Notice of Revised Proposed Policy for Outfitting and Guiding Land Use Fees in the Alaska Region, 21098-21106 [E8-8239]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 73, Number 76 (Friday, April 18, 2008)]
[Notices]
[Pages 21098-21106]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-8239]


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DEPARTMENT OF AGRICULTURE

Forest Service


Notice of Revised Proposed Policy for Outfitting and Guiding Land 
Use Fees in the Alaska Region

AGENCY: Forest Service, USDA.

ACTION: Notice of revised proposed policy; request for comment.

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SUMMARY: The Alaska Region of the Forest Service is proposing a revised 
regional flat fee policy in place of the proposal published in the 
Federal Register on September 15, 2006 (71 FR 54454). The revised 
policy differs enough from the original proposed policy to merit public 
notice and comment.

ADDRESSES: Send comments to the Regional Forester, Attention: 
Recreation, Lands and Minerals Staff, P.O. Box 21628, Juneau, Alaska 
99802-1628; via electronic mail to comments-alaska-regional-
office@fs.fed.us; or via facsimile to (907) 586-7866. Please confine 
comments to issues pertinent to the revised proposed fee policy. 
Comments that were submitted previously in response to the September 
15, 2006, Federal Register notice are addressed in the response to 
comments section of this preamble. The public is not required to send 
duplicate comments via regular mail when submitting comments by e-mail. 
All comments, including names and addresses when provided, will be 
placed in the record and will be available for public inspection and 
copying. The public may inspect comments received on this revised 
proposed policy in Room 519D of the

[[Page 21099]]

Federal Office Building, 709 West 9th Street, Juneau, Alaska, between 9 
a.m. and 4 p.m. on business days.

DATES: Comments must be received in writing by June 2, 2008.

FOR FURTHER INFORMATION CONTACT: Neil Hagadorn, (907) 586-9336.

SUPPLEMENTARY INFORMATION: This notice supplements and incorporates to 
the extent it is consistent with the September 15, 2006, notice of the 
proposed long-term flat fee policy for outfitting and guiding in the 
Alaska Region, including the December 15. 2006, extension of the 
comment period for that proposed policy.

Background

    In The Tongass Conservancy v. Glickman, No. J97-029-CV, slip op. 
(D. Alaska Sept. 19, 1998), the court held that the Forest Service's 
land use fee system must be fair to the plaintiff outfitter and guide, 
as well as based on the market value of the use of National Forest 
System (NFS) lands. In addition, based on a concern that different fees 
were being charged for the same type of commercial use of NFS lands, 
the court held that there was ``insufficient evidence in the record to 
support a conclusion that the fees charged to the plaintiff were both 
fair and based upon the value of the use of Forest Service lands 
available to the plaintiff.'' The Tongass Conservancy, slip op. at 2. 
The court ordered the Alaska Region of the Forest Service to undertake 
actions consistent with the court's ruling and applicable law.
    In response, on July 21, 1999, the Alaska Region published in the 
Federal Register for public notice and comment a proposed interim flat 
fee policy for all outfitting and guiding in the Alaska Region (Alaska 
Region Interim Flat Fee Policy or ARIFFP) (64 FR 39114, July 21, 1999). 
The notice for the final interim ARIFFP was published in the Federal 
Register, and went into effect on February 14, 2000 (65 FR 1846, 
January 12, 2000).
    On September 15, 2006, the Alaska Region published a notice of a 
proposed regional flat fee policy in the Federal Register (71 FR 54454) 
with a 90-day comment period. The agency received two requests for an 
extension of the comment period. The Forest Service extended the 
comment period until March 15, 2007 (71 FR 74896). The Alaska Region 
received 40 comments from individuals, outfitters and guides, the 
travel industry, and the Southeast Alaska Conservation Council.
    Based on review of the comments, the Alaska Region is revising its 
proposed flat fee policy. The revised proposal in this notice replaces 
the initial proposal published on September 15, 2006.
    In August 2003, the Anchorage-based appraisal firm Black-Smith and 
Richards, Inc. (BSR) completed its phase II market study (Final Phase 
II Report) on development of a land use fee system for outfitting and 
guiding in the Alaska Region that is both fair to the outfitters and 
guides and based on the fair market value of the use of NFS lands for 
outfitting and guiding. The Final Phase II Report identified two 
possible methods for land use fee schedule development in this context: 
(1) The modified ARIFFP, which relates fees to gross revenues from 
outfitting and guiding conducted on NFS lands, and (2) the bottom-up 
pricing method (BUPM), which ties outfitting and guiding land use fees 
to fees charged for comparable unguided recreational uses on non-
federal lands (Final Phase II Report at 19).
    The initial proposal published on September 15, 2006, was based on 
the modified ARIFFP. The Alaska Region developed this revised proposal 
based on review of comments received on the initial proposal; BSR 
market survey data; the work group recommendations; the need to 
simplify administration of the land use fee program in the Alaska 
Region; and the application of sound business management principles.

