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Next Steps
Recognizing that the Forest Service
has not decided whether it will seek
certification, the following are relevant
considerations:
The FSC Federal Lands Policy
establishes three criteria to be met
before any new Federal land system
such as the NFS could seek certification.
In summary, the criteria are a willing
landowner (the Forest Service), a
determination that public consensus
exists regarding management of the
NFS, and the development of a set of
standards specific to each category of
Federal forestland (Forest Service,
Bureau of Land Management, etc.).
Because the Forest Service has not
determined whether it will seek
certification, FSC has not yet
determined whether, how or when they
will address these criteria for the Forest
Service.
SFI has indicated that it would
welcome NFS participation in SFI
certification. A landowner seeking SFI
certification must formally commit to
reporting and management measures
specific to the SFI Program. How and
whether the Forest Service could make
these commitments would also need to
be determined.
A public outreach effort is now
underway to obtain public and
stakeholder views on the outcomes of
the National Forest Certification Study
and the potential implications of NFS
certification in general. Once this effort
is completed, the Forest Service will
evaluate its options and determine how
to proceed.
Dated: September 10, 2008.
Charles L. Myers,
Associate Deputy Chief, NFS.
[FR Doc. E8–21611 Filed 9–16–08; 8:45 am]
BILLING CODE 3410–11–P
DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596–AC50
Final Directives for Forest Service
Outfitting and Guiding Special Use
Permits and Insurance Requirements
for Forest Service Special Use Permits
Forest Service, USDA.
Notice of final directives;
response to public comment.
AGENCY:
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ACTION:
SUMMARY: The Forest Service is revising
directives governing special use permits
for outfitting and guiding conducted on
National Forest System lands by
simplifying the application and
administrative process; establishing a
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flat land use fee for temporary use
permits; developing a process for
allocation of use on a first-come, firstserved or lottery basis for temporary use
permits to facilitate greater participation
in outfitting and guiding by youth,
educational, and religious groups;
offering the same terms and conditions
to educational and institutional permit
holders as offered to other types of
permit holders when they operate as a
business; and clarifying policy for
priority use permits governing
performance, inspections, and
allocation of use. In addition, the Forest
Service is revising the directives
governing insurance requirements for
Forest Service special use permits.
Public comment was considered in the
development of the final directives, and
a response to comments is included in
this notice.
DATES: Effective Date: These directives
are effective October 17, 2008.
ADDRESSES: The record for these final
directives is available for inspection at
the office of the Director, Recreation,
Heritage, and Volunteer Resources Staff,
USDA, Forest Service, 4th Floor Central,
Sidney R. Yates Federal Building, 1400
Independence Avenue, SW.,
Washington, DC, during regular
business hours (8:30 a.m. to 4 p.m.),
Monday through Friday, except
holidays. Those wishing to inspect these
documents are encouraged to call ahead
at (202) 205–1426 to facilitate access to
the building. Copies of documents in
the record may be requested under the
Freedom of Information Act.
FOR FURTHER INFORMATION CONTACT:
Carolyn Holbrook, (202) 205–1426,
Recreation, Heritage, and Volunteer
Resources Staff.
SUPPLEMENTARY INFORMATION:
Table of Contents
1. Background and Need for the Final
Directives
2. Public Comments on the Proposed
Directives and Agency Responses
• Overview of Comments
• Response to General Comments
• Response to Comments on Specific
Sections of the Directives
FSH 2709.11, section 41.53
FSH 2709.11, section 37.21b
FSM 2713.1
• Response to Comments on Regulatory
Certifications in the Proposed Directives
3. Summary of Revisions to the Final
Directives
4. Regulatory Certifications for the Final
Directives
• Environmental Impact
• Regulatory Impact
• No Taking Implications
• Civil Justice Reform
• Federalism and Consultation and
Coordination with Indian Tribal
Governments
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• Energy Effects
• Unfunded Mandates
• Controlling Paperwork Burdens on the
Public
5. Access to the Final Directives
1. Background and Need for the Final
Directives
Outfitting and guiding conducted on
National Forest System lands have
become one of the chief means for the
recreating public to experience the
outdoors. The Forest Service
administers approximately 5,000
outfitting and guiding permits,
authorizing activities ranging from
guided hunting and fishing trips to jeep
tours and outdoor leadership programs.
The agency anticipates that outfitting
and guiding will increase in importance
as the public’s desire for use of Federal
lands increases and as the agency
encourages use by increasingly diverse
and urban populations, many of whom
may lack the equipment and skills
necessary in the outdoors. Therefore,
agency policy needs to reflect the
public’s demand for services while
incorporating standard business
practices and sustaining the natural
environment in which these activities
occur.
Except for the revision to term length
for priority use permits (April 14, 2005,
70 FR 19727), outfitting and guiding
directives have remained relatively
unchanged since they were finalized in
1995. Since that time, proposed
legislation and field implementation of
current policy have shown the need for
updating the directives. The changes
adopted will be incorporated as
appropriate in the standard special use
permit for outfitting and guiding, form
FS–2700–4i, and other applicable forms.
In addition, the Forest Service is
updating direction on the minimum
amount of insurance coverage required
for special use permits generally,
including outfitting and guiding
permits.
2. Public Comments on the Proposed
Directives and Agency Responses
Overview of Comments
The proposed directives were
published in the Federal Register for
public notice and comment on October
19, 2007 (72 FR 59246). The Forest
Service received several requests for
extension of the comment period and
published two notices, each of which
extended the comment period (72 FR
71113; December 14, 2007, and 73 FR
8264; February 13, 2008). The comment
period closed on March 20, 2008.
The Forest Service received
approximately 480 comments on the
proposed directives. Respondents fell
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into the following categories: Unguided
recreation—249; camps and youth
organizations—20; universities—11;
nonprofit outfitters and guides—4; state
agencies and officials—5; state outfitting
and guiding associations—13; national
outfitting and guiding associations—5;
and commercial outfitters and guides—
173.
Response to General Comments
Comments. One respondent opposed
the proposed changes in their entirety
and stated that the directives should be
withdrawn.
A number of respondents opposed the
proposed directives because they
perceived them as granting exclusive
access to National Forest System (NFS)
lands to commercial outfitters and
guides at the expense of the unguided
public and without the opportunity for
public input.
Another respondent believed that the
proposed directives were seriously
flawed because the Forest Service did
not collaborate with the outfitting and
guiding industry in their development,
which rendered them unworkable.
Another respondent recommended that
the Forest Service consider meeting
with key interested parties to ensure
that the final directives provide a
balance for the needs of parties seeking
permits.
Another respondent recommended
that the proposed directives be revised
and republished for public notice and
comment. One respondent supported
the inclusion of resource protection in
the overall objectives of the proposed
directives.
One respondent expressed support for
most of the proposed directives and
viewed them as enhancing the
relationship between the Forest Service
and outfitters and guides.
Response. The Forest Service
disagrees that these directives should be
withdrawn in their entirety. The
outfitting and guiding program is not
new, and the Forest Service has many
years of experience managing these
services. The changes that will result
from implementing these directives can
be characterized as enhancement of the
existing program. The directives will
not significantly change the types or
quantities of public services that are
being provided. The directives will
improve access to recreational
experiences to some underserved groups
and will provide a more secure business
opportunity for those who intend to
conduct ongoing operations. The Forest
Service believes that these directives
address resource protection more
effectively than current policy, but does
not believe that inclusion of resource
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protection in the objectives section of
the directives is appropriate as it is not
their principal focus.
Forest Service special use permits do
not grant exclusive use (36 CFR
251.55(b)).
The Forest Service followed
appropriate procedures for public
involvement under the Administrative
Procedure Act in developing and
issuing these final directives.
Many respondents recommended
changes to specific sections of the
proposed directives. The agency is
making some changes to the proposed
directives in response to these
comments. Therefore, additional public
notice and comment are unnecessary.
Some of the comments were outside the
scope of the proposed directives.
Response to Comments on Specific
Sections of the Directives
FSH 2709.11, section 41.53
41.53a—Authorities
Comments. Several respondents
believed that the Federal Lands
Recreation Enhancement Act (REA)
should not be used as the authority for
issuing outfitting and guiding permits
because doing so would provide an
incentive to increase commercial use of
Federal lands.
Response. The agency believes that
REA is an appropriate authority for
authorizing outfitting and guiding on
Federal lands. REA authorizes the
Forest Service to issue special recreation
permits for specialized recreation uses
of Federal recreational lands and waters,
such as group activities, recreation
events, and motorized recreational
vehicle use (16 U.S.C. 6802(h)).
Outfitting and guiding is a specialized
recreation use. This authority has been
used since December 2004 by both the
Forest Service and Bureau of Land
Management (BLM) for outfitting and
guiding permits. The Forest Service
does not see any incentive in REA’s
special recreation permit authority for
increasing commercial use of Federal
lands.
41.53b—Objectives
Comments. Several respondents
observed that the Forest Service should
recognize the important role educational
providers play in furthering the agency’s
management goals. These respondents
noted that nearly all university outdoor
programs attempt to provide
educational and developmental
experiences for students that differ from
the intent and purpose of commercial
outfitting and guiding. These
respondents recommended adding a
new objective to encourage outfitting
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and guiding services that facilitate
greater participation by youth,
educational, and religious groups
through improved access to temporary
use permits and assignment of priority
use to institutional permit holders.
Another respondent believed that the
Forest Service should be more proactive
in assisting universities in finding
wilderness areas that can support more
outfitters and guides, for example, by
providing a list of national forests that
can issue more outfitting and guiding
permits. This same respondent stated
that Forest Service employees appear to
be reluctant to work with universities
that want to conduct outfitting and
guiding.
Response. The Forest Service agrees
that it is important to recognize the
contribution made by educational
outfitters and guides. Accordingly, in
the final directives, the Forest Service
has added an objective in section
41.53b, paragraph 2, that states:
‘‘Facilitate greater participation in the
outfitting and guiding program by
organizations and businesses that work
with youth and educational groups.’’
The agency does not believe that it
would be appropriate for the directives
to address assistance to universities in
finding suitable wilderness areas for
outfitting and guiding. Interested parties
should work with administrative units
and regions to determine available
opportunities.
41.53c—Policy
Comments. One respondent stated
that a goal of the directives should be
to broaden the spectrum of services and
service providers able to meet the
demand for guided services. Several
respondents believed that
administrative units should take more
initiative in evaluating the demand for
new recreation and guiding
opportunities.
Response. While the Forest Service
agrees that broadening the spectrum of
services and providers may be
appropriate, the agency believes that it
is best to make this determination case
by case through a needs assessment,
rather than to state that it is always
appropriate. Additionally, it is not
possible to authorize new activities
without reviewing proposals and
applications and conducting
environmental analysis.
Comments. One respondent
supported proposed section 41.53c,
paragraph 2, which addresses
authorization of permitted access routes.
Another respondent questioned what
was meant by this term.
Response. The Forest Service added
the following definition in section
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41.53d for permitted access route: ‘‘Any
road or trail that a holder is authorized
to use under an outfitting and guiding
permit or operating plan for purposes of
pedestrian, stock, or vehicular access.’’
Comment. One respondent suggested
revising section 41.53c, paragraph 3, to
be consistent with the Wilderness Act.
This respondent suggested prohibiting
any development or permanent
improvements in wilderness areas and
stated that the proposed wording was
insufficient to meet the intent of the
Wilderness Act by allowing
improvements in wilderness areas. The
respondent suggested that the wording
in the current directives at section
41.53b, paragraph 3, be retained and
that no development, improvements,
installations, or caches be allowed in
wilderness areas for the purpose of
convenience to the holder or the
holder’s clients in order to preserve the
areas’ wilderness character.
Response. The Forest Service agrees
with the respondent that the current
language in section 41.53b, paragraph 3,
is more consistent with the Wilderness
Act and more accurately reflects the
agency’s intent with regard to
improvements in wilderness areas.
Therefore, the agency has revised
proposed section 41.53b, paragraph 3, to
restore the wording in the current
directives.
Comment. One respondent suggested
adding ‘‘other types of permit holders’’
to proposed section 41.53c, paragraph 4,
and using this provision to involve
outfitters and guides in developing
thresholds for allocation of priority use.
Response. The Forest Service has
added the phrase ‘‘other interested
parties’’ to the list of individuals and
entities in section 41.53c, paragraph 4,
with whom the Forest Service will work
to encourage outfitters’ and guides’
compliance with applicable law.
Comment. One respondent supported
the content of proposed section 41.53c,
paragraph 6, regarding not issuing
permits to applicants with no tangible
assets.
Response. The Forest Service agrees
that outfitting and guiding permits
should not be issued to applicants with
no tangible assets.
41.53d—Definitions
Comments—Allocation of Use. One
respondent suggested that the agency
modify the definition of allocation of
use to add allocation-free systems where
the unguided public as well as outfitters
and guides would compete equally for
limited use from a common pool.
Several respondents recommended
adding a definition for ‘‘common pool’’
or ‘‘allocation-free use’’ to clarify that a
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common pool is open to the unguided
public.
Response. The management of use by
the unguided public is beyond the scope
of these directives. See the response to
comments on proposed section 41.53e
for further detail.
Comments—Commercial Use or
Activity. One respondent agreed that
intent to make a profit is irrelevant to
the determination of whether a use or
activity is commercial. However, this
respondent believed that further
clarification is necessary regarding the
meaning of ‘‘entry or participation fee.’’
Another respondent recommended
revisiting the definition of commercial
use or activity and stated that tuition for
educational guiding should not be
viewed as the sale of a product. Another
respondent suggested adopting a more
detailed definition of commercial use or
activity, based on the BLM’s definition
in its policy.
Response. The Forest Service does not
believe that modification of the
definition for commercial use or activity
is warranted. The definition for this
term in the Forest Service’s directives is
the same as the definition in the
agency’s regulations at 36 CFR 251.51
and is consistent with BLM’s definition.
In addition, the definition for
commercial use or activity was not
proposed for revision and is therefore
beyond the scope of the proposed
directives. Finally, current policy at
FSH 2709.11, section 37.21k, provides
that tuition is excluded from revenue for
purposes of calculating land use fees for
outfitting and guiding.
Comments—Concessionaire. One
respondent noted that the term
‘‘concessionaire’’ as used in Forest
Service Manual (FSM) 2713.1 governing
insurance is not included in the
definitions for the outfitting and guiding
directives. Another respondent wanted
clarification of the term
‘‘concessionaire.’’
Response. A definition for
concessionaire has been added to the
final directives.
Comments—Educational Outfitting.
Several respondents suggested defining
educational outfitter and guide
separately from outfitter and guide, as
follows: ‘‘An organization that in
conducting outfitting and guiding
furthers the public interest and that is
either a tax-exempt or governmental
entity.’’ These respondents believed that
since educational outfitters and guides
spend most of their time providing
educational services, they should be
differentiated from other outfitters and
guides, who do not typically provide
educational services. These respondents
also believed that they should not be
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included in the definition of
commercial use or activity.
Response. The Forest Service believes
that it is not necessary or appropriate to
create a new category of use for
educational outfitters and guides. The
definition of outfitting and guiding in
the directives matches the definition of
those terms in the agency’s regulations
at 36 CFR 251.51. Arguably, all
outfitters and guides further the public
interest, in that without their services,
some recreational activities and
amenities would be beyond the reach of
many members of the public. The
agency does not believe that outfitters’
and guides’ non-profit status determines
whether they derive revenue from the
services they provide. Under current
directives in Forest Service Handbook
(FSH) 2709.11, section 37.21k, tuition
charged for a program for which
students earn credit is excluded from
revenue for purposes of calculation of
the land use fee for outfitting and
guiding. Finally, the definitions for
outfitting and guiding were not
proposed for revision and are therefore
beyond the scope of the proposed
directives.
