Notice of Final Flat Fee Policy for Outfitting and Guiding Land Use Fees in the Alaska Region, 55022-55027 [E8-22424]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 73, Number 186 (Wednesday, September 24, 2008)]
[Notices]
[Pages 55022-55027]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-22424]


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DEPARTMENT OF AGRICULTURE

Forest Service


Notice of Final Flat Fee Policy for Outfitting and Guiding Land 
Use Fees in the Alaska Region

AGENCY: Forest Service, USDA.

ACTION: Notice of final policy.

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SUMMARY: The Alaska Region of the Forest Service is publishing a final 
regional flat fee policy. The initial proposal was published in the 
Federal Register on September 15, 2006 (71 FR 54454). The revised 
policy published April 18, 2008 (73 FR 21098) differed enough from the 
initial proposed policy to merit public notice and comment.

FOR FURTHER INFORMATION CONTACT: Trish Clabaugh, (907) 586-8855.

SUPPLEMENTARY INFORMATION: 

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 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).
    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 market value of the use of NFS lands for 
outfitting and guiding. The Final Phase II Report

[[Page 55023]]

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).
    On September 15, 2006, the Alaska Region published a notice of a 
proposed 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.
    The initial proposal published on September 15, 2006, was based on 
the modified ARIFFP. The Alaska Region developed the revised proposal 
based on the BUPM and review of comments received on the initial 
proposal; BSR market survey data; recommendations from a working group 
tasked to review comments on the initial proposal; the need to simplify 
administration of the land use fee program in the Alaska Region for 
outfitters and guides and the Forest Service; and application of sound 
business management principles.
    The revised proposal was published in the Federal Register on April 
18, 2008. The Forest Service received 15 comments during the comment 
period, which ended June 2, 2008. This notice addresses those comments 
and establishes the final flat fee policy for outfitting and guiding 
land use fees in the Alaska Region, consistent with The Tongass 
Conservancy case.

Comments Received on the Revised Proposed Flat Fee Policy

Comments Related to Activities

    Comment. One respondent commented that the increased fee for road-
based nature tours is excessive.
    Response. Road-based nature tours visit NFS lands that are similar 
in character to those visited by remote-setting nature tours; they 
differ mainly in their modes of access. The two activities were 
combined in the general recreation group because the market does not 
recognize a high level of stratification in setting fees for general 
recreation. The general recreation activity is consistent with 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. In addition, combining 
nine activities from the initial proposal into one general recreation 
category in the final policy reduces the potential for charging for the 
level of service provided and mode of transportation used to access NFS 
lands and assures greater fairness to a larger segment of outfitters 
and guides.
    Comment. One respondent questioned why the remote-setting nature 
tour fee is higher than the road-based fee.
    Response. Both remote-setting nature tours and road-based nature 
tours are now included in the general recreation category and are 
charged the same fee.
    Comment. One respondent questioned why the fee for over-snow 
vehicle tours was $10, identical to the fee charged for heli-skiing, 
given that the daily rate for heli-skiing is $900, compared to $180 to 
$225 for over-snow vehicle tours, and given that over-snow vehicle 
tours average two to three hours on NFS lands. Another respondent 
stated that over-snow vehicle tours should be included in the general 
recreation category because of their low cost and environmental 
impacts, lack of add-on costs, and short duration on NFS lands.
    Response. The difference in price charged for over-snow vehicle and 
heli-skiing tours is primarily a function of the cost of transporting 
guests to NFS lands and is not attributable to significant differences 
in the quality or quantity of NFS lands used. A higher land use fee for 
helicopter skiing and over-snow vehicle tours than for general 
recreation is justified because of the more limited amount of NFS lands 
available for safe motorized winter sports. The $10 fee is consistent 
with market observations of prices charged for unguided off-road motor 
sports, as reported in the BSR market survey (Final Phase II Report at 
26). The market does not differentiate between partial day and whole 
day use. Under the Independent Offices Appropriations Act of 1952, 
Office of Management and Budget 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 is not appropriate to 
take into account the resource impacts of outfitting and guiding 
activities in setting land use fees.
    Comment. One respondent commented that the fee for general 
recreation should be $4.00, rather than $5.00, and questioned the 
Forest Service's determination that a charge of $5.00 per day is fair 
based upon available market data for unguided use.
    Response. BSR prepared an Interim Phase II report dated July 12, 
2002. Additional market data were used for the Final Phase II Report 
dated August 5, 2003. Based on reconciliation of available market data 
for unguided uses, the Final Phase II Report concludes that a fee of 
$5.00 per day is appropriate for general recreation use (Final Report 
Phase II at 23). The Final Phase II Report further states that the 
market does not distinguish between partial days and whole days, the 
point of origin, or the mode of transportation used to conduct an 
activity.
    Comment. One respondent commented that freshwater fishing should be 
categorized with general recreation because fish-bearing streams are 
not limited in supply in Alaska, and there is not a high demand for 
Forest Service outfitting and guiding permits for freshwater fishing.
    Response. According to the BSR market survey, the value of an 
individual unit of unguided use for fishing in the Alaska Region is $10 
per day (Final Phase II Report at 27). In general, in the Alaska 
Region, in comparison with NFS lands available for general recreation, 
NFS lands available for freshwater fishing in streams where a guide 
would take a client for a quality experience are more limited in extent 
than other general recreation uses.