Comments Supporting Revision of the Proposed Flat Fee Policy

    Comment. Some respondents recommended adopting the BUPM since the 
approach would be simpler and result in more consistent fees. Some 
respondents thought that the BUPM better supports Alaska outfitting and 
guiding land use fees than the modified ARIFFP because the BUPM 
reflects changing market conditions.
    One respondent suggested that all commercial activities conducted 
in a remote setting be assessed the same fee as remote-setting nature 
tours. Several respondents thought that remote-setting nature tours are 
overcharged relative to other activities. Some respondents commented 
that remote-setting nature tours and road-based tours involve the same 
activities, such as hiking, nature viewing, and photography, and should 
be charged the same fee. One respondent stated that the original 
proposed fee schedule appears to charge different fees for the same or 
similar uses of NFS lands. Another respondent believed that the 
complexity in the original proposed fee schedule probably would result 
in operators reporting different uses and paying different fees for the 
same activities. Another respondent stated that BSR's Phase I Report 
concluded that the value of the use of NFS lands for nature viewing in 
roaded areas was the same as for nature viewing in remote areas. 
Another respondent stated that the original proposed fee schedule does 
not group similar activities together. One respondent said their 
business is a combination of road-based and remote-setting experiences 
and questioned how fees for their permit would be determined.
    One respondent asked why the original proposed fee schedule has two 
categories for helicopter tours and none for motorized water-borne 
tours. One respondent questioned why a motorized water tour in a 
remote-setting differs from flight-seeing or helicopter landing tours. 
Another respondent questioned why under the original proposed policy 
fees are higher for remote-setting nature tours than for other 
categories and noted that fees for other categories are not increasing 
in the same proportion as fees for remote-setting nature tours. Another 
respondent stated that certain activities, such as helicopter tours, 
are being unfairly targeted under the original proposed fee policy, 
since their fees would increase from $2.83 to $8.12.
    Some respondents requested a separate fee for their activity, 
including tours on kayak motherships; water-based tours with occasional 
stops on NFS lands; and environmental education tours. Some respondents 
stated that flat fees based upon the average of all outfitters' and 
guides' use days are unfair to small operators because they do not have 
a high volume of business. Several respondents commented that the 
original proposed fee schedule is fragmented into unrealistically 
narrow categories. One respondent commented that there is overlap among 
the activities in the original proposed fee schedule. Another 
respondent noted that the categories in the original proposed fee 
schedule are arbitrary and are not based on a meaningful distinction 
regarding use of NFS lands. Another respondent commented that the long-
term flat fee policy would substantially expand the number of 
activities that a flight-seeing or helicopter landing tour operator 
would be required to track.
    One respondent suggested basing outfitting and guiding permit fees 
in the Alaska Region on a percentage of gross revenue.
    Several respondents stated that gross revenues are not an 
appropriate basis for calculating the value of special use privileges. 
One respondent stated that the assumption that gross revenues of a 
business conducted on NFS lands are an accurate reflection of the value 
of a

[[Page 21100]]