Comments—Interim Temporary Use.
One respondent recommended adding
the following definition for interim
temporary use: ‘‘For permits that are
subject to conversion to priority use,
temporary use may be authorized for up
to five, one-year terms with no limits on
the amount of use assigned to the permit
until the interim temporary use permits
can be converted to priority use status.
The permits may include a clause that
allows the use to roll over for each year
if no significant performance, financial,
safety, or resource protection issues are
found. Use may be adjusted from year
to year as may be appropriate for
resource conditions. Use pools for
temporary use may also be established
in accordance with 41.53j (revised).’’
Several respondents suggested the
following definition: ‘‘Authorization of
use for a trial two-year term for a new
outfitter with no prior experience prior
to issuance of a priority use permit for
a full ten-year-term.’’
Response. The Forest Service agrees
that a definition is needed for temporary
use permits that may be eligible for
conversion to priority use permits, but
prefers the term ‘‘transitional priority
use,’’ which is more descriptive of the
future use contemplated. Consequently,
the agency has added the following
definition in the final directives:
‘‘Transitional Priority Use. Interim
redesignation of temporary use as
classified under the Forest Service’s
June 12, 1995, outfitting and guiding
policy (60 FR 30830), for holders who
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meet all the requirements in section
41.53p.
Comments—Needs Assessment. One
respondent recommended modifying
the definition of needs assessment to
include assessment of public demand
for commercial services in relation to
public demand for unguided use.
Additionally, some respondents stated
that excess use should be allocated
through a common pool open to the
unguided public, as well as to
commercial outfitters and guides.
Response. The Forest Service
generally does not allocate
noncommercial use. To the extent
noncommercial use is allocated (for
example, in wilderness areas through
restrictions on the number of people at
one time in an area), that type of
allocation is beyond the scope of these
directives. Therefore, the proposed
modification of the definition of a needs
assessment and the proposed allocation
of excess outfitting and guiding use are
not appropriate.
Comment—Nonrecurring Temporary
Use and Nonrecurring Temporary Use
Pool. One respondent suggested adding
the following definition for
nonrecurring temporary use:
‘‘Authorization of a minor, nonrecurring outfitting or guiding activity
for 1 season or less from non-recurring
use pools,’’ and the following definition
for non-recurring temporary use pool:
‘‘A pool established for non-recurring
temporary uses. The amount of use
assigned to the pool may be based on
the general availability of capacity at a
resource but without reducing
allocations from any user segment.’’
Response. The Forest Service believes
that the proposed definitions are
unnecessary because they would be
redundant with the definition of
temporary use.
Comment—Outfitter. One respondent
recommended dropping or clarifying the
phrase ‘‘for other gain’’ in this definition
because it is ambiguous.
Response. The agency believes that
the phrase ‘‘for other gain’’ is clear.
‘‘Other gain’’ in this context means any
value other than cash, such as barter,
received by holders in exchange for
services they provide on NFS lands. The
Forest Service considers cash and other
gain obtained by concessionaires in
exchange for their services in
determining and auditing their land use
fee.
Comments—Priority Use. One
respondent supported the definition of
priority use. Another respondent
recommended that the term ‘‘priority
use’’ be changed to ‘‘commercial use’’
and that the permit term for priority use
be limited to 5 years.
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Response. The Forest Service is
retaining the term ‘‘priority use’’ to
describe long-term allocations of use for
outfitting and guiding. After many years
of use, affected parties are familiar with
the term. In addition, the term
‘‘commercial use’’ would be ambiguous
because all Forest Service outfitting and
guiding permit holders are commercial.
The term ‘‘priority use’’ refers to a
subset of those outfitters and guides
who have a long-term allocation of use.
Outfitting and guiding permit terms are
addressed in the response to comments
on proposed section 41.53l.
Comment—Priority Temporary Use.
One respondent wanted to add the
following definition for priority
temporary use: ‘‘Authorization of a
minor outfitting or guiding activity for
1 season or less that may be authorized
from priority temporary use pools,’’ and
the following definition for priority
temporary use pool: ‘‘A pool that may
be established for access by priority use
permittees from redistribution of
unutilized use allocations from priority
use permittees, consistent with the
provisions in 41.53l. Use may also be
contributed voluntarily to the pool by
priority use permittees.’’
Response. The Forest Service has
added a section entitled, ‘‘Management
of Priority Use Pools’’ that addresses
temporary allocation of use to priority
use permit holders. Therefore, the
proposed definitions are unnecessary.
Comments—Quota. One respondent
supported the definition of quota.
Another respondent suggested adding
‘‘per year’’ as another unit of measure
for use allocations.
Response. The phrase ‘‘or other unit
of measure’’ in the definition is broad
enough to include ‘‘per year’’ if that unit
of measure were appropriate. However,
allocations per year are unlikely because
they generally would not provide
sufficient specificity.
Comment—Renewal. One respondent
supported the definition of renewal.
Response. The Forest Service has not
proposed changes to and is not changing
the definition for renewal.
Comment—Resource Capacity. One
respondent supported including the
definition for resource capacity, since
determining resource capacity is critical
for protecting national forest resources.
Response. The Forest Service agrees
that the definition for resource capacity
is warranted.
Comments—Service Day. One
respondent recommended striking the
phrase ‘‘multiplied by the number of
clients on the trip’’ because it confuses
the concept of a service day with trip
capacity. Another respondent
recommended simplifying the definition
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of a service day, for example, by
allocating use for river outfitters and
guides in launches, rather than service
days.
Response. The agency agrees that the
proposed definition of service day was
confusing and has corrected the last
sentence of the definition to read: ‘‘The
total number of service days is
calculated by multiplying each service
day by the number of clients on the
trip.’’ The directives provide that use
may be allocated in service days or
quotas. Since launches are a type of
quota, use may be allocated in launches,
if appropriate.
Comments—Temporary Use. One
respondent proposed replacing the
definition of temporary use with 5 new
terms: Non-recurring temporary use,
non-recurring temporary use pool,
priority temporary use, priority
temporary use pool, and interim
temporary use. Another respondent
believed that the definition for
temporary use was inappropriate given
the lack of viable means for converting
temporary use to priority use.
Response. The agency believes that
these proposed definitions are
unnecessary and that the definitions for
temporary use and temporary use pool
adequately address the concepts
covered by the proposed definitions.
The comment regarding conversion of
temporary use to priority use is
addressed in the response to comments
on section 41.53p, Transitional Priority
Use.
41.53e—Needs Assessment, Resource
Capacity Analysis, and Allocation of
Use
Comments Concerning Scope. One
respondent stated that it was
unfortunate that the agency was not
including in these provisions members
of the recreating public who do not
utilize outfitting and guiding services.
Many respondents were concerned that
the directives would give an advantage
to commercial outfitters over members
of the unguided public. Others
suggested that when competitive
interest exists for the same resources or
type of use or when significant changes
are being considered to current use or
demand, a common pool should be
established for the distribution of
outfitting and guiding permits for all
recreational use groups. One respondent
proposed that the Forest Service
evaluate public demand for unguided
recreation before evaluating any need
for new or increased commercial
outfitting and guiding services. One
respondent stated that all users of the
national forests should be able to
compete equally. Another respondent
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proposed a common pool for allocation
of permits that would be open equally
to unguided recreationists as well as
outfitters and guides and issuance of
commercial outfitting and guiding
permits without an allocation of use.
Several respondents suggested
allocating use in service days or quotas
for unguided as well as guided use,
following a resource capacity analysis.
One respondent stated that allocation of
use should not be required and should
be employed only if necessary for
resource protection. Another respondent
was concerned that outfitters and guides
would bear the brunt of use restrictions
because it is more difficult to assess and
control use by the general public. One
respondent believed that the general
public and non-permitted groups should
be subject to the same use restrictions as
permitted users, who are enabling
recreational use by the general public in
a way that benefits the national forests
and the agency.
One respondent supported new
provisions in the directives requiring all
groups to register with the Forest
Service to gain access. This respondent
believed that this requirement would
help manage use and mitigate impacts
from noncommercial and commercial
use. This respondent also suggested that
all groups utilizing NFS lands be subject
to fees and stated that these fees would
support proper administration, resource
protection, user education, and law
enforcement. One respondent suggested
that both for-profit and non-profit
outfitters and guides receive priority
with respect to obtaining an allocation
if they provide educational programs
and services, since educational
programs directly support the agency’s
mission to educate visitors to the
national forests. Another respondent
suggested making unused service days
available to priority use outfitters and
guides first. Many respondents wanted
assurance that the proposed directives
would not require allocation of use in
areas where it is not currently required,
such as on the Deschutes River and in
the Boundary Waters Canoe Area
(BWCA).
Response. There appears to be some
confusion among respondents about the
scope of these directives. These
directives will be included in the Forest
Service’s Special Uses Handbook (FSH
2709.11) and are specific to
administration of outfitting and guiding.
Outfitting and guiding on NFS lands are
commercial activities that require a
special use authorization under 36 CFR
251.50(a) and the Special Uses
Handbook. These directives do not
govern noncommercial recreational
activities conducted by individuals or
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groups. Generally, a special use
authorization is not required for
noncommercial recreational activities,
such as camping, picnicking, hiking,
fishing, boating, hunting, and horseback
riding (36 CFR 251.50(c)).
Moreover, the Forest Service generally
does not allocate use for noncommercial
activities. However, some
congressionally designated areas are
governed by specific statutes, such as
the Wild and Scenic Rivers Act, which
require the Forest Service to limit
recreational use. Limits on all
recreational use in these areas are
determined in the planning process for
the areas, and a system may be
established to manage unguided
recreation in these areas. For example,
the BWCA is a congressionally
designated wilderness area that has a
lottery system for unguided recreation.
In addition, special use permits are
issued to commercial outfitters and
guides operating in the BWCA. The
Forest Service does not manage the
lower sections of the Deschutes River,
which are used for recreational river
runs. Rather, those sections are under
the jurisdiction of BLM.
The Forest Service does not believe
that allocation of use for commercial
operators should be optional. The
agency depends on allocation of use to
quantify and manage outfitters’ and
guides’ use of NFS lands. It is not
feasible for commercial outfitters and
guides to plan and market their
businesses without knowing how much
use they are authorized to conduct on
NFS lands.
The agency believes that regulation of
commercial and noncommercial use
pursuant to applicable regulations and
directives is sufficient and that
registration of users of NFS lands is
unnecessary. In addition, the propriety
of registration of users of NFS lands is
beyond the scope of these directives.
The Forest Service may and does charge
fees only as provided by applicable law.
As stated above, whether outfitters
and guides provide educational services
is irrelevant to their eligibility for
allocation of use under the directives.
Under the directives, outfitters’ and
guides’ eligibility for allocation of use
depends on whether they hold a priority
use (longer-term) permit as opposed to
a temporary use (shorter-term) permit.
The agency believes that qualification
for a longer-term permit is a more
objective and appropriate basis for
triggering allocation of use than the
characteristics of services provided.
The final directives enhance
allocation of unused service days and
quotas for both temporary use and
priority use permit holders. See sections
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41.53k and 41.53n in the final
directives.
Comments Concerning Planning. One
respondent stated that the proposed
directives failed to create a consistent
planning process linking outfitting
needs assessments, resource capacity
analysis, and use allocation as well as
linking all of these to existing standards
and guidelines in the applicable land
management plan, other relevant
planning documents, and Forest Service
policy. Another respondent stated that
the final directives should require
development of outfitting and guiding
plans.
Response. It is not the purpose of
these directives to address land
management planning. The Forest
Service has separate directives
governing this topic (see FSM 1921).
The basic unit of Forest Service
planning is the land management plan.
To the extent appropriate, land
management plans may address
outfitting and guiding use. When
required by statute, a plan is prepared
for a congressionally designated area
and is incorporated into the applicable
land management plan. Wilderness
management direction is prepared as a
part of the land management planning
process as required by 36 CFR part 219
and FSM 1922. Planning is also
conducted in compliance with the
National Environmental Policy Act
(NEPA) (36 CFR part 220, FSM 1950,
and FSH 1909.15). The applicable land
management plan is implemented
through development of schedules for
projects and activities designed to meet
management standards and guidelines
established for the wilderness area.
Additionally, the agency has directives
governing wilderness planning (FSM
2322) and river recreation management
(FSM 2354). These directives should be
read in conjunction with the directives
on outfitting and guiding
administration. The Forest Service
believes that existing planning tools are
sufficient and that outfitting and
guiding land use plans are unnecessary.
Comments Concerning Public
Involvement. One respondent was
concerned that the proposed directives
did not require public involvement for
an outfitting and guiding needs
assessment, resource capacity analysis,
and use allocation or enumerate how
the agency would otherwise comply
with NEPA during these processes.
Various respondents noted that
decisions to authorize outfitting and
guiding should be accompanied by
environmental analysis that is
conducted at the appropriate scale
(regional, forest, district, or watershed
level); that includes a needs assessment,
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resource capacity analysis, and a
reasonable range of alternatives for
allocation of use to make the allocation
process transparent; and that allows for
public involvement, efficient analysis of
cumulative impacts, development of
more effective mitigation, and regional
assessment of educational outfitting and
guiding needs and providers. One
respondent also noted that the Forest
Service needs to address analysis of
cumulative impacts at the appropriate
temporal and spatial scales and
compliance with other relevant statutes,
including the Endangered Species Act
and National Historic Preservation Act.
Several respondents were concerned
about NEPA compliance associated with
issuance of temporary use permits and
noted that the proposed directives are
silent on this issue. One respondent
noted that environmental analysis
associated with many recreation-related
activities remains incomplete because it
is time-consuming and expensive. One
respondent believed that issuance of
temporary use permits under the
proposed directives without
environmental analysis would simplify
administration of the outfitting and
guiding program and reduce agency
costs. One respondent noted that a
perception exists that NEPA and cost
recovery requirements do not apply to
temporary use permits.
Response. There appears to be
confusion among respondents regarding
the trigger for environmental analysis
and the relationship among a needs
assessment, a capacity analysis, and an
environmental analysis. The Forest
Service has separate directives
governing environmental policy and
procedures (see FSH 1909.15). These
directives govern environmental
analysis, scoping, and public
participation and should be read in
conjunction with these directives.
Comments regarding public
involvement and environmental
analysis related to outfitting and guiding
permits are therefore beyond the scope
of these directives.
Needs assessments and resource
capacity analyses are not agency
decisions subject to environmental
analysis. Rather, they are analytical
tools that inform an agency decision.
For example, a needs assessment could
support a decision to issue a permit. A
needs assessment also could support a
decision to amend a land management
plan. Additionally, a needs assessment
and resource capacity analysis are
typically used to develop a river
management plan. The outfitting and
guiding directives are intentionally
flexible with regard to selection of the
geographical area to be analyzed for
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efficient outfitting and guiding
administration because the authorized
officer is in the best position to
determine the appropriate scope of
analysis.
Decisions that are made to authorize
use pursuant to a needs assessment and
resource capacity analysis, including
issuance of permits, amendments of
land management plans, and allocations
of use in plans, are subject to NEPA.
The Forest Service complies with
applicable law and policy, including
NEPA, in making these decisions.
