Proposed § 137b.72(c) provides that a county assessor ''may'' inventory the goods sold at an on-farm operation engaged in the direct commercial sale of agriculturally related products to determine ownership of the goods. A commentator offered that this requirement should be mandatory and not discretionary.

 Response: The Department declines to require by regulation that a county assessor inventory the agriculturally related products at an operation that is engaged in the direct commercial sale of these products. A county assessor certainly has discretion to conduct an inventory, but the Department believes that there are many instances when an inventory is not necessary and would not serve a purpose. This is particularly so when the operation is a small roadside farm stand selling just a few agriculturally related products of a type visibly grown on the farm. By contrast, when an operation sells a large variety of agriculturally related products and the source or ownership of those products is less apparent, then a county assessor might choose to exercise its discretion and conduct an inventory.

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