Short-Stop Fees

    Comment. One respondent stated that his use qualifies for a short-
stop fee.
    Response. Short-stop fees are charged for trips that use NFS lands 
incidental to the purpose of the trip (Forest Service Handbook (FSH) 
2709.11, sec. 37.05). The attraction of the Chugach and Tongass 
National Forests is not incidental to the purpose of outfitted and 
guided trips in Alaska. In general, nonfederal landowners charge the 
same rate for unguided recreational uses, regardless of the time per 
day spent on their lands. Therefore, the Alaska Region believes that a 
short-stop fee is not appropriate for outfitting and guiding land uses 
in Alaska.

Comments Related to Fees Charged

    Comment. One respondent questioned how the Forest Service balances 
the market value of an activity with charging similar fees for similar 
activities, using as an example black and brown bear hunting, which are 
similar activities, but are charged different fees. The respondent also

[[Page 55024]]

asked how big game hunting fees are determined.
    Response. The fees charged for big game hunting depend on the 
relative scarcity of NFS lands available for hunting particular 
species. For example, in the Alaska Region, the amount of NFS lands 
available for trophy coastal brown bear hunting is much smaller than 
the amount of NFS lands available for black bear hunting. Thus the fee 
for brown bear hunting is proportionally higher than the fee for black 
bear hunting. Deer habitat is the most plentiful of any habitat for big 
game species in the Alaska Region. The BSR market survey supports a fee 
for an unguided, multi-day deer hunt of approximately $100. Due to the 
more limited market data, the fees for the other big game species are 
derived from the ratio between the tag fee charged by the Alaska 
Department of Fish and Game for each species and the fees for the 
corresponding species reflected in the BSR market survey (Final Phase 
II Report at 41-53). These ratios are further supported by ratios of 
per hunt revenues for the big game species reported by outfitters and 
guides in 2002.
    Comment. One respondent stated that the fees for outfitters and 
guides operations are unreasonably high.
    Response. The Alaska Region developed the final fee policy for 
outfitting and guiding based review of comments received on the revised 
proposal; BSR market survey data; recommendations from a working group 
tasked to review comments on the initial proposal; the need to simplify 
administration of the land use fee program in the Alaska Region for 
outfitters and guides and the Forest Service; and application of sound 
business management principles.
    Comment. One respondent noted that it is not sound business 
practice to charge the same fee to both small and large businesses, 
which have a large disparity in the cost of their tours.
    Response. The Forest Service is directed by The Tongass Conservancy 
ruling to devise a fee schedule ``that is fair and will not result in 
the assessment of disparate fees charged TTC and other similarly 
situated users for similar use of National Forest lands.'' The Tongass 
Conservancy, slip op. at 8. The differences in fees charged for the 
different activities in the final flat fee policy are a function of the 
characteristics of the NFS lands used for those activities and the 
value of comparable unguided recreational uses. The fees in the final 
flat fee policy are not tied to outfitters' and guides' gross revenues, 
which in the Alaska Region are often a function of the cost to 
transport clients to NFS lands and the different level of services 
provided by outfitters and guides. Basing the flat fees on the costs of 
outfitters and guides in the Alaska Region would result in disparate 
fees for similar uses of NFS lands, and therefore would not be 
consistent with The Tongass Conservancy ruling.

Fees Charged For Multiple Activities

    Comment. One respondent stated that hunts for multiple species 
should continue to be charged a fee only for the species with the 
highest fee. Another respondent stated that for big game hunting, the 
Forest Service should charge the full fee for the species with the 
highest fee and charge a reduced fee for all other species involved.
    Response. Fees for hunts involving multiple species will be charged 
only for the species with the highest fee. For example, an outfitter 
and guide authorized to conduct hunts for both brown bear and deer will 
be charged a fee only for brown bear hunting when the hunt includes 
both species.
    Comment. One respondent questioned how the fees will be determined 
if they are based on actual use reports and how prepayment will be 
determined if more than one activity is authorized under a permit. 
Another respondent wanted clarification on determination of the fee 
when an outfitter or guide is authorized to conduct multiple activities 
on the same day.
    Response. The current practice of prepayment of outfitter and guide 
fees based on the total amount of use authorized in permits will not 
change. If an outfitter or guide is authorized for more than one 
activity, estimates of use will be based on past actual use records or 
anticipated use.
    When an outfitter or guide conducts more than one authorized 
activity on a given day, the Alaska Region charges the outfitter or 
guide only one fee, and that fee is whatever activity has the highest 
fee. For example, if an outfitter or guide conducts hiking and 
freshwater fishing, the fee will be the charge for freshwater fishing, 
since it is higher than the fee for hiking (which is included in 
general recreation).