Comments Concerning Resource
Capacity Analysis. One respondent
supported the direction to base
allocations of use on accurate resource
capacity analyses and needs
assessments. One respondent
recommended revising section 41.53e,
paragraph 1b, to provide for review of
previous needs assessments ‘‘with new
public input’’ when reauthorizing use.
One respondent stated that where a
needs assessment identifies overcapacity, no new outfitting and guiding
should be considered. One respondent
recommended that section 41.53e be
revised to require completion of a
resource capacity analysis, followed by
a needs assessment, and use of the
information gained from these analyses
in making decisions on allocation of
use. One respondent believed that this
section implied that all future
wilderness, wild and scenic river, and
land management plans would include
allocations for priority and temporary
use and that these allocations should be
based on capacity studies and needs
assessments.
One respondent believed that the
directives should require development
and implementation of allocation plans
before, rather than after, resource
capacity has been reached. This
respondent wondered who would
determine when information regarding
resource capacity is reliable and when
resource capacity has been reached. One
respondent recommended revising
section 41.53e, paragraph 2, to require
that a resource capacity analysis be
performed to assess the amount of use
and types of activities that may be
conducted without detrimental
environmental or social impacts prior to
establishing any quotas or allocating
service days in permits.
Response. The Forest Service agrees
that when complexity warrants, such as
when multiple proposals are submitted
for limited resources or when
coordinated review of proposals is
otherwise required, allocations of use
should be supported by a resource
capacity analysis and needs assessment.
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However, a resource capacity analysis
and needs assessment are not necessary
for simple situations. Resource capacity
analyses and needs assessments are
costly, and decisions to revisit them
need to be efficient.
If a resource capacity analysis
identifies over-capacity, no additional
use will be authorized, and existing use
may be reduced. Either a resource
capacity analysis or a needs assessment
may eliminate a proposal from further
analysis. The authorized officer has the
discretion to determine which analysis
to conduct first for management
efficiency.
The purpose of a resource capacity
analysis is to quantify the amount and
type of activities that can be
accommodated in a geographical area.
When multiple entities want to use the
same area or when multiple activities
are proposed in the same area, it is
necessary to evaluate the variety of uses
proposed and to determine which ones
to accommodate. For example, 15
entities may submit proposals when
there is capacity for only 5 entities, in
which case, applicants will be selected
competitively (for priority use) or by
lottery (for temporary use). As stated
above, resource capacity analyses are
not subject to environmental analysis.
The agency has modified section
41.53e, paragraph 2, to clarify that when
monitoring indicates that impacts
associated with use may exceed desired
conditions, a resource capacity analysis
should be conducted.
Comments Concerning Needs
Assessments Generally. One respondent
stated that needs assessments should be
timely, based on sound science, and
involve public scoping. One respondent
encouraged the agency to assess public
demand based on accurate visitor
information and prior to assessing the
need for commercial services. Another
respondent stated that the allocation of
service days to a large extent is arbitrary
because it is based on a needs
assessment that might not have a
scientific basis and that service days
may be increased when there is no need
for additional services. One respondent
believed that visitor preference surveys
should not be the only means to
determine use allocations because these
surveys fail to measure the preferences
of future visitors or past visitors who
have been displaced from an area due to
use trends. Another respondent
wondered how the agency would
acquire data on use by public and
institutional groups that are not
currently authorized to operate for
purposes of performing accurate needs
assessments.
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Several respondents stated that the
Forest Service should confer with or
defer to states when issuing or limiting
permits involving fishing and hunting.
One respondent believed that the
proposed directives would weaken the
role a needs assessment plays in
determining the appropriateness of
issuing outfitting and guiding permits
for hunting.
Another respondent proposed
revising section 41.53e, paragraph 3, to
read: ‘‘Determine the allocation of use
between outfitted and guided visitors
and self-outfitted, non-guided visitors,’’
and striking the last sentence regarding
allocation of temporary use. One
respondent stated that temporary use
pools should not be formed by
decreasing the allocation of use to the
public or by increasing allocations of
use, but rather by employing unused
commercial allocations. Another
respondent believed that educational
outfitters and guides need to be given
preference in allocations of use so that
they can provide essential safety, land
ethics, and educational services the
Forest Service cannot provide. One
respondent underscored the importance
of treating all users equitably when
making choices about the levels of use
in a needs assessment.
Yet another respondent suggested that
no change be made to any priority use
allocations until a resource capacity
analysis has been completed. One
respondent recommended that a
resource capacity analysis be conducted
before renewal of priority use permits.
Response. The purpose of a needs
assessment in the context of commercial
outfitting and guiding is to evaluate the
need for a public service. The public
may have a need for outfitting and
guiding services (e.g., guidance, skills,
or equipment necessary to access certain
amenities or conduct certain
recreational activities) or the agency
may have a need for these services (e.g.,
to reduce incidents that involve search
and rescue or to promote leave no trace
ethics). If there is no need for these
services, an outfitting and guiding
proposal will not be accepted.
The agency agrees that needs
assessments should be timely and based
on sound information. The Forest
Service has two scientifically based
methods for surveying public recreation
needs: National Visitor Use Monitoring,
which involves systematically
interviewing clients on site for each
national forest and national grassland,
and the National Survey on Recreation
and the Environment, which involves
interviewing the general public by
telephone. In addition to these
resources, local managers can rely on
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their experience regarding the types of
requests they receive for recreational
use, public comments, and field
observation of recreational use.
The Forest Service coordinates with
state fish and wildlife agencies when
evaluating the need for outfitting and
guiding. The states’ projected animal
harvest levels are a key component of a
needs assessment. The agency does not
believe that these final directives will
weaken the role of a needs assessment
in determining the appropriateness of
authorizing outfitting and guiding for
hunting. Rather, the agency believes
these directives will enhance
consistency in the use of needs
assessments.
The agency knows from discussions
with youth groups, camps, and
universities which use or would like to
use NFS lands that access to outfitting
and guiding permits could be improved
by creating a sustainable reserve of use
for short-term temporary permits. One
of the objectives of preparing these
directives was to simplify the process
for issuing temporary use permits so as
to increase public access to NFS lands
and outfitting and guiding
opportunities. The agency believes that
the final directives strike a balance
between supporting current and future
outfitters and guides and establishing a
process that will improve public access
to recreational opportunities and public
service. Sections 41.53k and 41.53n in
the final directives address formation
and operation of temporary and priority
use pools. These pools will be formed
from unemployed use. The appropriate
distribution of priority use, temporary
use, and unguided use will be
determined on a site-specific basis using
processes outlined in these and existing
directives. The agency does not believe
that it is appropriate to establish
preferences for allocation of use based
on the characteristics of the services
provided.
A decision to adjust allocation of use
in or to renew a priority use permit is
separate from a decision to authorize
use. The allocation of use in a priority
use permit is a privilege that can be lost
through non-use. Under certain
conditions, the agency may shift
unemployed use to another outfitter.
See section 41.53m. Priority use permits
are renewable, provided that certain
conditions are met. See section 41.53l.
Comments Concerning Needs
Assessments and Wilderness Areas.
Several respondents advised that when
conducting a needs assessment for
outfitting and guiding in a wilderness
area, the agency should assess whether
these activities are necessary and proper
for realizing the recreational or other
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wilderness purposes of the area and the
extent to which the activities may or
may not be authorized consistent with
maintaining the wilderness character of
the area. These respondents
recommended that the agency evaluate
the spatial and temporal scope of
commercial services to be authorized
and document the wilderness purpose
achieved by those services.
Another respondent proposed
revising the directives to state that
outfitting and guiding are
nonconforming uses in wilderness areas
that should not impair their wilderness
character. One respondent objected to
authorization of commercial use in all
congressionally designated areas.
Another respondent believed that the
proposed directives were inconsistent
with the intent of the Wilderness Act
with regard to allocation of use to
outfitters and guides in wilderness
areas.
Another respondent believed that
needs assessments for wilderness areas
must balance guided activities, such as
hunting and equestrian trips, with
unguided activities, such as
backpacking and hiking. Another
respondent believed that the increase in
motorized use has caused more conflicts
with quiet activities like backpacking
and hiking, and that therefore more
service days in wilderness areas are
required. Yet another respondent stated
that the mission of youth and
university-based programs is aligned
with wilderness areas and that these
programs need more service days in
wilderness areas.
Response. Before commercial
activities, including outfitting and
guiding, are authorized in a wilderness
area, a needs assessment must be
completed that addresses the extent to
which the activities are necessary for
realizing the recreational or other
wilderness purposes of the area. An
environmental analysis, possibly
including a capacity analysis, must also
be completed to analyze the effects of
the proposed activities on the
wilderness character of the area. Both of
these requirements are addressed in the
final directives in sections 41.53e,
paragraph 1a, and 41.53h, paragraph 3.
The Wilderness Act and agency
wilderness policy require that
wilderness character be preserved.
The Forest Service disagrees that
outfitting and guiding is a nonconforming use of wilderness areas. The
Wilderness Act specifically allows for
commercial services to be performed in
wilderness areas to the extent they are
necessary and proper for realizing the
recreational or other wilderness
purposes of the areas.
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The appropriate distribution of
priority use, temporary use, and
unguided use in wilderness areas will
be determined on a site-specific basis
using processes outlined in these and
existing directives. The Forest Service
does not believe that more service days
in wilderness areas are required because
of a growth in motorized recreational
use. The amount of service days allotted
in wilderness areas will be based on the
need to provide an outfitted and guided
experience in wilderness areas, while
preserving their wilderness character.
The Forest Service believes that the
mission of many for-profit as well as
non-profit outfitters and guides is
aligned with wilderness areas and that
all these operators can provide the
public with a successful wilderness
experience. Therefore, the agency does
not believe that youth and universitybased programs need more service days
in wilderness areas based on the
mission of these programs.
Comments Concerning Needs
Assessments and Quotas. A respondent
recommended that quotas be applied
equally to all recreational uses and that
outfitters and guides not be permitted to
have larger group sizes. Another
respondent stated that allocation of
trailhead entries in a wilderness
management plan is more important
than allocation of service days.
Response. How much use to allocate
to various recreational users and
outfitters and guides is determined by a
needs assessment. Distribution of an
equal amount to all may not be the best
method of serving the public. Under
these directives, the authorized officer
has discretion to determine whether to
manage use by service days or quotas.
A limit on trailhead entries is a quota,
which, like service days, is a way of
measuring use.
41.53f—When Permits Are Required
Comments. One respondent
recommended changing the terminology
in section 41.53f, paragraph 1, from
‘‘priority use’’ to ‘‘commercial use.’’
Another respondent suggested that
the final directives provide clear and
consistent direction to the field on
development and issuance of the new
temporary use permit.
Response. In the final directives, the
Forest Service has retained the term
‘‘priority use’’ to describe permits that
are issued for a period of up to 10 years
to provide commercial public services.
Current directives state that (1) Priority
use is intended for ongoing operations,
(2) priority use permits will be reissued
if there is sustained satisfactory
performance by the holder, and (3) a
comparable permit will be issued to the
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purchaser of the assets of a holder of a
priority use permit if the purchaser is
technically and financially qualified.
Since outfitters and guides are familiar
with the term ‘‘priority use’’ and its
meaning and since the Forest Service is
not changing the characteristics of
priority use, it is not necessary to
change the term.
There will be a standard national form
for temporary use permits. Additionally,
the Forest Service plans to conduct
training on the new directives,
including use of the new form.
41.53g—Issuance of New Outfitting and
Guiding Permits
Comment. One respondent
recommended adding language to
section 41.53g, paragraphs 2a through
2e, 3, and 4, to allow outfitting and
guiding only after the needs for
unguided recreation have been met.
Response. The agency does not
believe that it is appropriate to supplant
site-specific needs assessments with a
presumption that unguided recreation
should take precedence over guided
recreation.
Comments. One respondent
supported limiting use when required
for protection of national forest
resources. However, this respondent
requested additional information about
competitive issuance of permits and was
concerned about the administrative and
financial burden, particularly for small
outfitting and guiding operations, of
responding to a prospectus.
Another respondent was concerned
about migration toward competitive
issuance of priority use permits because
of the lack of standard procedures for
making selections. One respondent
believed that the agency should clarify
policy on competitive issuance of
permits. Other respondents were
concerned about how the agency makes
selections in a competitive process
when applicants are similarly qualified.
These respondents supported the use of
performance-related criteria in selection
decisions.
Some respondents observed that the
return to the Federal government should
not be a selection criterion, and others
were concerned that financial capability
would become the tie-breaking factor.
Another respondent recommended
consideration of past experience,
knowledge of the area, financial
capability, economic viability of
existing holders, performance record,
return to the Federal government, and
other factors in selecting the most
qualified applicant. One respondent
recommended adding the consideration
of interpretive skills, educational skills,
and performance record, including use
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of leave no trace techniques, to the list
of evaluation criteria.
One respondent noted that since
institutional outfitters and guides do not
earn as much revenue as for-profit
outfitters and guides, institutional
outfitters and guides are at a
disadvantage in a competitive process,
which requires submission of a
proposed land use fee based on a
percentage of revenues.
Response. It has been a long-standing
policy of the Forest Service to offer new
business opportunities competitively
when there are multiple interested
parties and not all of them can be
accommodated (FSM 2712.1). That
policy is now codified at 36 CFR
251.58(c)(3)(ii). FSM 2712.1, paragraph
3, lists the following evaluation criteria
for applications submitted in response
to a prospectus: Kind and quality of
services proposed in terms of meeting
public need; the applicant’s experience
in this or related fields and the
applicant’s qualifications to fully satisfy
the public need for service; verification
of financial resources; and return to the
government. These directives supersede
paragraph 3 of FSM 2712.1 and include
the following as evaluation criteria for
selecting among applicants for an
outfitting and guiding permit: the
applicant’s experience, knowledge of
the area to be authorized, financial
capability, performance record as an
outfitter or guide, and other pertinent
factors. To address the concern
regarding the competitive disadvantage
of institutional outfitters and guides, the
agency has revised section 41.53g,
paragraph 3a, to clarify that return to the
government is not a selection criterion
for outfitting and guiding permits at this
time.
When a prospectus is being prepared,
the authorized officer has the discretion
to determine the type of services desired
and may make the provision of those
services a requirement for applicants.
For example, the prospectus may
require interpretation, education, or
instruction of leave no trace ethics.
41.53h—Applications for Outfitting and
Guiding Permits
Comments. One respondent asked
that the directives include a description
of an applicant’s qualifications for both
priority and temporary use. Another
asked that a description of an
applicant’s qualifications be included in
the application form. Additionally,
some respondents suggested that
qualifications for first aid and
emergency evacuation procedures for
backcountry be described in the
application form.
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One respondent noted that applicants
should be required to state and
document their experience in providing
services. One respondent suggested
enumerating what an applicant must
submit.
One respondent recommended
deleting the phrase ‘‘proposed number
of service days or quotas’’ from section
41.53h, paragraph 2. Another
respondent believed that it was not
appropriate to let applicants for
outfitting and guiding permits identify
the service days or quotas they need
without considering the need of the
unguided public. One respondent
suggested that schools complete one
application each year for uses they
conduct in multiple forests.
Response. Special use regulations at
36 CFR 251.54(d) and Forest Service
directives at FSH 2709.11, section 12.31,
address the content of proposals and the
information required from a proponent
or applicant to determine technical and
financial qualifications. These
regulations and directives should be
read in conjunction with these final
directives. One of these requirements is
a project description, which for
outfitting and guiding must include the
amount of use an applicant proposes to
conduct. Authorized officers need the
discretion to determine specific
qualifications and knowledge
appropriate or necessary for a particular
operation in a particular location.