business's use of those lands is flawed because net revenues can vary 
widely among businesses with similar gross revenues. Two respondents 
noted that the fees in the original proposed fee schedule are based on 
operating costs, which are not related to use of NFS lands. Another 
respondent questioned how the agency could obtain a meaningful average 
for purposes of establishing flat fees in the modified ARIFFP by 
combining revenues from a high-end operator charging $500 per day and 
revenues from an operator charging $50 per day. Another respondent 
stated that the Alaska Region did not exclude high-cost operators in 
developing the original proposed fee schedule, as was done in 
developing the ARIFFP. Another respondent stated that a flat fee 
proposal that bases fees in each category on the average revenue for 
all client days is unfair to small operators because they do not 
operate for the average number of days and do not have enough income to 
justify paying the applicable flat fee in the original proposed fee 
schedule. Two respondents stated that the cost of a tour is driven by 
the mode of access, which should have no bearing on the fees charged 
for the use that occurs after the land is accessed. One respondent 
noted that his business's revenue data were not considered in 
establishing the original proposed policy because his business started 
in 2004. Another respondent stated that the original proposed fee 
policy would impose a cumbersome administrative burden on outfitters 
and guides.
    Response. The Alaska Region has revised the proposed policy by 
applying market survey information from the Final Phase II Report to 
develop the BUPM and applying sound business management principles to 
simplify land use fee administration for outfitters and guides and the 
Alaska Region. The Final Phase H Report recognized that both the 
modified ARIFFP and the BUPM could be used to develop an outfitting and 
guiding permit fee system for the Alaska Region in compliance with the 
ruling in The Tongass Conservancy v. Glickman (Final Phase II Report at 
9).
    The September 15, 2006, Federal Register notice states, ``The data 
are too limited to develop unique values in the bottom-up pricing 
method for the diverse activities recognized in the Alaska Region'' (71 
FR 54459) (citing the Final Phase II Report at 59-60). In the 
discussion of the BUPM, the BSR report observes that the broader market 
recognizes only a few general categories of related uses (Final Phase 
II Report at 21). However, by reducing the 30 activities in the initial 
proposal to 9 activities in this revised proposal, sufficient market 
data are available to develop a land use fee schedule based on fees 
paid to non-federal land owners for comparable unguided land uses. The 
resulting fee schedule is more closely tied to the market than the 
original fee schedule.
    The large number of activities in the original proposed fee policy 
was carried over from the original flat fee schedule recommended for 
consideration by a working group from federal and state agencies 
assisting the Alaska Land Use Council (71 FR 54454 54455; Sept. 15, 
2006). Road-based nature tours, remote-setting nature tours, flight 
seeing landing tours, helicopter landing tours, non-motorized 
freshwater boat trips, dog sled tours, camping, and road-based wildlife 
viewing activities are combined in this revised policy in one general 
recreation activity. These activities were combined because the market 
does not appear to differentiate between those types of unguided 
recreation activities. This new activity is consistent with the ruling 
in The Tongass Conservancy v. Glickman, which holds that to be fair to 
outfitters and guides, the Alaska Region's outfitting and guiding land 
use fee system must establish similar fees for similar uses of NFS 
lands. The Tongass Conservancy, slip op. at 8.
    Updating the fee schedule under the initial proposal would require 
periodic compilation of gross revenue and the number of client days and 
clients per hunt. The Final Phase H report states: In the bottom-up 
pricing method, flat fees are derived from a survey and correlation of 
actual market data. The only permit holder data required are the annual 
reports of client volumes. There is no percentage component (Final 
Phase 11 Report at 59). Updating the fee schedule under the revised 
proposal therefore would be less burdensome to the permit holders and 
the Alaska Region, since it would merely involve adjusting fees in 
accordance with the Implicit Price Deflator-Gross Domestic Product 
(IPD) and periodic market surveys of unguided land use fees.
    In addition, combining the 8 activities from the original proposal 
into one general recreation category in the revised proposal reduces 
the potential for charging for the level of service provided and mode 
of transportation used to access NFS lands, and would assure greater 
fairness and equity to a larger segment of the outfitters and guides. 
Thus periodic updates of the fee schedule would be less burdensome and 
expensive than the process required to update the modified ARIFFP.
    The Forest Service disagrees with the comment that gross revenues 
are not an appropriate basis for calculating the value of special use 
privileges. Generally, the gross revenues of a business conducted on 
NFS lands are an accurate reflection of the value of the business's use 
of those lands, regardless of whether the business involves 
improvements on NFS lands. Gross revenues derived from use or occupancy 
of NFS lands are an accurate indicator of the value of that use or 
occupancy because generation of the income depends on use of NFS lands: 
without it, the business would not exist. This conclusion is supported 
by the 1996 Government Accountability Office (GAO) report, ``Fees for 
Recreation Special-Use Permits Do Not Reflect Fair Market Value'' (1996 
GAO report), which compares land use fees for outfitting and guiding 
based on a percentage of gross revenues that are charged by the Forest 
Service with land use fees charged by the State of Idaho for outfitting 
and guiding based on a percentage of gross revenues (GAO Report, RCED-
97-16 (Sept. 1996) at 7)).
    Nevertheless, as stated in the original flat fee proposal (71 FR 
54454), the agency believes that flat fees for outfitting and guiding 
are appropriate in the Alaska Region because many outfitters and guides 
in Alaska base a significant percentage of their client charges on 
activities that occur off NFS lands. In contrast to the original flat 
fee proposal, which was based on an average of revenues generated by 
outfitters and guides conducting activities on NFS lands, the revised 
flat fee proposal is completely divorced from gross revenues of 
outfitters and guides because it is based on the fees charged for 
comparable unguided uses on non-federal lands. Therefore, the comments 
on the original flat fee proposal regarding gross revenues do not apply 
to the revised flat fee proposal.

Other Comments

Short-Stop Fees

    Comment. One respondent said that there should be an incidental use 
category. Some respondents thought they should be charged a short-stop 
fee because their clients are not on NFS lands a high percentage of 
their tour. Another respondent suggested establishing a category for 
water-based tours with occasional stops on NFS lands. One respondent 
stated that the original proposed policy would result in land use fees 
based on the cost of delivering guests and other services, not on the 
value of the use of NFS lands. One respondent noted that in setting the 
fee for remote setting nature tours, the agency failed to ensure that 
fees are

[[Page 21101]]

impermissibly based on revenues derived from services provided off NFS 
lands.
    Response. Short-stop fees are charged for trips that use NFS lands 
incidental to the purpose of the trip (FSH 2709.11, sec. 37.05). For 
example, both the initial and revised fee policies include short-stop 
flat fees that had been developed for Forest Service visitor centers in 
Alaska. The attraction of the Chugach and Tongass National Forests is 
not considered incidental to the purpose of outfitted and guided trips 
in Alaska. In general, non-federal landowners charge the same rate for 
unguided recreational uses, regardless of the time per day spent on 
their lands. Therefore, other than for visitor centers in Alaska, the 
Alaska Region believes that a short-stop fee is not appropriate for the 
outfitting and guiding uses in Alaska.

Category for Nonprofit Educational Organizations

    Comment. One respondent asked the Alaska Region to consider adding 
a category for nonprofit educational organizations.
    Response. The Forest Service's regulations define a commercial use 
or activity as any use or activity on NFS lands where an entry or 
participation fee is charged or where the primary purpose is the sale 
of a good or service, and in either case, regardless of whether the use 
or activity is intended to produce a profit (36 CFR 251.51). The Forest 
Service's regulations define guiding as providing services or 
assistance (such as supervision, protection, education, training, 
packing, touring, subsistence, transporting people, or interpretation) 
for pecuniary remuneration or other gain to individuals or groups on 
NFS lands (36 CFR 251.51). The Forest Service's regulations define 
outfitting as renting or delivering to NFS lands for pecuniary 
remuneration or other gain any saddle or pack animal, vehicle, boat, 
camping gear, or similar supplies or equipment (36 CFR 251.51). Under 
these regulations, an entity that is conducting outfitting or guiding, 
regardless of whether it is intended to produce a profit, is engaging 
in a commercial activity that is subject to land use fees. Thus, it 
would not be appropriate to establish a separate category for nonprofit 
educational institutions in the Alaska Region's outfitting and guiding 
flat fee policy.