Comments Requesting Clarification

    Comment. The State of Alaska requested clarification of the Alaska 
Department of Fish and Game's responsibility for maintaining the 
sustainability of fish and wildlife pursuant to section 1314 of Alaska 
National Interest Lands Conservation Act (ANILCA) and affirmation of 
the fact that the fees in the revised policy will not diminish that 
responsibility.
    Response. Nothing in the final flat fee policy diminishes the 
State's responsibility for managing fish and wildlife in Alaska's 
National Forests pursuant to section 1314 of ANILCA. The Alaska Region 
affirms that responsibility in Forest Service Manual Supplement 
2323.32, which states that ``the taking of fish and wildlife shall be 
conducted in accordance with the provisions of ANILCA, Section 1314, 
and other applicable State and Federal laws.''

Basis of Forest Service Fees

    Comment. Some respondents stated that the purpose of land use fees 
is to cover administrative costs and help the Service offset any 
impacts that activities may have on the land.
    Response. Under the Independent Offices Appropriations Act of 1952, 
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. 
Forest Service regulations state that the fees charged to outfitters 
and guides are ``based on the fair market value of the rights and 
privileges authorized, as determined by appraisal or other sound 
business management principles'' [36 CFR 251.57(a)(1)]. Therefore, it 
would not be appropriate to take into account the impacts of outfitting 
and guiding activities in setting land use fees.

Implementation

    Comment. Some respondents suggested a phased-in implementation for 
the fee policy. One respondent believed that the proposed flat fee 
system would pose an undue burden for lower-priced tour operators. 
Another respondent requested a waiver or reduced fee for outfitting and 
guiding services that were contracted prior to implementation of the 
fee policy.
    Response. The Forest Service is delaying implementation of the 
final flat fee policy until January 1, 2010, to give outfitters and 
guides in the Alaska Region time to make price adjustments based on the 
policy. Once it is implemented, the fee schedule in the final policy 
will be updated in accordance with the Implicit Price Deflator-Gross 
Domestic Product (IPD) and periodic market surveys of unguided land use 
fees.

Comparison of the Current and Final Outfitting and Guiding Land Use 
Fees

    Table 1 displays the Alaska Region outfitting and guiding 
activities in

[[Page 55025]]

column 1. The activities that are shown in bold are the final flat fee 
policy activities. Column 2 shows the 2008 fees charged for those 
activities. The fees for the final policy for outfitting and guiding 
land use in the Alaska Region that will be effective January 1, 2010, 
are shown in column 3. These fees apply to both temporary and priority 
use permits. The minimum fee for outfitting and guiding, regardless of 
the size of their business, is $100.
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Implementation

    The final land use fee policy will become effective January 1, 
2010. The Alaska Region intends to conduct a market review 
approximately every five years to update the land use fees for 
outfitting and guiding 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 will establish administrative fee categories 
and procedures for calculating land use fees for outfitters and guides 
operating in the Alaska Region of the Forest Service. Section 31.12 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 final policy falls 
within this category of actions and that no extraordinary circumstances 
exist that would require preparation of an environmental assessment or 
environmental impact statement.

Regulatory Impact

    This final policy has been reviewed under USDA procedures and 
Executive Order 12866 on regulatory planning and review. The Office of 
Management and Budget has determined that this not a significant 
policy. The final policy cannot and may 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 final policy is not subject to OMB 
review under Executive Order 12866, as amended by Executive Order 
13422.
    This final policy has also been considered in light of the 
Regulatory Flexibility Act, as amended (5 U.S.C. 601 et. seq.). The 
final policy will affect a substantial number of small entities. 
However, the impact on those entities will not be significant. The 
final fee increases are not significant when compared to the amounts 
charged by these entities to their clients and can readily be absorbed. 
Accordingly, the final policy will not affect the competitive position 
of small entities in relation to large entities, nor will the final 
policy substantially affect small entities' cash flow, liquidity, or 
ability to remain in the market. In addition, the final policy will 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 final policy in simplifying the fee 
categories and the method for updating fees will 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 final policy has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630. The Alaska 
Region has determined that the final policy will not pose the risk of a 
taking of private property.

Civil Justice Reform

    This final policy has been reviewed under Executive Order 12988 on 
civil justice reform. Upon adoption of the final policy, (1) all state 
and local laws and regulations that are in conflict with this final 
policy or that will impede its full implementation will be preempted; 
(2) no retroactive effect will be given to this final policy; and (3) 
it will 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 final policy on 
state, local, and tribal governments and the private sector. This final 
policy will 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 final policy under the 
requirements of Executive Order 13132 on federalism and has determined 
that the final policy conforms with the federalism principles set out 
in this Executive Order; will not impose any compliance costs on the 
States; and will 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 final policy will 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 final policy has been reviewed under Executive Order 13211 of 
May 18, 2001, ``Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use.'' The Alaska Region has 
determined that this final policy will not constitute a significant 
energy action as defined in the Executive Order.

Controlling Paperwork Burdens on the Public

    This final 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 its implementing regulations at 5 CFR part 1320 do not apply.

    Dated: September 11, 2008.
Paul K. Brewster,
Deputy Regional Forester Alaska Region.
[FR Doc. E8-22424 Filed 9-23-08; 8:45 am]
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