Therefore, it would not be appropriate
to predetermine those qualifications.
The Washington Office and Regional
Offices of the Forest Service are not
staffed to allow for submission of a
single proposal and application for
outfitters and guides who propose to
conduct operations on multiple forests.
In addition, since the supporting
environmental analysis for outfitting
and guiding applications must be sitespecific, it does not make sense to
consolidate proposals and applications
for outfitting and guiding.
41.53i—Requirements for Temporary
and Priority Use Permits
Comments. Many respondents
proposed that there be no assigned sites
set aside specifically for outfitters and
guides. These respondents believed that
assigning sites would conflict with
unguided use of Federals lands and that
it is inappropriate to set aside assigned
sites for outfitters and guides, since
their services are not available to the
general public free of charge.
Response. Assignment of sites is a
management tool available to the
authorized officer. These directives
describe how to address assignment of
sites in a permit; these directives do not
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require or effect assignment of sites.
Assignment of sites is a site-specific
decision. Current Forest Service
directives already provide for
assignment of sites to outfitters and
guides (see FSH 2709.11, sec. 37.05 and
37.21h). The topic is included in section
41.53i for purposes of administrative
efficiency.
Comments. One respondent objected
to the requirement in section 41.53i,
paragraph 4, to submit a report on actual
use within 30 days of the close of the
operating season on the grounds that it
is unnecessary and contrary to local
practice. Another respondent suggested
revising section 41.53i, paragraph 4, to
provide for submission of the report at
the beginning of each operating season
or when needed.
Response. The requirement to report
actual use within 30 days of the end of
the operating season is necessary for
timely reconciliation of land use fees
and was not proposed for revision.
41.53i, Paragraph 5—Contracts for
Ancillary Services and Equipment
Comments. One respondent
supported section 41.53i, paragraph 5,
which authorizes outfitters and guides
to contract for ancillary services.
Another respondent agreed that permit
holders should be responsible for the
actions of their subcontractors. This
respondent also believed that the
directives should recognize holders’ use
of volunteers, as well as employees.
Another respondent requested
clarification as to which services would
be deemed ancillary and wondered
whether services provided by faculty
members who are contractors rather
than full-time employees would be
considered ancillary. One respondent
noted that most Montana fishing
outfitters and guides use licensed guides
as independent contractors, rather than
hiring guides as employees; that to be
certified by the Montana Department of
Labor and Industry as an independent
contractor, contractors must not be
under the direct control of the
contracting party, as they would be
classified as employees; and that unless
paragraphs 4 and 5b of section 41.53i
are revised, they will prevent Montana
outfitters and guides from using
independent contractors under their
special use permits. Another respondent
requested that the directives encompass
arrangements that enable holders to
provide a range of unique opportunities
to the public, such as contracting for the
services of a guest speaker or instructor.
Another respondent believed that
contracted services should be provided
by other permitted outfitters and guides,
and that it was not appropriate to cede
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management of trips to a holder who
has no experience. Another respondent
believed that many insurers would not
cover the activities of subcontractors
and wanted to add language to section
41.53i, paragraph 5b(2), to read: ‘‘The
contracted guide or outfitter who
already holds a permit at the resource
has all required state licenses and
appropriate Forest Service permits.’’
One respondent believed that section
41.53i, paragraph 5c, which authorizes
contracting for additional services and
equipment in emergencies, was too
restrictive in requiring those services
and equipment to be provided by
another permit holder. This respondent
was concerned that additional services
and equipment might not be available
from another holder. One respondent
stated that the Forest Service should not
dictate to private businesses whom they
can employ.
Another respondent believed that the
requirement that the contracting holder
exercise management authority over
day-to-day operations, including
guiding services, could void the
contracted guide’s liability insurance
and suggested striking section 41.53i,
paragraph 5b(4).
Some respondents questioned the
requirement for an insurance policy
endorsement for contractors who
provide ancillary services and
equipment. Another questioned the
requirement in section 41.53i, paragraph
5a(3), for a holder to submit a contract
for ancillary services at the beginning of
the operating season. This respondent
noted that the need for ancillary
services may not be identified until the
last minute. One respondent was
concerned that section 41.53i, paragraph
5c, would encourage illegal sublicensing
of permits.
Response. The Forest Service
developed the provisions authorizing
contracts for ancillary services and
equipment in response to requests from
holders, who believe that the existing
directives, which do not allow these
contracts, are too restrictive. In order for
legal requirements to be met, permit
holders must remain responsible for all
activities authorized by their permit and
may not circumvent their responsibility
through the use of contractors or
volunteers. Everything authorized under
an outfitting and guiding permit,
including contracts for ancillary
services and equipment, must be
covered by insurance. For further
discussion of insurance, see the
response to comments on proposed FSH
2713.1, paragraph g.
These directives do not require the
use of contracts for ancillary services
and equipment. Rather, they allow the
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use of these contracts, subject to certain
conditions. The requirement to submit
contracts for ancillary services and
equipment at the beginning of the
operating season is intended to allow
sufficient time for review.
The Forest Service does not dictate
whom outfitters and guides can employ.
The directives give holders the option of
utilizing existing holders, whose skills,
experience, and insurance coverage are
known to the authorized officer, to
avoid submission of a contract for
ancillary services and equipment at the
beginning of the operating season.
Additionally, the final directives give
holders’ contractors the option of
procuring a separate insurance policy
that covers their services and equipment
and that names the United States as an
additional insured.
The final directives at FSH 2709.11,
section 41.53d, define an ancillary
service as ‘‘a service that supports use
authorized by an outfitting and guiding
permit and that is provided by a party
other than the holder or the holder’s
employees or agents.’’ This definition is
broad enough to include the services of
a guest speaker or instructor.
A faculty member who is hired by a
school as a contractor and provides
ongoing outfitting and guiding services
for the school would not be a contractor
for purposes of these directives because
outfitting and guiding is the primary use
authorized by the permit, rather than an
ancillary service that supports the
authorized use. Thus, the faculty
member must be covered by the holder’s
insurance. Likewise, licensed guides in
Montana who are hired as independent
contractors, rather than as employees, to
provide ongoing outfitting and guiding
services for permit holders are agents of
the holder and would be providing the
primary service, rather than an ancillary
service, under the final directives.
Comments. One respondent objected
to proposed section 41.53i, paragraph
5a(3), which would authorize priority
use permit holders to contract for the
services of a specialized guide for
people with disabilities or highly
technical trips on the grounds that the
provision was equivalent to a
requirement for specialized certification
for guides and therefore burdensome to
nonprofit outfitters and guides. Another
respondent stated that it was useful to
have the flexibility to contract for
ancillary services and equipment,
thereby significantly lowering
specialized capital expenditures.
Response. Section 41.53i, paragraph
5a(3), does not require specialized
certification for guides. To the contrary,
paragraph 5a(3) gives outfitters and
guides the flexibility to contract, as
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needed, for guides with specialized
training or skills.
Comments. One respondent
commented that the Forest Service
should not allow partial transfers of
authorized use. Another respondent
stated that some outfitters and guides
swap service days and that this practice
should not be prohibited. Yet another
respondent proposed amending section
41.53i, paragraph 6, to allow the Forest
Service to approve transfers or
reassignments of authorized use to an
affiliate of an existing holder. One
respondent suggested revising section
41.53i, paragraph 6, to authorize
transfers or reassignments of authorized
use in connection with a change of
control of a business entity that holds a
permit. One respondent suggested
reinforcing the language that precludes
transfer of a permit. One respondent
was concerned that section 41.53i,
paragraph 5c, could allow hunting
guides to increase staff and operations
without oversight and could result in
concentration of hunters.
Response. Long-standing Forest
Service policy has reserved the
authority to allocate use to the
authorized officer. Allowing holders to
transfer or reassign use would
undermine the agency’s ability to
manage resources and to provide for
public safety and liability protection.
Permits and allocations of use are not
transferable. However, under both the
current and revised directives, when
there is a change of ownership or
control of a holder of a priority use
permit, the Forest Service issues a new
priority use permit to the purchaser if
the purchaser is technically and
financially qualified. In addition,
utilization of allocations is reviewed,
and allocations are adjusted, if
appropriate (see FSH 2709.11, 41.53m).
Outfitter and guide staffing and
operations are addressed in operating
plans, which are prepared by the holder
in consultation with the authorized
officer and approved by the authorized
officer.
41.53j—Issuance of Temporary Use
Permits
The Forest Service received many
comments on proposed section 41.53j.
Some of these comments resulted in
creation of three new sections. For
clarity, comments and responses on the
following topics have been moved to
their corresponding new sections:
(1) Temporary use pools: section
41.53k, Management of Temporary Use
Pools;
(2) priority use pools: new section
41.53n, Management of Priority Use
Pools;
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(3) conversion of temporary use
permits issued under the 1995 policy to
priority use: new section 41.53p,
Transitional Priority Use
Comments Regarding the 100-Day
Limit on Service Days for Temporary
Use. Several respondents favored the
creation of temporary use pools, but
were concerned about the 100-day limit
on service days for the pools. These
respondents believed that it would be
difficult to run more than one program
during a season with only 100 service
days and suggested a 200-day limit
instead. One respondent suggested a
150-day limit, and another
recommended a 250-day limit. One
respondent observed that there are
outfitters and guides who offer special
week-long events that have a large
number of participants (200 to 3,000) at
one time, that this type of event would
not qualify for a temporary use permit
due to the 100-day limit, and that the
outfitters and guides would therefore
have to obtain a priority use permit. One
respondent suggested that temporary
use permits for all four seasons be
offered at the beginning of every
calendar year. One respondent
suggested that additional consideration
be given to permit holders interested in
off-season use.
Response. The Forest Service agrees
that the amount of use available for a
temporary use permit should be
increased and has revised section
41.53j, paragraph 1, in the final
directives to provide for up to 200
service days for temporary use permits.
The Forest Service does not agree that
the number of service days should be
increased further to accommodate large
groups. Holders who intend to serve
large numbers of clients at one time
should obtain a priority use permit.
Additionally, section 41.53j,
paragraph 2, provides that a holder may
obtain one temporary use permit every
180 days. Thus, a temporary use permit
holder will be able to operate in more
than one season. Applicants wanting a
permit in the off-season should have a
good chance of getting one because
there will be less use in the off-season.
Comments Concerning Qualifications.
Several respondents believed that the
Forest Service would not evaluate the
qualifications of applicants for
temporary use permits and would not
maintain a record of their performance
and that failing to do so was not in the
public interest and was arbitrary and
capricious. One respondent was
concerned that proposals to authorize
temporary use could conflict with state
requirements for licensing outfitters and
guides. Another respondent stated that
the Forest Service should coordinate
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with state licensing agencies regarding
an applicant’s qualifications and not
duplicate state screening processes. One
respondent wondered whether it would
be possible to get a temporary use
permit if an outfitter and guide never
had a Forest Service outfitting and
guiding permit. One respondent
believed that educational outfitters and
guides could be at a disadvantage in
competing with for-profit outfitters and
guides for temporary use permits.
Response. All applicants for special
use permits must be qualified to
conduct the activities that they propose
(see the response to comments on
section 41.53h regarding applicants’
qualifications). If a state requires
licensing for outfitters and guides, the
Forest Service will require the holder to
obtain a state license to be eligible for
a Forest Service permit. However, very
few states have a licensing requirement
for outfitters and guides, and even those
that do may require a license only for
a few activities, such as hunting.
Applicable qualifications are
determined at the local level.
Proponents and applicants do not have
to have had a Forest Service permit;
they must merely demonstrate their
technical and financial qualifications for
a permit. The agency does not elevate
for-profit over non-profit status. The
agency has revised section 41.53h,
paragraph 2, to provide that proponents
and applicants must describe their
technical and financial qualifications to
provide the services that they are
proposing.
Comments Concerning Performance
Ratings and Operating Plans. Several
respondents recommended revising
section 41.53j, paragraphs 11 and 12, to
require annual performance evaluations
and operating plans for holders of
temporary use permits to encourage
acceptable performance. Another
respondent believed that conducting
performance evaluations for holders of
temporary use permits would enhance
public safety and resource protection.
One respondent recommended
establishing performance standards for
all permit holders and informing them
of the potential for inspection and
performance review. One respondent
suggested requiring holders to adhere to
a set of standards regarding public
health and safety, protection of
resources, and education of national
forest visitors. Several respondents
stated that not requiring performance
evaluations and operating plans for
temporary use permit holders would
exempt them from regulatory oversight,
which would be unfair to priority use
permit holders.
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One respondent observed that there is
no guidance to field staff on when to
require operating plans and that
operating plans should be required for
higher-risk activities and activities
conducted in remote settings. One
respondent suggested revising section
41.53j, paragraph 12, to provide that
operating plans generally are required
for higher-risk activities or activities
conducted in remote settings and that
operating plans should be required for
extensive overnight backcountry use.
Another respondent suggested that in
lieu of a multi-page operating plan, the
Forest Service should require a 1-page
worksheet.
Response. The Forest Service agrees
that temporary use permits should have
an operating plan. Accordingly, the
agency has revised section 41.53j,
paragraph 6, in the final directives to
provide that holders of temporary use
permits must have an operating plan
that addresses public health and safety,
emergency procedures, and resource
protection. However, the final directives
do not require a performance evaluation
for holders of temporary use permits.
The Forest Service believes that it
would be costly and unnecessary to
require performance evaluations for
temporary use permit holders. However,
the agency has added section 41.53j,
paragraph 8, to clarify that violations of
law, customer complaints, and adverse
performance ratings from the Forest
Service or other agencies will be
considered in evaluating an applicant’s
technical qualifications.
Comment. One respondent
recommended revising proposed section
41.53j, paragraph 2, so that the
geographic basis would be ‘‘per area
consistent with’’ a needs assessment
and capacity analysis, rather than ‘‘per
area specified in’’ those documents.
Response. The Forest Service has
revised section 41.53j, paragraph 2, to
read ‘‘per use area.’’
41.53j—Management of Temporary Use
Pools
Comments Regarding the Concept of
Temporary Use Pools. Several
respondents supported temporary use
pools. One respondent believed that
they would give the public more choice
by allowing institutional groups to
provide commercial services, as well as
expand services offered in an area.
Several respondents believed that the
proposed directives were unclear
regarding how temporary use permits
would be allocated. These respondents
also believed that the proposed
directives were vague regarding
procedures for establishment of
temporary use pools and that temporary
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use pools would create administrative
burdens for the agency and confusion
for applicants. These respondents
questioned how long it would take to
establish temporary use pools; how use
would be distributed from the pools;
and what would happen if critical
elements of the directives regarding
temporary use pools were not
implemented. These respondents stated
that how fast a temporary use pool is
established will depend on the Ranger
District’s ability to complete analyses
and identify priority use permit holders’
unused service days and terminated
temporary use permits.
One respondent suggested allowing
temporary use permit holders to utilize
priority use permit holders’ unused
service days on an annual basis. One
respondent was concerned that service
days for temporary use pools would be
taken from existing priority use permits,
at the expense of small commercial
outfitters. One respondent believed that
extensive authorization of temporary
use would undercut the privileges of
priority use permit holders.
One respondent noted that it is more
financially efficient, less timeconsuming, and safer for schools and
other organizations to hire a priority use
permit holder than to offer their own
outfitting and guiding programs and that
schools and other organizations buy
lower-quality equipment than for-profit
outfitters and guides.