Off-Forest Discount

    Comment. Some respondents commented that they spend a small portion 
of their time on NFS lands and should receive an 80 percent discount on 
fees derived as a percentage of gross revenue. One respondent stated 
that in setting fees, the agency must consider actual use or commercial 
dependency of outfitters and guides.
    Response. The revised proposed policy is not based on gross revenue 
or the amount of time spent on NFS lands. Fees would be charged per 
client per day or per client per hunt, regardless of the amount of time 
per day spent on NFS lands or the length of the hunt. In contrast to 
the fees in the initial proposed policy, i.e., in the modified ARIFFP, 
which were developed by determining the average price charged each 
client per day or per hunt for each category of outfitting and guiding 
conducted on NFS lands, the fees in the revised proposed policy were 
developed using data for fees charged for comparable unguided 
activities on non-federal lands. Thus, in contrast to the original 
proposed policy, the revised proposed policy is not derived from gross 
revenue of outfitters and guides operating on NFS lands. The market 
observations show that private and other government entities do not 
give discounts and that it is not necessary to apply a discount for 
revenue derived from use off NFS lands. Flat fees are derived from a 
survey and correlation of actual market data. There is no percentage 
component (Final Phase II Report at 59).

Independent Offices Appropriations Act of 1952 (IOAA)

    Comment. Some respondents commented that the IOAA requires agency 
fees to be based on public policy, the value of the benefit to the 
recipient, and the cost to the government. One respondent stated that 
the IOAA does not mandate that permit fees serve as a revenue source 
for federal agencies. This same respondent stated that fees may be 
based on market prices and yield net revenues when the government is 
acting in a proprietary capacity, i.e., leasing or selling goods, but 
not where, as here, the government is acting in a proprietary capacity 
in providing access to federal lands.
    Response. Consistent with the IOAA and OMB Circular No. A-25. 
Forest Service regulations at 36 CFR 25 1.57(a)(I) provide that land 
use fees for special use authorizations shall be based on the fair 
market value of the rights and privileges authorized, as determined by 
appraisal or other sound business management principles. Likewise, the 
court in The Tongass Conservancy case held that while the land use fee 
must be fair to the plaintiff, the fee must also be based on the value 
of the use of NFS lands. The Tongass Conservancy, slip op. at 7.
    Therefore, land use fees for special uses, including outfitting and 
guiding. must be charged for the use of NFS lands, rather than for 
access to NFS lands.
    OMB Circular No. A-25 provides that user charges are based on 
recovery of full agency costs when an agency is acting in a sovereign 
capacity, e.g., when a land management agency is charging recreation 
fees for facilities and sites managed by that agency. OMB Circular No. 
A-25, sec. 6a(2)(a). However, when an agency is acting in a propriety 
capacity, e.g., when an agency is leasing or selling goods or 
resources, user charges are based on market prices. Id, at see. 
6a(2)(b). Here, issuance of an outfitting and guiding permit 
authorizing use of NFS lands is analogous to authorizing use of federal 
lands under a lease. Therefore, under OMB Circular No. A-25, the proper 
standard is market value, rather than agency costs.

Fees Based on Impacts to the Land

    Comment. Some respondents commented that the proposed fee policy 
does not take into account the impacts of outfitting and guiding 
activities on NFS lands. Others stated that camping trips have a much 
greater impact on the environment than boat tours and questioned why 
the fees are higher for boat tours than for camping. One respondent 
stated that fees should not be higher for non-consumptive uses of NFS 
lands.
    Response. Under the IOAA, OMB Circular No. A-25, and Forest Service 
regulations, the standard for determining land use fees charged by the 
Forest Service is the market value of the use of NFS lands, not the 
impact of the use on NFS lands. Therefore, it would not be appropriate 
to take into account the impacts of outfitting and guiding activities 
in setting their land use fees.

Objectivity of BSR

    Comment. One respondent questioned BSR's objectivity based on BSR's 
acceptance of the Forest Service's conclusion that current land use 
fees for outfitting and guiding in the Alaska Region do not reflect 
fair market value; BSR's use of the word ``arguably'' to justify a 
result favorable to the Alaska Region; and BSR's statement that the 
initial proposed fee policy ``best meets the needs of the Alaska 
Region.''
    Response. The Alaska Region believes that BSR did not show any 
actual or apparent bias in any aspect of the outfitter and guide use 
evaluation. Both

[[Page 21102]]

the Phase I and Phase II Reports contain certifications stating that 
BSR has no present or prospective interest in Forest Service special 
use authorizations; that BSR has no personal interest or bias with 
respect to the parties involved in the outfitting and guiding use 
valuation; that BSR's employment was not conditioned on, nor its 
compensation contingent upon, the reporting of a predetermined 
objective or direction that favors the cause of the Forest Service or 
any other party, the amount of the value estimate, the attainment of a 
stipulated result, or the occurrence of a subsequent event; and that 
BSR's analyses, opinions, and conclusions were developed, and the 
reports were prepared, in conformity with the Uniform Standards of 
Professional Appraisal Practice and the Uniform Standards for Federal 
Land Acquisitions (Phase I Report at 4; Final Phase II Report at 5). 
These certifications attest to BSR's lack of actual or apparent bias.
    The Forest Service's conclusion that current land use fees do not 
reflect fair market value is supported by BSR's data and analysis (see, 
e.g., Phase I Report at 48) and the 1996 GAO report, which specifically 
addresses outfitting and guiding land use fees. In particular, the 1996 
GAO report states:

    In an effort to compare state and federal fees for commercial 
recreational activities, we compared some Forest Service-authorized 
commercial recreational uses and fees in national forests that we 
visited to similar uses and fees on state lands. We found some 
similar comparisons in three of the five states we visited. In those 
instances--in California, Idaho, and Colorado--the states' fees for 
commercial recreation uses ranged from 6 to 15 percent of gross 
sales or revenues, while the Forest Service's fees averaged less 
than 3 percent. * * *. Idaho's fee for 12 of these [outfitting and 
guiding] activities is 5 percent of gross sales or $250 annually, 
whichever is greater. In comparison, the Forest Service's fee for 
outfitters and guides is a maximum of 3 percent of gross revenues or 
$70, whichever is greater.

    (GAO Report, RCED-97-16 (Sept. 1996) at 7).
    Use of the word ``arguably'' does not show bias; rather, use of the 
word ``arguably'' qualifies a statement, i.e., shows that it is open to 
argument.
    Likewise, the statement that the initial proposed policy ``best 
meets the needs of the Alaska Region'' does not show bias because 
meeting the needs of the Alaska Region includes being fair to 
outfitters and guides. Specifically, the request for proposals (RFP) 
for the outfitter and guide use valuation in the Alaska Region requires 
BSR to develop an outfitting and guiding fee system (1) that is fair to 
outfitters and guides in charging similar fees for similar uses (see, 
e.g., Phase I Report at 49, evaluating the ability of each methodology 
to develop market prices that are fair to permit holders), as well as 
fair to the government in yielding fees that are based on the market 
value of the use of NFS lands; (2) that will result in stable fees that 
do not vary widely over time; (3) that will not require competitive 
award of permits except in circumstances of limited new outfitting and 
guiding opportunities where demand to provide services exceeds supply; 
and (4) that will be simple to administer and that will not result in 
an undue reporting or record-keeping burden on permit holders (RFP at 
11).

Minimum Fees

    Comment. Some respondents commented that there is a need for a 
standard minimum fee for small operators.
    Response. The minimum fee for all outfitters and guides, regardless 
of the size of their business, is $100 and would stay the same in the 
revised proposed policy.

Use of Proposed Fee Increases

    Comment. Some respondents questioned whether the increase in fees 
would be used to benefit outfitters and guides and visitors to the 
national forests.
    Response. Forest Service outfitting and guiding permits are issued 
under the Federal Lands Recreation Enhancement Act (REA) (16 U.S.C. 
6801-6814). REA requires the Forest Service to retain and spend at 
least 80 percent of the funds collected under that statute, including 
land use fees from permits, at the site where the funds are collected, 
for enhancement and administration of the special uses program. 
Therefore, any increase in fees would benefit outfitters and guides and 
visitors to the national forests in the Alaska Region.

Fees Charged When Multiple Activities Are Involved

    Comment. One respondent questioned which fee takes precedence if 
two or more activities are involved in a tour. Another respondent was 
concerned that the agency would charge the higher fee if both 
activities are conducted the same day.
    Response. Currently, when an outfitter or guide conducts more than 
one authorized activity on a given day, the Alaska Region charges the 
highest fee from the fees for those activities. The revised proposed 
policy would eliminate this practice for any activities that are 
combined in the general recreation category. However, if an outfitter 
or guide conducts activities that fall into more than one category in 
the revised proposed policy, the outfitter or guide would pay the fee 
for the primary activity authorized in the corresponding permit. The 
actual use report would determine the fee that would be charged.

Regulatory Flexibility Act

    Comment. One respondent commented that the Forest Service has 
failed to support its certification that a Regulatory Flexibility Act 
(RFA) analysis is not required. Specifically, this respondent noted 
that there are no cost estimates as to any potential economic impact of 
the increased land use fees on outfitters and guides or the tourism 
industry.
    Other respondents commented generally on potential economic 
impacts. One respondent stated that it is difficult to absorb the 
rapidly rising costs of doing business. Another stated that the 
proposed increases in fees will be difficult to absorb. One respondent 
stated that it seems as if the proposed fees are geared toward 
eliminating the small ceo-tour operator. Another respondent expressed a 
concern that the trend established in part by the proposed policy is 
for the big companies to take over tours in the Alaska Region. That 
same respondent stated that she would not be able to pass this increase 
on to cruise lines with whom she contracts. Another respondent stated 
that the increase in fees would cause hardship to his business. Another 
respondent stated that additional economic burdens will discourage many 
businesses from continuing to offer services to the public. One 
respondent stated that small operators may be disadvantaged under the 
original proposed fee policy. One respondent noted that as a small 
business owner, he cannot justify raising his rates to include the 
proposed fee increase, yet cannot absorb the proposed increase without 
raising his rates. Another respondent stated that outfitters and guides 
cannot increase the volume of their business to cover increased fees. 
One respondent noted that he cannot absorb the large proposed increase 
for trips such as hunting that are booked 2 or 3 years in advance.
    Response. The Forest Service has conducted a threshold RFA analysis 
of the revised proposed policy. Based on this analysis, the agency has 
concluded that the revised proposed policy would not have a significant 
economic impact on a substantial number of small entities as defined by 
the RFA because the revised proposed policy would not

[[Page 21103]]

impose record-keeping requirements on them; it would not affect their 
competitive position in relation to large entities, and it would not 
affect their cash flow, liquidity, or ability to remain in the market. 
A copy of the threshold RFA analysis is included in the record for the 
revised proposed policy.

