[Federal Register: April 18, 2008 (Volume 73, Number 76)]
[Notices]
[Page 21098-21106]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18ap08-26]
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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