One respondent recommended
revising section 41.53j, paragraph 7, to
provide that the unguided public may
obtain for use from a temporary use pool
on a first-come, first-served basis
through a lottery system or through
some other equitable method of
allocation. Additionally, this
respondent believed that allocations for
temporary use pools should come from
priority use permit allocations.
Response. The Forest Service agrees
that temporary use pools will enhance
public service and outfitting and
guiding opportunities for qualified
entities that previously had difficulty
obtaining short-term permits. Some
administrative units already have needs
assessments and capacity analyses
completed and will be able to establish
these pools promptly. Other units have
needs assessments and capacity
analyses underway and should be able
to implement pools within a year. Other
units will have to initiate these tasks
and may take a year or two to establish
a temporary use pool.
The Forest Service agrees that more
direction is needed on management of
temporary use pools and has added a
new section 41.53k, Management of
Temporary Use Pools. Units may
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authorize temporary use in accordance
with section 41.53j without establishing
a temporary use pool. However, a
temporary use pool may be necessary in
high-demand areas.
Operators of youth camps and
university programs have for many
years expressed frustration with their
limited access to outfitting and guiding
permits. These operators are not likely
to hire a for-profit outfitter and guide
unless they do not have the equipment
or staff necessary to conduct a trip.
Many university programs are training
students to lead outdoor adventures.
Operators of these programs are not
satisfied that the services offered by forprofit outfitters and guides fit the
educational and training objectives of
these programs. Improving the access of
youth camps and universities to
temporary use permits will not detract
from the privileges of priority use
permit holders.
Issuance of noncommercial recreation
permits to individuals and groups is
beyond the scope of these directives,
which govern outfitting and guiding.
For additional discussion regarding
unguided recreation, see the response to
comments on proposed section 41.53e,
Needs Assessments, Resource Capacity
Analysis, and Allocation of Use.
Comments Regarding the Function of
Temporary Use Pools. Several
respondents commented on the function
of temporary use pools. One respondent
wanted priority use permit holders to be
able to apply for a temporary use permit
from a pool at least 120 days in advance.
One respondent believed that holders of
priority use permits should be allowed
to apply for a temporary use permit 180
days in advance. Many respondents
believed that it was not feasible to plan
and schedule trips with only 30 days
notice. One respondent recommended
revising section 41.53j, paragraph 5, to
treat all applicants the same. Another
respondent wanted all permit holders to
be able to apply for a temporary use
permit 12 months in advance, so that
they could manage their programs. One
respondent questioned whether a
priority use permit holder authorized to
operate on one national forest could
apply for a temporary use permit to
operate on another national forest 12
months in advance.
One respondent suggested that the
Forest Service establish open seasons
for applications for each type of permit
in each use area. This respondent
believed that accepting applications on
a first-come, first-served basis would
result in competition to obtain permits
and would make it more difficult for
small outfitters and guides to obtain
permits. One respondent suggested
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revising proposed section 41.53j,
paragraph 9, to provide that priority use
service days or quotas not used within
the first month of a priority use permit
term be reallocated to a pool for access
by all recreational use groups. One
respondent recommended deleting
proposed section 41.53j, paragraphs 5,
6, and 7, on the ground that they would
limit access to temporary use permits by
priority use permit holders.
Response. New section 41.53k,
Management of Temporary Use Pools, in
the final directives provides for
establishment of one or more open
seasons, specifies who may apply
during an open season, addresses
distribution of any use remaining after
an open season has closed, and allows
the authorized officer to shift service
days between temporary and priority
use pools based on their utilization.
Service days or quotas may be allocated
to a temporary use pool based on a
resource capacity analysis
demonstrating that additional capacity
exists; a determination that service days
or quotas have been insufficiently used
during the first 5 years of a priority use
permit; or a determination that service
days or quotas may be reallocated when
a priority use permit is revoked or not
renewed.
Priority use permit holders in the use
area are ineligible to apply for use from
a temporary use pool during the open
season. However, after the open season,
priority use permit holders in the use
area may apply for use from a temporary
use pool, provided that if a priority use
pool has been established for the same
use area, applications for any remaining
service days may be restricted to
qualified applicants who do not hold a
priority use permit. Priority use permit
holders outside the use area may apply
for use from a temporary use pool
during the open season.
The Forest Service has also added
section 41.53n in the final directives.
This new section provides for
establishment of priority use pools and
contains direction on application and
operating procedures for the pools,
including the timing and number of
open seasons.
In the final directives, the Forest
Service has replaced the term
‘‘administrative unit,’’ which includes a
national forest, national grassland, or
other comparable unit of the NFS per 36
CFR 212.1, with ‘‘use area,’’ which is
now defined in section 41.53d as any
geographical configuration that allows
for efficient management.
41.53l—Issuance of Priority Use Permits
In the proposed directives, this
section was numbered as section 41.53k.
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Comments. One respondent did not
object to providing outfitting and
guiding opportunities for institutional
and youth organizations and observed
that many of these entities already hold
priority or temporary use permits. One
respondent requested that institutional
users not be given a free permit and not
be able to have their permit reissued to
a for-profit business. One respondent
did not support a system exclusively for
institutional use. Another respondent
believed that both non-profit and forprofit entities should be able to provide
commercial services.
Response. The final directives remove
the prohibition against issuing priority
use permits to institutional or semipublic organizations. The Forest Service
believes that each entity should have
the type of permit that best fits its mode
of operation. Some of the largest
outfitting and guiding operations are
run by non-profit entities. They are not
eligible for a land use fee waiver when
they are operating as a commercial
entity.
Comments. One respondent
supported authorizing priority use for
up to 10 years at the discretion of the
Forest Service, on the grounds that a
longer term supports a positive business
environment for organizations
committed to long-term programs in
specific areas and whose enrollment
depends upon significant amounts of
advance program planning and
consistency.
One respondent disagreed with the
agency’s recent extension of priority use
permit terms from up to 5 years to up
to 10 years. Several respondents
believed that 5 years is a more
appropriate maximum permit term that
would give land managers more
discretion in properly managing the
resource and accomplishing agency
objectives and that 10 years is too long
a term. One respondent stated that as
permit terms are extended, the
revocation process needs to be
strengthened, simplified, and shortened.
One respondent objected to longer
terms.
Response. The revised maximum term
length for priority use permits was
published in the Federal Register as a
proposed directive on August 13, 2004
(69 FR 50160). The final Federal
Register notice adopting the 10-year
permit term was published on April 14,
2005 (70 FR 19727). The agency did not
propose changing the maximum term
for priority use permits in these
directives. The process for revoking
permits is governed by the APA and 36
CFR 251.60 and is also beyond the
scope of these directives.
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Comments. One respondent
supported a 2-year probationary period,
so that an outfitter and guide who does
not provide adequate public service,
protect resources, or support the
agency’s objectives will lose the
privilege to operate. Another respondent
agreed and stated that it is harder to take
away an allocation than not to issue
one. One respondent suggested using
the phrase ‘‘2-year interim priority’’ in
proposed section 41.53k, paragraph 3.
Several respondents suggested an option
to extend the permit for 10 rather than
8 years because new holders may need
more time to establish their business.
One respondent suggested that more
explicit direction be provided when a
permit is issued upon change of
ownership. This respondent wanted
clarification that a new permit would be
subject to the 2-year probationary period
if the purchaser was a new operator.
Response. The Forest Service had two
objectives in proposing the 2-year plus
8-year term for new operators: To
overcome the agency’s inertia in
converting eligible holders from an
annual permit to a priority use permit,
and to use the same timeframe (10
years) for evaluating environmental
impacts when authorizing the use. The
Forest Service disagrees with the notion
that a 2-year plus 10-year term should
be offered because it would not meet the
standard horizon for analyzing the use.
The Forest Service does not believe it is
necessary to create a new term, such as
‘‘interim priority use,’’ to refer to the
probationary period. A new holder will
simply have priority use for a 2-year
probationary period.
Comments. One respondent stated
that upon termination, priority use
permits should be competitively bid by
other prospective holders to allow for
competition. One respondent wanted to
revise proposed section 41.53k,
paragraph 10, to provide that priority
use permits may be reissued to the
original holder, provided that the
permits are consistent with the
applicable land management plan and
there has been satisfactory performance.
One respondent believed that priority
use permits should be renewed only if
the unguided public does not need
access. One respondent believed that
renewal at the sole discretion of the
authorized officer could be a biased
decision and proposed striking ‘‘at the
sole discretion of the authorized
officer.’’ This respondent also wanted to
strike the citation to the cost recovery
regulations at 36 CFR 251.58. One
respondent supported retaining
proposed section 41.53k, paragraphs 6
through 10, as written.
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Response. Long-standing agency
policy and permit terms provide for
reissuance of priority use permits if the
holder has satisfactory performance and
issuance to the purchaser of ownership
of or a controlling interest in the
holder’s business if the purchaser is
technically and financially qualified.
The agency has not proposed revising
this policy in these terms in these
directives.
The Forest Service is retaining the
citation to the cost recovery regulations,
which are beyond the scope of these
directives. Outfitting and guiding
applications and permits are exempt
from cost recovery, unless they take
more than 50 hours to process or
monitor.
Comments. One respondent believed
that priority use permits have monetary
value because of their allocation of use
and access rights and that the agency
should be able to prevent the sale of
those rights. One respondent disagreed
with the assertion in proposed section
41.53k, paragraph 7b, that a permit is
not real property. This respondent
believed that this statement was
inconsistent with a finding by the
Internal Revenue Service (IRS). One
respondent stated that he purchased an
outfitting and guiding permit at an IRS
tax auction and that the Forest Service
allowed the auction to take place,
thereby acknowledging that outfitting
and guiding permits are real property.
Several respondents wanted to revise
proposed section 41.53k, paragraph 4, to
provide appeal rights for performance
ratings.
Response. Forest Service special use
permits are not real property and are not
transferable (36 CFR 251.59). They are a
license to conduct a business on NFS
lands. While an outfitting and guiding
business may be sold, an outfitting and
guiding permit may not, per current
Forest Service directives at FSH
2709.11, section 41.53f, paragraph 4.
This provision remains in the final
directives at section 41.53l, paragraph
7b. Purchasers of an outfitting and
guiding business must apply for and
obtain a permit.
41.53m—Allocation of Use for a Priority
Use Permit
In the proposed directives, this
section was numbered as 41.53l.
Comments. Several respondents
supported the agency’s intent to allocate
use efficiently, particularly given that
service days can go unused for years,
while many potential operators are
unable to obtain the allocation that they
need. Several respondents supported
the requirement to return unused
service days, thereby increasing the
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availability of service days for
reallocation to those who will make use
of them. These respondents believed
that the proposed directives would
potentially open up use in areas that are
not available under current management
practices and would be helpful to
holders who consistently use and pay
for allocated use. One respondent
supported optimum utilization of
service days and redistribution of use
when outfitters and guides underperform by some reasonable margin.
One respondent proposed adjusting
allocations annually instead of once
every 5 years, so that unused service
days or quotas could be made available
to small local livery and recreational
supply businesses that cater to the
public. One respondent stated that use
should be adjusted annually, instead of
every 5 years, to allow unused service
days to be made available for use by the
unguided public. This respondent
recommended dropping proposed
section 41.53l, paragraph 2a. This
respondent also recommended that use
be reallocated on a first-come, firstserved basis through a lottery system, a
common pool, or some other method
that would give access to unguided
recreation. Another respondent was
concerned that proposed section 41.53l
would encourage holders to report more
than their actual use and that surplus
use would not be made available to the
unguided public.
One respondent questioned whether
reallocation of use would be based on
holders’ overall use or on their use in
each authorized area or for each
authorized activity and recommended
that reallocation be based on the highest
percentage of use from among the
authorized areas or activities during the
last 5 years. Several respondents
suggested evaluating use over a 10-year
rather than a 5-year period, since after
a major wildfire or other natural
disaster, it takes longer than 5 years to
return to previous levels of use. One
respondent objected to review of
priority use every 5 years. One
respondent recommended that the
utilization rate be negotiated with
priority use permit holders who operate
in remote areas. Several respondents
suggested that extenuating
circumstances, such as a natural
disaster, a reduction in consumer
confidence, increased placement of
group bookings (which are subject to
change or cancellation), or a variation
due to weather in the length of the
operating season, should be taken into
account in reviewing priority use. One
respondent suggested that extenuating
circumstances exempt priority use
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permit holders from review and
redistribution of allocations of use.
One respondent was concerned that
the effort to reallocate unused priority
use could create an anti-growth
environment and untenable business
conditions for priority use permit
holders. One respondent was concerned
that review of priority use would
require additional Forest Service
resources.
Several respondents recommended
revising proposed section 41.53l,
paragraph 3, to provide for maintaining,
increasing, or decreasing priority use
allocations at the time of renewal,
provided that any change to the
allocations be consistent with the
applicable land management plan,
applicable project decision, or other
appropriate analysis.
Many respondents were concerned
that the proposed directives would
require a reduction in allocation to
priority use permit holders who are in
compliance with their permits. One
respondent believed that a reduction of
service days would cause businesses to
close. Several respondents observed that
the proposed directives would not
provide for returning service days to
holders. Several respondents suggested
that instead of requiring service days to
be taken from priority use permit
holders, the directives should allow
them to contribute service days to a pool
voluntarily without losing them. One
respondent suggested that holders who
contribute service days to the pool
should get them back if they use them
for 2 out of 10 years. One respondent
observed that the proposed directives
would result in a one-way decline in
service opportunities for quality, longterm holders.
Many respondents were concerned
that priority use permit holders would
be required to use all or nearly all of
their allocated use once in a 5-year
period to avoid a reduction in their
allocation. These respondents stated
that it is impossible to achieve a 100
percent utilization rate in the tourism
industry and that therefore it would be
unlikely that holders could recover lost
service days. These respondents stated
that the tourism industry books at 100
percent to achieve a 75 to 85 percent
utilization rate and that average hotel
occupancy in the United States is
approximately 65 percent of capacity.
One respondent noted that to achieve
100 percent of capacity, most businesses
in the tourism industry have to
overbook in peak periods and that this
practice is not allowed by Forest Service
directives and land management plans.
In addition, these respondents believed
that utilization would always be below
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100 percent because of fluctuation in
the business climate, weather, game
populations, snow pack, drought, and
wildfires. Several respondents believed
that even after adding a 10 percent
cushion, allocations would be reduced
because of the difficulty of obtaining the
required utilization rate. Other
respondents cautioned against including
shoulder seasons, when there is
inconsistent demand, and other periods
when the permitted activity is infeasible
in the utilization calculation. One
respondent recommended that the
100 percent utilization requirement
apply only to the peak season.
Several respondents requested that
allocations not be reduced unless
holders’ utilization falls significantly
below the average utilization for other
holders providing the same services in
the same use area during the peak
season. These respondents
recommended that the utilization rate
and the peak season should be
established in consultation with holders
in each use area. These respondents also
recommended that review of priority
use be suspended when economic or
environmental factors have seriously
compromised the ability of holders to
attract business.
Several respondents believed that a
70 percent utilization rate should be
required to avoid a decrease in
allocation of use. One respondent
suggested that if permit holders are not
able to meet the 70 percent threshold,
they should be required to renegotiate
the number of approved service days
with the Forest Service. Another
respondent stated that a 75 percent
utilization rate for 1 out of 5 years was
achievable. One respondent supported
the 10 percent buffer on the utilization
rate for large allocations, as the buffer
would likely be adequate to account for
temporary increases in bookings. This
respondent believed that for small
allocations, a buffer of 15 to 20 percent
would be necessary to accommodate
periodic fluctuations. Another
respondent suggested a 10 percent
buffer in addition to a 70 percent
utilization rate.