Process Used To Develop the Proposed Policy

    Comment. One respondent stated that the process used to develop the 
initial proposed fee policy was flawed because it did not involve the 
visitor services industry or outfitters and guides.
    Response. In developing policy subject to public notice and comment 
under the Administrative Procedure Act or the National Forest 
Management Act, the Forest Service must observe applicable procedural 
requirements regarding public involvement, including forming a federal 
advisory committee to conduct negotiated rulemaking with affected 
parties or publishing a proposal in the Federal Register for public 
notice and comment. The Alaska Region has met these requirements by 
publishing both the initial and revised proposed policies in the 
Federal Register for public notice and comment.

Comments Beyond the Scope of the Proposed Flat Fee Policy

    Comment. One respondent assumed that if the proposed fees go into 
effect, the respondent's request for authorization to install a 
sanitary removable outhouse, a yurt, and a yurt pad would be allowed. 
Another respondent noted that the Forest Service does not support brown 
bear research being conducted by the State of Alaska. One respondent 
stated that the Forest Service must address unreported and unauthorized 
outfitting and guiding conducted on NFS lands. One respondent stated 
that the initial proposed policy would impose air carrier requirements 
on entities that conduct air tours under Federal Aviation 
Administration regulations.
    Response. The initial and revised proposed policies would establish 
a long-term flat fee system for outfitting and guiding conducted on NFS 
lands in the Alaska Region. Neither proposed policy would address 
authorization of installation of improvements on NFS lands: research 
conducted by the State of Alaska; unreported or unauthorized use of NFS 
lands; or air carrier requirements.

Revised Proposed Alaska Region Long-Term Flat Fee Policy

    The Alaska Region developed the revised proposed long-term flat fee 
policy in response to many comments on the initial proposed policy. The 
Alaska Region reduced the number of activities from 30 to 9, resulting 
in a simpler, less expensive system to administer and update and 
greater predictability and consistency in implementation. The revised 
proposed policy is also easier and less expensive to administer and 
update because it does not include a market-based percentage rate, and 
the only permit holder data required are annual reports of client 
volumes. In compliance with the court order in The Tongass Conservancy 
case, under the revised proposal, similar fees would be charged for 
similar activities, consistent with the broader market, and the fees 
would yield a fair return to the government.
    The fees in the revised proposal are based on the review of 
comments received on the initial proposal; BSR market survey data; the 
work group recommendations; the need to simplify administration of the 
land use fee program in the Alaska Region; and the application of sound 
business management principles. The BUPM prices outfitter and guide use 
in terms of the value of comparable unguided use evidenced in the 
market place and develops flat fees based on these comparable unguided 
use values (Final Phase II Report at 8 and 59).
    Table 1 displays the revised proposed fees for outfitting and 
guiding in the Alaska Region.

Table 1.--Alaska Region Revised Proposed Outfitting and Guiding Land Use
                                  Fees
------------------------------------------------------------------------
                                                          Proposed daily
                        Activity                             flat fee
------------------------------------------------------------------------
VISITOR CENTERS (per client/per day):
    Visitor Centers.....................................         * $1.50
GENERAL RECREATION (per client/per day):
    All General Recreation Activities **................            5.00
HELI-SKIING & OVER-SNOW VEHICLE TOURS (per client/per
 day):
    Over-snow Vehicle Tours.............................           10.00
    Heli-skiing Tours...................................  ..............
FRESH WATER FISHING AND SMALL GAME HUNTING (per client/
 per day):
    Freshwater Fishing and Waterfowl....................           10.00
    Small Game Hunting (Including Wolf).................  ..............
BIG GAME HUNTING (per client/per hunt):
    Brown Bear..........................................          330.00
    Mountain Goats/Dall Sheep/Moose/Elk.................          200.00
    Black Bear..........................................          150.00
    Deer................................................          100.00
EQUIPMENT SERVICES (per day):
    Delivery and/or Pick-Up of Motorized and                      10.00
     Nonmotorized Equipment, Such as Kayaks, Over-Snow
     Vehicles, and Camping Equipment, to National Forest
     System Lands for Clients...........................
------------------------------------------------------------------------
* Visitor center flat fees do not include fees paid by visitors
  authorized under the Federal Lands Recreation Enhancement Act.
** General recreation includes road-based nature tours, remote-setting
  nature tours, flight-seeing landing tours, helicopter landing tours,
  non-motorized freshwater boat trips, dog-sled tours, camping, and road-
  based wildlife viewing activities that are in the current fee
  schedule.

    The land use fees charged for each category are described below.

Visitor Centers

    The visitor center fee does not include the standard amenity 
recreation fee that is charged for these sites under REA.

General Recreation Activities

    According to the BSR market survey, the market place does not 
recognize a high level of stratification in setting fees for general 
recreation (Final Phase 11

[[Page 21104]]

Report at 21). Consequently, in the revised proposed policy, activities 
such as road-based nature tours, remote-setting nature tours, and 
flight-seeing landing tours are grouped in the general recreation 
category. Based on the reconciliation of available market data for 
unguided uses, the BSR market survey concludes that a fee of $5.00 per 
day is appropriate for general recreation use. The report further 
observes that the market does not distinguish between partial days and 
whole days, the point of origin, or the mode of transportation used to 
conduct the activity (Final Report Phase H at 22).