One respondent observed that if
holders have an 80 percent utilization
rate, their use should not be cut 10
percent. One respondent believed that
the utilization rate should be the highest
amount of actual use in the last 5 years
plus 20 percent. Another respondent
recommended a utilization rate of actual
use plus 35 percent.
Several respondents suggested adding
10, 15, or 20 percent to allocations for
holders who have a 100 percent
utilization rate. One respondent
suggested removing the limitation in the
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proposed directives that the new
allocation not exceed the old one, so as
to accommodate growth in public
demand. This respondent suggested
increasing holders’ allocations by
20 percent if there is additional demand
and they have a 100 percent utilization
rate for 2 or more of the past 5 years.
One respondent recommended allowing
qualifying holders to remedy the
reduction in use by fully utilizing their
allocation during a reasonable period.
One respondent suggested that
reductions in allocations of use be
subject to administrative appeal.
Response. The Forest Service agrees
that holders should not be allowed to
retain service days or quotas they do not
need. Additionally, the agency agrees
that it is appropriate to provide a margin
above actual use in deciding whether to
adjust allocations, given the effects of
fluctuations in the business climate,
weather, game populations, wildfires,
and natural disasters. Consequently, the
final directives provide that for permits
with more than 1,000 service days or the
equivalent in quotas, holders can retain
their highest use in 1 year during the
past 5 years, plus 15 percent of that
amount, provided that the total does not
exceed the allocation when the permit
was issued. For permits with 1,000
service days or less or the equivalent in
quotas, holders can retain their highest
use in 1 year during the past 5 years,
plus 25 percent of that amount,
provided that the total does not exceed
the allocation when the permit was
issued. Smaller entities, which have
smaller allocations, need a bigger
margin because they do not have the
economies of scale available to larger
entities.
Original allocations are based on
requisite analysis. Any amount of use
that a holder proposes to add above the
original allocation would be considered
a new proposal and would require
environmental analysis.
The directives do not preclude
overbooking. Holders may not exceed
their allocation of use, but overbooking
is a management decision. While
100 percent utilization of an allocation
may be difficult for some operations, the
agency disagrees that 100 percent
utilization of an allocation is
impossible. Experience shows that
many holders fully utilize their
allocations.
A reduction in an allocation of use
would be appealable under 36 CFR part
251, subpart C.
The Forest Service believes that the
customized limitations on and waivers
of allocation adjustments suggested by
respondents would not be affordable to
administer. Additionally, these
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proposed revisions would result in
inconsistent treatment of similarly
situated entities. Therefore the agency is
not adopting these proposed revisions.
Comments. One respondent suggested
provisions to mitigate the effects of the
proposed directives on priority use
permit holders, including allowing them
to apply for a permit amendment to
increase their allocation prior to
implementation of the final directives;
allowing Forest Service officials to
approve requests to increase priority use
allocations for operators with acceptable
ratings, when consistent with the
applicable land management plan; and
providing for increases in allocations
when holders use 100 percent of their
allocation.
Response. The Forest Service does not
believe that there is any need to mitigate
effects of the final directives on priority
use permit holders. Priority use permit
holders may apply for an amendment to
their permit at any time. Applications
are evaluated in accordance with
applicable laws, regulations, directives,
and land management plans and
requisite analysis. Allocations of use
and adjustments to allocations of use are
made in accordance with directives and
applicable land management plans and
requisite analysis. The agency believes
that the determination of whether to
allocate additional use and how much
use to allocate for priority use permit
holders should be informed by a needs
assessment.
Comments. One respondent stated
that the requirement to request and
obtain approval of non-use in current
section 41.53h, paragraph 4, should be
retained. Another respondent
recommended eliminating the
requirement. This respondent stated
that the requirement does not result in
efficient use of allocations and takes too
much time to administer.
Response. The Forest Service agrees
that requests for and approval of nonuse should be eliminated. The process
for approval of non-use is costly to
administer. In the final directives, the
agency has replaced this process with
the criteria for adjusting allocations of
use.
Comments. One respondent suggested
revising proposed section 41.53l,
paragraph 2, to provide for review of
actual use on a monthly basis, taking an
average of all months, annually
adjusting the allocation of use to the
average seasonal use, and shifting all
unused service days or quotas to the
unguided public. This respondent
recommended eliminating proposed
section 41.53l, paragraphs a and b,
which provided for review of use before
renewal, and instead reallocating the
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use to a common pool for unguided and
guided recreational use or reserving it
until a capacity analysis shows that
recreational demand of the unguided
public has been met.
Response. The Forest Service believes
that it would be too costly and is not
necessary to review use monthly. Longstanding Forest Service policy in
current section 41.53f, paragraph 3,
addresses renewal of outfitting and
guiding permits. In the final directives,
this provision is located in section
41.53l, paragraph 4. A needs assessment
is conducted to determine how much
commercial use is appropriate.
Unguided use is not allocated by the
Forest Service.
Comments. One respondent stated
that the value of an outfitting and
guiding business is directly tied to the
number of service days it is allocated
under a permit and that the value of the
business diminishes when the agency
reduces the number of service days
allocated. One respondent stated that
when the respondent bought two
outfitting and guiding businesses, the
banks wanted to know exactly how
many service days would be allocated to
the businesses to determine cash flow
and business value. This respondent
noted that outfitters and guides report
false numbers to protect their service
days and that it is better to pay for
unused service days than to lose those
days and incur devaluation of their
business.
Response. An allocation of use is a
privilege that may be lost through nonuse. Allocations of use are not
determinative of past and future
earnings; rather, allocations of use are
only one aspect of past and future
earnings. In addition, under the existing
and final directives, an outfitting and
guiding permit is not real property, does
not convey any interest in real property,
and may not be used as collateral for a
loan. FSH 2709.11, sec. 41.53f, para.
4a(3) in the current directives and sec.
41.53l, para. 7b, in the final directives.
Comment. One respondent suggested
that proposed section 41.53l, paragraph
1, recognize that Section 802(2) of the
Alaska National Interest Land
Conservation Act (ANILCA) establishes
a policy of giving preference to
subsistence uses over other uses on NFS
lands in the State of Alaska.
Response. The Alaska Region of the
Forest Service has issued a regional
supplement to FSH 2090.23, which
addresses the provisions of Section
802(2) of ANILCA generally in the
context of Forest Service programs in
the State of Alaska. Therefore, the Forest
Service does not believe that it is
necessary to address Section 802(2) of
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ANILCA in the national outfitting and
guiding directives.
Comment. One respondent believed
that by offering the same terms and
conditions to educational and
institutional permit holders as to other
types of permit holders, the proposed
directives would give thousands of
young people easier access to Federal
lands. This respondent believed that
priority use permits facilitate greater
business continuity, consistency, and
longer-term business plans for youth
organizations.
Response. The Forest Service agrees
that it is appropriate to offer priority use
permits to educational and institutional
outfitters and guides and has done so in
the final directives.
41.53n—Management of Priority Use
Pools
This section is new and was added in
response to comments.
Comments. Several respondents
observed that the proposed directives
require drawing from the allocation of
priority use permit holders to stock
temporary use pools and that there is no
way under the proposed directives to
recover these lost service days.
Several respondents observed that
priority use permit holders need
additional service days to expand their
businesses and requested additional
direction regarding how they could
increase their allocation if service days
are available other than through the
permit renewal process.
Many respondents suggested that
pools be established or existing pools be
maintained for priority use permit
holders and that the final directives
establish guidance for priority use
pools, rather than assigning all available
service days to a temporary use pool.
Many respondents recommended that
unused service days from priority use
permits or service days from revoked or
expired priority use permits be assigned
to a priority use pool for a variety of
purposes, including meeting the shortterm needs of priority use permit
holders during a season with heavy
demand; meeting long-term needs of
priority use permit holders by allowing
them to expand their businesses; and
allowing a permit holder who lost
service days after an allocation
adjustment to recover. One respondent
proposed the use pool for the Bob
Marshall Wilderness Area, which is
stocked with voluntary, temporary
contributions from priority use permit
holders, as a model for national priority
use pools.
One respondent suggested that
unused service days be divided equally
between temporary and priority use
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pools. One respondent recommended
that the agency establish a priority use
pool on each administrative unit to
allow for flexibility in and growth of
holders’ businesses.
One respondent observed that river
outfitters and guides who have priority
use permits also have recurring
temporary use and that temporary use
permits aid priority use permit holders
in handling fluctuations in business.
Several respondents observed that state
hunting licenses are allocated by lottery
and that hunting outfitters risk losing
use due to circumstances beyond their
control, such as state limitations on
licenses for certain hunts. One
respondent believed that a pool for
outfitted hunts would be useful and that
any licensed hunter who decides to
contract with an outfitter should be
eligible to apply for use from the pool.
This respondent also observed that
outfitters should not be restricted to
specific geographical areas (such as a
hunt management unit) because this
type of restriction might drive up prices.
Several respondents did not want to
lose existing use pools. They stated that
existing pools of surplus service days
are shared by priority use permit
holders. Another respondent observed
that existing use pools would be
eliminated under the proposed
directives unless they are included in a
land management plan. Several
respondents observed that priority use
permit holders currently contribute to
pools that they can use and that
institutional outfitters and guides have
a separate use pool.
Several respondents believed that
outfitters and guides would not
voluntarily relinquish use if it would be
permanently lost.
One respondent recommended
allowing priority use permit holders to
apply for use from a temporary use pool
more than 30 days in advance.
Response. The Forest Service agrees
that the management of priority use in
some situations would benefit from
establishment of priority use pools and
accordingly has added section 41.53n,
Management of Priority Use Pools, in
the final directives. Under this section,
the authorized officer may establish a
priority use pool when it would benefit
management of outfitting and guiding.
When a priority use pool is established,
it will be stocked by allocating service
days based on a resource capacity
analysis demonstrating that additional
capacity exists; a determination that
service days or quotas have not been
used during the first 5 years of a priority
use permit; or a determination that
service days or quotas may be
reallocated when a priority use permit
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is revoked or not renewed. The
authorized officer may establish
application and operating procedures
for the pool, such as creation of an open
season for short-term allocations.
Additionally, this new section provides
that once short-term needs have been
met and when supported by a needs
assessment and capacity analysis, the
authorized officer may increase
allocations for priority use permit
holders or issue new priority use
permits. Furthermore, this new section
provides that the authorized officer may
shift use between temporary and
priority use pools based on their
utilization.
The Forest Service does not believe
that the amount of use assigned to
temporary and priority use pools should
be predetermined. Rather, the agency
believes that this decision should be
informed by a needs assessment.
Under section 41.53k of the final
directives, priority use permit holders
outside the use area may compete for
use from a temporary use pool during
the open season. Priority use permit
holders inside the use area may compete
for use from a temporary use pool after
the end of the open season, provided
that if a priority use pool has been
established for the same use area,
applications for any remaining
temporary service days may be
restricted to qualified applicants who do
not hold a priority use permit in the use
area.
Existing use pools adopted pursuant
to formal decisions will remain in effect
after issuance of the final directives.
However, they must conform to these
directives.
While holders may voluntarily
contribute use to a pool, voluntary
contributions will not change how the
agency will review utilization of their
allocation.
The Forest Service agrees that pools
are a good management tool for meeting
the needs of hunting outfitters who have
little control over whether their clients
will draw a license in a lottery.
41.53o—Reduction of Use Based on
New or Changed Decisions
In the proposed directives, this
section was numbered as 41.53m.
Comments. One respondent
supported proposed section 41.53l
(section 41.53m in the final directives)
as written. One respondent believed that
allowing holders to retain the highest
amount of actual use in a 5-year period
plus 10 percent of that amount would
commit the Forest Service to growth,
even if it is inappropriate. One
respondent suggested revising proposed
section 41.53m to change the title and
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the text to address both increases and
decreases in use. This respondent
suggested adding a paragraph stating
that use may be increased when
capacity analysis or other assessments
indicate the availability of increased
capacity. Several respondents suggested
revising proposed section 41.53m,
paragraph 3, to qualify that use would
be allocated through issuance of a
prospectus only when existing holders
have sufficient use to sustain their
operations, the amount of new capacity
is sufficient to sustain a new permit
holder, and there is competitive interest.
Additionally, these respondents
suggested following the direction in
proposed section 41.53l, paragraphs 1
through 4, governing allocation of use
for a priority use permit, if appropriate.
Yet another respondent proposed that
reductions in use based on new or
changed decisions be mandatory and
stated that when reductions are needed,
the agency has the authority to reduce
use. One state agency encouraged
voluntary reduction of use to address
game resource management needs.
Response. This section replaces
section 41.53i in the current directives
and has the same purpose, that is, to
establish a procedure for reducing
allocations of use when they are no
longer consistent with the applicable
land management plan or project
decisions implementing the plan. The
Forest Service agrees that voluntary
reductions are desirable. However, if
permit holders will not voluntarily
reduce use, it may be necessary for the
Forest Service to impose proportionate
reductions in use or, when the amount
of remaining use will not support the
number of existing holders, to select
among those holders through a
competitive process. Increases in use or
new capacity are beyond the scope of
this section.
41.53p—Transitional Priority Use.
This section is new and was added in
response to comments.
Comments. One respondent observed
that annual renewal of an institutional
permit was cumbersome for both the
holder and the Forest Service and
welcomed the prospect of obtaining a
priority use permit. Several respondents
suggested creating an interim temporary
use permit that could be authorized for
consecutive 1-year terms for up to 5
years, that would not be limited in the
amount of use that could be assigned to
the permit until conversion to priority
use status, and that could be reissued if
necessary. These respondents suggested
that outfitters and guides with
satisfactory performance and eligibility
for priority use under the current
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outfitting and guiding directives
routinely qualify for an interim
temporary use permit. One respondent
recommended modifying proposed
section 41.53j, paragraphs 4 and 8, to
add the phrase ‘‘or interim temporary
permit’’ so that interim temporary
permits would not be subject to renewal
and that the use they authorized would
be returned to a common pool.
Several respondents supported
conversion from temporary use under
the current directives to priority use.
However, these respondents believed
that there was no affordable mechanism
for the conversion. One respondent
recommended that the directives
provide a reasonable period for
applications for new or modified special
use permits. Several respondents
observed that needs assessments,
resource capacity analyses, and NEPA
compliance required for the conversion
were costly, that these costs would all
be passed on to permit holders through
cost recovery, and that these costs
would be beyond the financial capacity
of many small businesses and
organizations. These respondents
believed that cost recovery would make
conversion from temporary to priority
use unaffordable for many temporary
use permit holders.
Response. The Forest Service agrees
that more direction should be provided
for conversion from temporary to
priority use. Therefore, the agency has
added section 41.53p, Transitional
Priority Use, to the final directives. This
section provides that holders of
temporary use under the current
directives are eligible for reclassification
of their use as transitional priority use
when their use is active and recurring;
their performance has been satisfactory;
they request reclassification within 1
year of the date of publication of these
final directives; and they agree to meet
the application requirements for
conversion to priority use within 5 years
of the date of their request.
Section 41.53p, paragraph 5, in the
final directives describes how the
allocation will be determined for
transitional priority use. When
transitional priority use permit holders
apply for conversion to priority use,
their allocation will be based on their
highest amount of actual use in 1 year
during the past 5 years, plus 25 percent
of that amount if their allocation was
1,000 service days or less or 15 percent
of that amount if their allocation was for
more than 1,000 service days.
Section 41.53p, paragraph 8, in the
final directives provides that for those
holders who elect conversion in a
timely manner, the needs assessment
and capacity analysis necessary to
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determine whether the priority use may
be authorized will be considered
programmatic costs and will not be
subject to processing fees. Thus, for cost
recovery purposes, the agency’s costs for
converting transitional priority use to
priority use will be based on an estimate
of the costs associated with reviewing
the application and conducting the
environmental analysis necessary to
issue a priority use permit for the first
time. Environmental analysis costs
associated with outfitting and guiding
permits for two national forests ranged
from $120 to $8,750. We estimate that
these costs will typically be $1,200.
Additionally, these costs could be
spread over 5 years if necessary. The
typical estimated cost of $1,200 is
comparable to the average cost of $950
for processing applications for all types
of special uses established in a 1995
nationwide study. Adjusted for inflation
the typical average cost would be
$1,345. Applicants may spread these
costs over 5 years, if necessary. Annual
costs for conversion from transitional
priority use to priority use are estimated
to range from $24 to $1,750 per entity.
Thus, the average annual cost is $269
per entity.
41.53q—Administration of Outfitting
and Guiding Permits
In the proposed directives, this
section was numbered as 41.53n.
Comments. One respondent
commented that proposed section
41.53n did not address how permits
with service days on multiple Ranger
Districts would be administered and
suggested that they should be
administered by one Ranger District
only.
Several respondents suggested that
the findings from inspections be subject
to administrative appeal. One
respondent suggested that termination
of permits be subject to administrative
appeal because termination is based on
findings from field inspections that
need to be subject to objective review.
One respondent suggested that the
directives provide at least 90 days
between performance evaluations and
ratings to allow holders to take
corrective action.
One respondent proposed that the
directives require all commercial users
to abide by the same leave-no-trace
standards that apply to noncommercial
users. One respondent suggested that
proposed section 41.53n, paragraph 4,
regarding imposition of an immediate
suspension of a permit to protect public
health and safety or the environment,
reference fish and wildlife specifically
as an integral part of the environment.
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Response. When an outfitting and
guiding permit covers use on multiple
Ranger Districts, the Forest or Grassland
Supervisor has the option of assigning
permit administration to the
supervisor’s office or assigning a lead
Ranger District pursuant to FSM
2704.33 and 2704.34.
Findings from inspections are not
written decisions of the authorized
officer and are therefore not appealable
under 36 CFR part 251, subpart C.
However, the performance rating based
on those findings is a written decision
of the authorized officer relating to
administration of a permit and is
therefore subject to administrative
appeal. While revocation of a permit is
appealable pursuant to 36 CFR
251.60(a)(2)(ii), termination of a permit
is not appealable pursuant to 36 CFR
251.60(a)(2)(iii).
The Forest Service disagrees that the
time provided to take corrective action
should be fixed at 90 days. The
authorized officer needs to have
discretion to determine the appropriate
amount of time to take corrective action,
based on case-specific circumstances.
The authorized officer has discretion
to require compliance with leave-notrace standards. These types of
requirements are usually addressed in
the operating plan, which covers day-today operations.
Consistent with Forest Service
regulations at 36 CFR 251.60(f), the final
directives state that an immediate
suspension may be imposed on all or
part of a permit to protect public health
and safety or the environment. The
agency believes that the term
‘‘environment’’ is broad enough to
include fish and wildlife.
41.53r—Administration of Priority Use
Permits
In the proposed directives, this
section was numbered as 41.53o.
Comments. One respondent observed
that proposed section 41.53o would give
unfettered discretion to authorized
officers. One respondent was concerned
that the agency would not be able to
conduct an annual review of each
permit holder’s operation, given the
agency’s limited resources, and did not
want the agency to establish a
requirement that could not be met. This
respondent observed that competitive
issuance of a permit and reissuance of
a priority use permit depend on the
holder’s past performance and that it is
therefore critical for the agency to
complete performance evaluations. One
respondent suggested conducting
performance evaluations of transitional
priority use permit holders and adding
professional associations to the list of
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consultants in proposed section 41.53o,
paragraph 3.
Response. The agency believes that
authorized officers need discretion in
administering priority use permits.
Performance reviews are necessary to
establish performance ratings, which
serve as the basis for determining
whether enforcement action is necessary
and whether a priority use permit may
be reissued.
The agency agrees that performance
reviews are important in competitive
offerings. Competitive offerings are
typically used for priority use permits,
which are subject to performance
reviews. The agency also agrees that
performance reviews are important for
transitional priority use permit holders
and has therefore included a
requirement for performance
evaluations for transitional priority use
permit holders in section 41.53p,
paragraph 4, of the final directives. The
Forest Service does not believe that it is
necessary to conduct performance
evaluations for temporary use permit
holders, especially as temporary use
will no longer be a stepping stone to
priority use. The Forest Service does not
believe that it is appropriate to consult
professional associations when
performance standards are established,
as doing so could raise concerns under
the Federal Advisory Committee Act.
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FSH 2709.11, Section 37.21b, Flat Fee
for Temporary Use
Comments. A number of respondents
commented on the amount of the flat
land use fee for temporary use. Several
stated that the proposed fee was too
high because it did not accurately reflect
outfitting and guiding revenue, while
others stated that the proposed fee was
too low.
One respondent commented that the
proposed flat fee for temporary use
should not be based on gross revenue.
Some stated that the fee should be
waived for non-profit entities, while
others were concerned that non-profit
entities would be given an unfair
advantage if the fee were waived and
believed that the standard fee policy
should apply to all outfitters and guides.
One respondent stated that the Forest
Service should not establish a flat fee
schedule for temporary use without
changing other outfitting and guiding
fees because the different fee structure
for the same activities would likely
result in unfair competition. Some
respondents noted that non-profit status
does not denote noncommercial status
or eligibility for a fee waiver. One
respondent stated that priority use
outfitters and guides should pay the
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same fee as temporary use outfitters and
guides.
One respondent suggested increasing
the number of service days covered by
the flat fee.
Response. The Forest Service has
several objectives in establishing a flat
land use fee for temporary use permits.
First, the land use fees for these permits
need to be sufficient to cover the cost of
administering them. To meet that
objective, the agency needs to reduce
the administrative cost of calculating
the fees. Applications for these permits
will typically be exempt from cost
recovery because they will involve 50
hours or less to process. However, the
agency estimates that it will cost from
$236 to $512 to screen a temporary use
proposal and to issue and administer a
temporary use permit under the final
directives. Under the final directives,
the agency is likely to collect less in fees
than it costs to issue permits with up to
100 service days and to collect more
than it costs to issue permits with up to
200 service days.
Second, the temporary use permit
system is intended to increase access to
NFS lands; fees for those permits should
not be higher than necessary so as to
encourage participation in the program.
Like land use fees for priority use
permits, the flat fee schedule is based on
3 percent of gross revenue. The flat fee
of $150 for up to 50 service days was
determined by multiplying 50 service
days by $100, which is a typical service
day charge, and multiplying the product
by 3 percent (i.e., 50 × $100 = $5,000;
$5,000 × .03 = $150). Holders of a
temporary use permit will pay a lower
fee than under the current directives if
their service day charge exceeds $100 or
a higher fee if their service day charge
is less than $100.
In most contexts, gross revenue is an
appropriate basis for calculating the
value of special use privileges.
Generally, the gross revenue of a
business conducted on NFS lands is 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
them, 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,’’ which compares land
use fees for outfitting and guiding based
on a percentage of gross revenue that are
charged by the Forest Service with land
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use fees for outfitting and guiding based
on a percentage of gross revenue that are
charged by the State of Idaho (GAO
Report, RCED–97–16, at 7 (Sept. 1996)).
Third, the flat fee should be based on
the market value of the authorized use.
Consequently, the Forest Service does
not believe that fees for non-profit
entities should be waived. The outfitting
and guiding program serves both forprofit and non-profit entities. Non-profit
outfitters and guides are providing
commercial services (36 CFR 251.51).
Some of the largest outfitters and guides
operating on NFS lands are non-profit
entities. Waving fees for non-profit
entities would give them an unfair
advantage.
Comment. One respondent stated that
the agency must clarify FSH 2709.11,
section 37.21c, paragraph 2, Fees for
Commercial Use for Non-Profit
Organizations, and section 37.21k, Fees
for Commercial Use for Educational
Institutions.
Response. FSH 2709.11, sections
37.21c and 37.21k, were not proposed
for revision and are beyond the scope of
these directives.
Comment. One respondent stated that
the proposed directives appear to
conflict with the flat fee policy for
outfitting and guiding land use fees
being developed in the Alaska Region,
since under the proposed directives,
outfitters and guides in the Alaska
Region will pay fees for temporary use
based on a percentage of their gross
revenues. This respondent wondered
whether the national directives or the
regional directives would apply to
temporary use in the Alaska Region.
Response. Land use fees for outfitting
and guiding permits in the Alaska
Region will be determined by the Alaska
Region’s flat fee policy.
FSM 2713.1—Liability and Insurance
Comments. Some respondents
commented that the proposed insurance
standards were reasonable and were
industry standards.
A number of outfitters and guides
were concerned about the Forest
Service’s proposed classification of
levels of risk. These respondents stated
that the definitions of low, medium, and
high risk were arbitrary, confusing, and
untenable and that these classifications
would unfairly penalize quality
operators and unnecessarily limit public
access to activities deemed to be higher
risk. These respondents believed that
risk should be determined by a holder’s
historical safety record, current risk
management plan, and level of training.
Some respondents were concerned that
their outfitting and guiding activities
might be characterized as high risk by
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the agency. Some respondents were
concerned that the Forest Service would
impose unreasonable liability insurance
requirements and thus increase the cost
of insurance premiums. Some
respondents believed that Forest Service
personnel do not have the expertise to
set insurance limits and that minimum
liability insurance levels should be set
by the market for the industry involved,
the degree of risk assessed by an
insurance carrier, and the amount of
exposure for the holder’s business. One
respondent stated that hunting outfitters
should not be required to carry more
than $500,000 in insurance coverage.
Some respondents stated that
allowing Regional Foresters and Forest
Supervisors to increase coverage
amounts could result in too much
variation among administrative units.
One respondent suggested that the
directives state that liability limits may
be adjusted based on the availability of
coverage in the insurance market and
the reasonableness of rates.
One respondent objected to dropping
the requirement to provide proof of
liability insurance for holders of
temporary use permits, another
respondent believed that insurance
requirements for temporary use permits
were unclear, and another respondent
was concerned that temporary use
permits might be held to a lower
standard than priority use permits with
respect to insurance.
Several respondents believed that the
requirement for an endorsement for
contracted services and equipment was
unworkable and unaffordable and
suggested that contractors obtain their
own insurance coverage and certificate
of insurance.
Some respondents stated that it is
unclear why the agency requires a copy
of an insurance policy and that a
certificate of insurance should be
sufficient. Some respondents stated that
other large permit holders, besides the
Boy Scouts of America should be able
to file a single set of insurance papers
with the Forest Service’s National
Insurance Center to lower
administrative costs for the agency and
to reduce the administrative burden for
the field staff.
One respondent recommended
requiring an occurrence policy, which
covers all claims that arise while the
policy is in effect, regardless of whether
the claims are reported during that
period, as that type of policy would
provide better protection for the agency,
outfitters and guides, and the guided
public.
One respondent recommended
clarifying that the list of activities with
inherent risk is not exhaustive by stating
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‘‘activities, such as but not limited to
* * * swimming, boating, skiing
* * *.’’ One respondent recommended
revising the standard outfitting and
guiding permit form, form FS–2700–4i,
to reflect the inherent risk recognized in
FSM 2713.1, paragraphs 1a, b, and c,
because the language in clause IV.G of
the permit subjects holders to strict
liability.
Some respondents believed that it was
appropriate for the Forest Service to be
named as an additional insured and to
be indemnified as required by permits.
One respondent did not believe that
permit holders should be required to
indemnify the United States for its own
gross negligence or willful misconduct.
Several state universities stated that
they could not agree to the
indemnification requirement if it
exceeds state tort liability limits.
One respondent stated that it is not
feasible for holders to provide a safe
operation, as required by the directives.
Response. The Forest Service has
modified FSM 2713.1, paragraph 2d, by
removing the level of risk chart and
replacing it with an exhibit showing
minimum coverage amounts for liability
insurance by type of special use. Many
concessionaires already meet these
requirements, which are consistent with
industry standards and which are
already required in many regions of the
Forest Service.
Under the final directives, as under
the current directives, temporary use
permit holders will be treated the same
as priority use permit holders for
purposes of insurance requirements.
The final directives give holders’
contractors the option of procuring a
separate insurance policy that covers
their services and equipment and that
names the United States as an
additional insured.
The remaining comments on this
section are beyond the scope of these
directives, i.e., address provisions that
were not proposed for revision.
Regardless, the Forest Service believes it
is appropriate for Regional Foresters to
have discretion to increase minimum
requirements for insurance coverage
based on the market for activities
conducted in their region.
The agency needs a copy of
concessionaires’ insurance policies to
verify all aspects of coverage. Unlike
other concessionaires, the Boy Scouts of
America has a single set of insurance
policies that covers its operations
world-wide and therefore needs to file
only one set of insurance papers. If
other entities have a single insurance
policy that covers multiple operations,
they may submit the same policy for
those operations.
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The agency agrees that occurrence
policies are preferable to claims-made
policies. While claims-made polices are
allowed, they may require additional
endorsements, for example, providing
for a 2-year extension for filing claims,
to achieve sufficiency.
The text of FSM 2713.1 makes it clear
that the list of inherent risks is
illustrative, rather than exhaustive. The
agency does not believe that form FS–
2700–4i needs to be modified with
regard to inherent risks, which are more
appropriately addressed in an
assumption of risk form provided by
outfitters and guides to their clients. In
addition, form FS–2700–4i does not
impose strict liability in tort, i.e.,
liability without regard to negligence.
The agency agrees that it is
appropriate to name the United States as
an additional insured on
concessionaires’ policies and to require
indemnification of the United States
under special use permits. These
requirements minimize the liability of
the United States for permit holders’
acts and omissions on NFS lands and
for third-party claims associated with
permit holders’ use and occupancy of
NFS lands. The Forest Service assumes
responsibility for its own acts and
omissions to the extent authorized by
law. The Forest Service believes that
states and state agencies can indemnify
the United States under applicable law.
Where states maintain that they cannot
indemnify the United States beyond
state liability limits, the Forest Service
will agree to accept unconditional
indemnification up to the state liability
limits, supplemented by self-insurance
or procured insurance that is sufficient
to cover the assessed risk of the states’
use and occupancy of NFS lands.
A key component of the Forest
Service’s mission is to address public
health and safety on NFS lands.
Therefore, the agency believes that it is
appropriate to require concessionaires
to operate safely on NFS lands.
Response to Comments on the
Regulatory Certifications in the
Proposed Directives
Environmental Impact
Comments. Several respondents
believed that these directives had the
potential for environmental impact, that
the Forest Service should prepare an
environmental assessment (EA) or
environmental impact statement (EIS)
prior to implementing the directives,
and that failure to do so would violate
NEPA and its implementing regulations.
Response. The Forest Service
disagrees that issuance of these
directives requires documentation of
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environmental analysis in an EA or EIS.