Helicopter Skiing and Over-Snow Vehicle Tours

    A higher fee for helicopter skiing and over-snow vehicle tours 
compared to general recreation is justified in comparison with NFS 
lands suitable for general recreation, NFS lands suitable for safe 
helicopter skiing and over-snow vehicle tours are much more limited, 
yet the demand for these activities is equally strong. Additionally, 
the average time per day spent on NFS lands for helicopter skiing is 
considerably longer than for helicopter landing tours.

Fresh Water Fishing and Small Game Hunting

    Compared to general recreational activities such as remote-setting 
nature tours, commercial fishing and small game hunting require special 
habitats that are more limited. Habitats that contain fish-bearing 
fresh water streams are both limited in supply and high in demand. 
Setting a higher fee for fishing and small game hunting than for 
general recreation is therefore justified and consistent with the BSR 
market survey (Final Phase 11 Report at 27 and 29).

Big Game Hunting

    There are four activities for big game hunting: (1) Brown bear; (2) 
mountain goat, Dall sheep, moose, and elk; (3) black bear and (4) deer. 
The BSR market survey estimates the value of an unguided, typical 
multi-day deer hunt without camping at approximately $100. To adjust 
for Alaska conditions, the fees for the remaining big game hunt 
categories are derived by applying ratios similar to those between tag 
fees charged by the Alaska Department of Fish and Game for the 
different species, and reflected in the BSR market survey. (Final Phase 
II Report at 41-53). The fees charged for big game hunting reflect the 
availability and character of the habitat for the different big game 
species. For example, habitat suitable for deer is more plentiful than 
habitat suitable for mountain goats and coastal brown bears. In 
addition, the revised proposed fee schedule tracks the broader market 
in not distinguishing between hunts with and without camping (Final 
Phase IT Report at 41).

Equipment Services

    This activity allows an outfitter to deliver and pick up equipment 
and vehicles on NFS lands for clients, including kayaks, snowmobiles, 
bicycles, camping gear, etc. for one flat fee per day.

Comparison of the Initial and Revised Proposed Fee Policies

    Table 2 displays the Alaska Region activities in column 1. Column 2 
shows the 2006 fees that were charged for the current activities. Fees 
that would have been charged under the initial proposed fee policy are 
shown in column 3. The BUPM fees from the BSR market study are shown in 
column 4. The revised proposed fees are shown in column 5.

 Table 2.--Comparison of Initial and Revised Proposed Outfitting and Guiding Land Use Foes for the Alaska Region
----------------------------------------------------------------------------------------------------------------
                                                                   2006 modified                      Revised
                   Activities                        2006 fees      ARIFFP fees      BUPM fees     proposed fees
----------------------------------------------------------------------------------------------------------------
                               Fees for recreation use are charged per client day
----------------------------------------------------------------------------------------------------------------
General Recreation:
    Road-Based Nature Tours.....................           $0.57           $2.16           $5.00           $5.00
    Remote-Setting Nature Tours.................            2.83           13.80            5.00            5.00
    Flight-Seeing Landing Tours.................            2.26            6.76            5.00            5.00
    Helicopter Landing Tours....................            2.83            8.12            5.00            5.00
    Dog Sled Tours..............................            2.83            4.87            5.00            5.00
    Camping.....................................            4.52            5.68            5.00            5.00
    Road-Based Wildlife Viewing.................            0.57            2.16            5.00            5.00
    Remote Wildlife Viewing.....................            2.83            8.12            5.00            5.00
    Visitor Centers *...........................            0.57            1.62            4.00            1.50
    Over-Snow Vehicle Tours.....................            4.52            4.87           10.00           10.00
    Heli-Skiing Tours...........................            8.76           22.19            5.00           10.00
    Freshwater Fishing..........................            2.83            9.74           10.00           10.00
    Waterfowl and Small Game Hunting (including             5.65           12.99           10.00           10.00
     wolf)......................................
----------------------------------------------------------------------------------------------------------------
                                Fees for big game hunting are charged by the hunt
----------------------------------------------------------------------------------------------------------------
Brown Bear:
    Day Use.....................................          158.27          389.63          625.00          330.00
    Camping.....................................          220.43          497.86          665.00          330.00
Black Bear:
    Day Use.....................................           79.12          119.05          185.00          150.00
    Camping.....................................          135.66          211.05          205.00          150.00
Elk:
    Day Use.....................................             N/A          119.05          220.00          200.00
    Camping.....................................  ..............          211.05          245.00          200.00
Moose:
    Day Use.....................................             N/A          119.05          270.00          200.00
    Camping.....................................  ..............          211.05          300.00          200.00
Mountain Goats and Dali:
    Sheep:
        Day Use.................................          118.70          248.93          220.00          200.00

[[Page 21105]]

 
        Camping.................................          146.95          319.28          245.00          200.00
    Deer:
        Day Use.................................           33.91           70.35          105.00          100.00
        Camping.................................           79.12           92.00          125.00          100.00
----------------------------------------------------------------------------------------------------------------
                                     Equipment services are charged per day
----------------------------------------------------------------------------------------------------------------
Delivery and/or Pick-Up of Motorized and                    6.25            6.76           10.00          10.00
 Nonmotorized Equipment, such as Kayaks, Over-
 Snow Vehicles, and Camping Equipment, to
 National Forest System Lands...................
----------------------------------------------------------------------------------------------------------------
* Visitor center flat fees do not include fees paid by visitors authorized under the Federal Lands Recreation
  Enhancement Act.

Implementation

    The Alaska Region intends to conduct a market review every five 
years to update the land use fees for outfitting and guiding in the 
Region based on a market survey of fees charged by non-federal 
landowners for unguided recreational activities that are comparable to 
those conducted by outfitters and guides in the Alaska Region. As part 
of the market survey, the Alaska Region will evaluate market data 
regarding comparable unguided recreational activities conducted on non-
federal land that are submitted by the outfitting and guiding industry 
and outfitters and guides in the Alaska Region.

Regulatory Certifications

Environmental Impact

    This proposed policy would establish administrative fee categories 
and procedures for calculating permit fees for outfitters and guides 
operating in the Alaska Region of the Forest Service. Section 31.12 
(formerly section 31.1b) of FSH 1909.15 (57 FR 43180, September 18, 
1992) excludes from documentation in an environmental assessment or 
environmental impact statement ``rules, regulations or policies to 
establish Service-wide administrative procedures, program processes or 
instructions.'' The Alaska Region's preliminary assessment is that this 
proposed policy falls within this category of actions and that no 
extraordinary circumstances exist, which would require preparation of 
an environmental assessment or environmental impact statement. A final 
determination will be made on adoption of the final policy.

Regulatory Impact

    This proposed policy has been reviewed under USDA procedures and 
Executive Order 12866 on regulatory planning and review. It has been 
determined that this not a significant policy. The proposed policy 
could not and might not reasonably be anticipated to lead to an annual 
effect of $100 million or more on or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or state, local, or tribal 
governments or communities; create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency; raise 
novel legal or policy issues; or materially alter the budgetary impact 
of entitlements, grants, user fees, or loan programs or the rights or 
obligations of beneficiaries of those programs. Accordingly, this 
proposed policy is not subject to OMB review under Executive Order 
12866, as amended by Executive Order 13422.
    This proposed policy has also been considered in light of the 
Regulatory Flexibility Act, as amended (5 U.S.C. 601 et seq.). The 
revised proposed flat fee policy would affect a substantial number of 
small entities. However, the impact on those entities would not be 
significant. The proposed fee increases are not significant when 
compared to the amounts charged by these entities to their clients and 
could readily be absorbed. Accordingly, the revised proposed flat fee 
policy would not affect the competitive position of small entities in 
relation to large entities, nor would the revised proposed flat fee 
policy substantially affect small entities' cash flow, liquidity, or 
ability to remain in the market. In addition, the revised proposed flat 
fee policy would not impose new record-keeping requirements on small 
business holders of special use authorizations. To the contrary, the 
greater efficiency and consistency achieved by the revised proposed 
policy in simplifying the fee categories and the method for updating 
fees would benefit both outfitters and guides in the Alaska Region and 
the Forest Service. Therefore, no further analysis is required under 
the Regulatory Flexibility Act.

No Takings Implications

    This proposed policy has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630. It has been 
determined that the proposed policy would not pose the risk of a taking 
of private property.

Civil Justice Reform

    This proposed policy has been reviewed under Executive Order 12988 
on civil justice reform. If this proposed policy were adopted, (1) all 
state and local laws and regulations that are in conflict with this 
proposed policy or which would impede its full implementation would be 
preempted; (2) no retroactive effect would be given to this proposed 
policy; and (3) it would not require administrative proceedings before 
parties may file suit in court challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538) which the President signed into law on March 22, 
1995, the Alaska Region has assessed the effects of the proposed policy 
on state, local, and tribal governments and the private sector. This 
proposed policy would not compel the expenditure of $100 million or 
more by any state, local, or tribal government or anyone in the private 
sector. Therefore, a statement under Section 202 of the act is not 
required.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The Alaska Region has considered this proposed policy directive 
under the requirements of Executive Order 13132 on federalism and has 
determined that the proposed policy would conform with the federalism 
principles set out in

[[Page 21106]]

this Executive Order; would not impose any compliance costs on the 
States; and would not have substantial direct effects on the States, 
the relationship between the Federal government and the States, or the 
distribution of power and responsibilities among the various levels of 
government. Therefore, the Alaska Region has determined that no further 
assessment of federalism implications is necessary.
    Moreover, this proposed policy would not have Tribal implications 
as defined by Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments,'' and therefore advance consultation 
with Tribes is not required.

Energy Effects

    This proposed policy has been reviewed under Executive Order 13211 
of May 18, 2001, Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use.'' It has been determined 
that this proposed policy would not constitute a significant energy 
action as defined in the Executive Order.

Controlling Paperwork Burdens on the Public

    This proposed policy does not contain any record-keeping or 
reporting requirements or other information collection requirements as 
defined in 5 CFR part 1320 that are not already required by law or not 
already approved for use. The information collection being requested as 
a result of this action has been approved by OMB. Accordingly, the 
review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.) and implementing regulations at 5 CFR part 1320 do not 
apply.

    Dated: April 10, 2008.
Paul K. Brewster,
Deputy Regional Forester, Alaska Region.
[FR Doc. E8-8239 Filed 4-17-08; 8:45 am]
BILLING CODE 3410-11-M