Pursuant to NEPA’s implementing
regulations, the Forest Service
promulgated a series of categorical
exclusions (CEs) from documentation in
an EA or EIS, which are set forth in FSH
1909.15, section 31.12. The specific CE
relied upon by the Forest Service in
publishing both the proposed and final
directives is ‘‘rules, regulations, or
policies to establish Service-wide
administrative procedures, program
processes, or instructions.’’ Publication
of the proposed and final directives falls
squarely within this CE because the
directives establish national policy,
procedures, and direction for
administration of the Forest Service’s
outfitting and guiding program.
However, issuance of a permit under
these directives may trigger the need for
documentation of environmental
analysis under NEPA on a case-by-case
basis.
Regulatory Impact
Comments. One respondent stated
that the agency did not conduct a
Regulatory Flexibility Act analysis on
the proposed directives. Another
respondent stated that the proposed
directives would negatively affect small
businesses. Another stated that they
would diminish opportunities for a
number of small businesses and
organizations. Another commented that
the proposed directives would have a
disastrous effect on rural economies.
Another respondent stated that the
proposed directives would be
detrimental to the value and viability of
existing permits.
One respondent stated that those
outfitters currently operating all or a
substantial portion of their business
under temporary use permits would
have their use automatically and
immediately cut because existing
temporary use permits would be
invalidated and because temporary use
would be limited to 100 service days, an
amount that is less than what is
currently available. One respondent
stated that reduction of service days
would cause businesses to close.
Response. There are three types of
costs potentially incurred by small
entities as a result of implementation of
the final directives: (1) The cost of
environmental analysis associated with
the conversion from transitional priority
use to priority use; (2) an increase in
land use fees for temporary use permits;
and (3) an increase in the cost of
liability insurance. Based on the
threshold Regulatory Flexibility Act
analysis conducted by the agency, the
agency has determined that the final
directives will not have a significant
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effect on a substantial number of small
entities.
With proration of the additional cost
associated with conversion from
transitional priority use to priority use,
no transitional priority use permit
holders will experience additional costs
exceeding 5 percent of their projected
annual gross revenue. Only 1.7 percent
of all outfitting and guiding permit
holders may experience additional costs
equal to 5 percent of their projected
annual gross revenue. Only 1.8 percent
of all outfitting and guiding permit
holders may experience additional costs
exceeding 1 percent of their projected
annual gross revenue, and less than 3.5
percent of all outfitting and guiding
permit holders may experience
additional costs of less than 1 percent of
their projected annual gross revenue.
Moreover, applications for
approximately 70 percent of holders
likely to be eligible for conversion from
transitional priority use to priority use
are likely to be exempt from processing
fees. Finally, holders that are not
exempt from processing fees may
request a reduction of processing fees
per 36 CFR 251.58(c)(1)(ii)(A).
The current minimum land use fee for
an outfitting and guiding permit is $95.
The new land use fee for temporary use
permits will be $150 for up to 50 service
days or the equivalent in quotas. The
new land use fee represents an increase
in $55 for temporary use permits
authorizing the least amount of use. A
$55 increase in fees is likely to represent
1.2 to 1.8 percent of annual gross
revenue for a temporary use permit,
which authorizes a small amount of use,
and typically represents 5 to 20 business
days for an outfitter or guide. Thus, the
increase in fees will constitute a minor
part of the business income.
Increasing the minimum amount of
liability insurance coverage will not
adversely affect small business because
most outfitters and guides voluntarily
carry, and several Forest Service regions
already require minimum coverage
consistent with the minimums required
in the final directives, in accordance
with industry practice.
3. Summary of Revisions to the
Directives
In General
The Forest Service has reformatted
and renumbered FSH 2709.11, section
41.53, in its entirety. The agency has
expanded the number of sections from
12 to 18 (sections 41.53a through
41.53r).
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Objectives
The Forest Service has added section
41.53b, paragraph 2, to facilitate greater
participation in outfitting and guiding
by organizations and businesses that
work with youth and educational
groups.
Policy
The agency has revised section
41.53c, paragraph 2, to state that
permitted access routes and a definition
for that term are included in section
41.53d. The agency has revised
paragraph 3 for greater consistency with
the Wilderness Act. The agency has
added paragraph 7 to address
consideration of applicable provisions
in ANILCA regarding issuance and
administration of outfitting and guiding
permits in the Alaska Region.
New Definitions
The Forest Service has added the
following definitions in alphabetical
order in section 41.53d of the final
directives:
Ancillary Service. A service that
supports use authorized by an outfitting
and guiding permit and that is provided
by a party other than the holder or the
holder’s employees or agents. This
definition clarifies what constitutes an
ancillary service.
Open Season. A period specified by
the authorized officer during which
eligible applicants can apply for service
days from a temporary or priority use
pool. This definition clarifies how use
in a temporary or priority use pool may
be obtained.
Permitted Access Route. Any road or
trail that a holder is authorized to use
under an outfitting and guiding permit
or operating plan for purposes of
pedestrian, stock, or vehicular access.
This definition clarifies that a permit
may specify which access routes a
holder may use.
Priority Use Pool. A pool of service
days or quotas in a use area that may be:
1. Distributed seasonally to priority
use permit holders in that use area and
returned to the pool for redistribution
during the next open season; or
2. Distributed for the term of a permit
to increase use allocated under priority
use permits or to establish use for new
priority use permits. This definition
clarifies the purpose and function of
priority use pools.
Temporary Use Pool. A pool of
service days or quotas in a use area that
are reserved for short-term, nonrecurring, seasonal distribution during
an open season to qualified applicants
who do not hold a priority use permit
in that use area, and thereafter may be
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distributed to all qualified applicants on
a first-come, first-served basis. This
definition clarifies the purpose and
function of temporary use pools.
Transitional Priority Use. Interim
redesignation of temporary use as
classified under the Forest Service’s
June 12, 1995, outfitting and guiding
policy (60 FR 30830), for holders who
meet all the requirements in section
41.53p. This definition clarifies the
agency’s intent with regard to
conversion of temporary use to priority
use.
Use Area. Any geographical
configuration, such as a Ranger
Districts, a wilderness areas, Wild and
Scenic River, or National Forest, that
allows for efficient management of
temporary and priority use pools. This
definition clarifies that the authorized
officer has the discretion to determine
the appropriate geographical area for
efficient management.
Unchanged Definitions
Revised Definitions
Applications
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The agency has revised the following
definitions to read as follows:
Quota. An allocation of use that is
measured as the number of stock per
trip, people at one time, trips per hour
or per day, the number of launches per
day, or other unit of measure other than
a service day; that is consistent with
applicable land management plan
guidance; and that is established in a
programmatic or project decision. The
agency has modified this definition to
be consistent with terminology used
elsewhere in the final directives.
Service Day. An allocation of use
constituting a day or any part of a day
on National Forest System lands for
which an outfitter or guide provides
services to a client. The total number of
service days is calculated by
multiplying each service day by the
number of clients on the trip. As
worded originally, this definition would
have erroneously calculated the
capacity of an entire outfitted and
guided trip, instead of defining a single
service day.
Temporary Use. Short-term, nonrenewable outfitting or guiding use that
is authorized in increments of 50 service
days, up to a maximum of 200 service
days in a 180-day period. The agency
modified this definition to be consistent
with changes made to section 41.53j.
Removed Definition
The agency has removed the
definition for incidental use and has
replaced it with the definition for
temporary use.
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The agency is retaining the definition
of transportation livestock in section
41.53c of the current directives and will
not adopt the proposed term ‘‘livestock
use’’. The remaining definitions in the
proposed directives remain unchanged.
Land Use Management
The Forest Service has modified
section 41.53e slightly. In paragraph 1a,
the agency has deleted the following
phrase: ‘‘consider whether authorizing
the activities would impede the Forest
Service’s ability to meet the recreational
and other goals of the Wilderness Act.’’
The agency has revised paragraph 2 to
provide that resource capacity analysis
may be conducted when monitoring
demonstrates that impacts associated
with the use may exceed desired
conditions. The Forest Service has
revised paragraph 2c to add the phrase
‘‘and visitor use trends.’’
The Forest Service has reversed the
order of paragraphs 1 and 2 and has
revised paragraph 1 of section 41.53h to
state that proposals and applications to
use and occupy NFS lands for outfitting
and guiding shall be evaluated pursuant
to 36 CFR 251.54 and FSM 2712. The
agency has revised section 41.53h,
paragraph 2, to clarify that applicants
for priority use permits will use form
SF–299 and that applicants for
temporary use permits will use a new
form, Application and Temporary
Special Use Permit for Outfitting and
Guiding.
Operations
The agency has revised section 41.53i,
paragraph 5, to provide that the holder’s
contractor may provide a separate
insurance policy that covers the
contractor’s services and equipment and
that names the United States as an
additional insured. The agency has
redesignated the endorsement exhibit as
2713.1, exhibit 02.
Special Uses Streamlining
The agency has revised section 41.53j,
Issuance of Temporary Use Permits, as
follows:
Paragraph 1 clarifies that all
temporary use will be authorized using
the new form, Application and
Temporary Special Use Permit for
Outfitting and Guiding, and increases
the number of service days that may be
allocated for temporary use permits to
200.
Paragraph 2 provides that only 1
temporary use permit may be issued per
180 days.
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Paragraph 3 was revised to clarify
how permits will be issued noncompetitively.
Paragraph 10 was renumbered as
paragraph 5.
Paragraph 6 replaces proposed
paragraph 12 and identifies the
elements required in an operating plan
for a temporary use permit.
Paragraph 7 replaces proposed
paragraph 11 and directs authorized
officers not to conduct performance
evaluations for temporary use permit
holders.
Paragraph 8 is new and provides for
consideration of past performance in
deciding whether to issue temporary use
permits.
The agency has moved paragraphs in
section 41.53j addressing operation of
temporary use pools to new section
41.53k, Management of Temporary Use
Pools. Section 41.53k in the final
directives provides that the authorized
officer may establish a temporary use
pool and develop application and
operating procedures for the pool.
Paragraph 2 provides that the
authorized officer may establish one or
more open seasons to facilitate
administration and equitable
distribution of service days from the
pool. Paragraph 2a provides that during
an open season, qualified applicants
other than holders of priority use
permits in the use area may apply for
service days from the pool. Paragraph 2b
provides that once an open season ends,
any use remaining may be distributed
on a first come, first-served basis,
including to priority use permit holders
in the use area, provided that if a
priority use pool has been established
for the same area, applications for any
remaining use may be restricted to
qualified applicants who do not hold a
priority use permit. Paragraph 2c
provides that upon termination of a
temporary use permit, all service days
or quotas assigned to that permit will be
placed in the temporary use pool for the
use area. This provision replaces
proposed 41.53j, paragraph 8. Paragraph
2d provides the basis for allocation of
use to temporary use pools and matches
the basis for allocation of use to priority
use pools in section 41.53n of the final
directives. Paragraph 2e provides that
the authorized officer may shift service
days and quotas between temporary and
priority use pools based on their
utilization.
The agency has redesignated section
41.53k in the proposed directives as
section 41.53l in the final directives.
Paragraph 1 clarifies that priority use
may be authorized under a term permit,
while temporary use may not. The other
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paragraphs in this section remain
unchanged.
The agency has redesignated section
41.53l, Allocation of Use for a Priority
Use Permit, in the proposed directives
as section 41.53m in the final directives.
Paragraphs 2a and 3b revise the amount
of use above actual use that a holder
may retain as an allocation. Holders
with 1,000 service days or less may
retain the highest amount of use in 1
year during the past 5 years, plus 25
percent of that amount, provided that
the total not exceed the allocation when
the permit was issued. The agency has
edited paragraphs 4, 4a, and 4b for
clarity.
Section 41.53n, Management of
Priority Use Pools, is new. This section
provides for establishment of priority
use pools and application and operating
procedures for the pools at the
authorized officer’s discretion.
Paragraph 1 addresses short-term
allocations that will be returned to the
pool at the end of the year. Short-term
allocations must be authorized under a
temporary permit using the new form,
Application and Temporary Special Use
Permit for Outfitting and Guiding.
Paragraph 2 addresses distribution from
the pool after short-term allocation
requests have been met. Paragraph 3
provides the basis for allocating service
days to a priority use pool. Paragraph 4
provides that the authorized officer may
shift service days between temporary
and priority use pools based on their
utilization.
The agency has redesignated section
41.53m, Reduction of Use Based on New
or Changed Decisions, in the proposed
directives as section 41.53o in the final
directives.
Section 41.53p, Transitional Priority
Use, is new. This section provides that
holders of temporary use under the
current directives are eligible for
reclassification of their use as
transitional priority use when their use
is active and recurring; their
performance has been satisfactory; and
they request reclassification of their use
as transitional priority use within 1 year
from the date of publication of the final
directives. Paragraph 2 provides that
reclassification of transitional priority
use as priority use must be supported by
a needs assessment, resource capacity
analysis, or other pertinent analysis and
is not guaranteed. Paragraph 3 provides
that the permit may be extended
annually each year until the application
for reclassification is granted or denied.
Paragraph 4 provides that performance
evaluations will be conducted on
transitional priority use holders.
Paragraph 5 provides that the allocation
for a transitional priority use permit will
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be determined by the highest actual use
in 1 year during the last 5 years, plus
25 percent of that amount for permits
with 1,000 service days or less or 15
percent of that amount for permits with
more than 1,000 service days provided
that the total may not exceed the highest
amount of use allocated during that
period. Paragraph 6 provides that a
purchaser of a business that holds a
temporary use permit is not guaranteed
reclassification of transitional priority
use as priority use. Paragraph 7 provides
that if supported by a needs assessment,
transitional priority use must be
reclassified as priority use within 5
years of the date of the request.
Paragraph 8 provides that the cost of a
needs assessment and capacity analysis
needed to determine whether
transitional priority use may be
reclassified will be considered
programmatic and will not be subject to
processing fees. Paragraph 9 provides
that work associated with
reclassification of transitional priority
use as priority use that is subject to cost
recovery fees may be covered by a major
or master cost recovery agreement
spanning more than 1 year, with fees
spread over the term of the agreement.
Paragraph 10 provides that if holders of
a temporary use permit are ineligible for
reclassification of their use as
transitional priority use, their use will
be reallocated to a temporary use pool
upon expiration of their permit.
Permit Administration
The agency has redesignated section
41.53n, Administration of Outfitting and
Guiding Permits, in the proposed
directives as section 41.53q in the final
directives.
The agency has redesignated section
41.53o, Administration of Priority Use
Permits, in the proposed directives as
section 41.53r in the final directives.
Additionally, the agency has modified
paragraph 1 to clarify that temporary
use may not be authorized under a term
permit.
Flat Fees for Temporary Use Permits
The agency has modified section
37.21b to extend the flat fee rate for up
to 200 service days.
Changes to the Insurance Directives
The Forest Service has modified FSM
2713.1, paragraph 2d, by removing the
level of risk chart and replacing it with
an exhibit showing minimum coverage
amounts for liability insurance by type
of special use. The Endorsement for
Contracted Outfitting and Guiding
Services and Equipment has been
renumbered as exhibit 02.
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4. Regulatory Certifications for the
Final Directives
Environmental Impact
These final directives will revise
national policy governing
administration of special use permits for
outfitting and guiding. FSH 1909.15,
section 31.12, paragraph 2 (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 agency has
concluded that these final directives fall
within this category of actions and that
no extraordinary circumstances exist
which would require preparation of an
environmental assessment or
environmental impact statement.
Regulatory Impact
These final directives have been
reviewed under USDA procedures and
Executive Order 12866, as amended by
Executive Order 13422, on regulatory
planning and review. The Office of
Management and Budget has
determined that these are not significant
directives. These final directives 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, these final
directives are not subject to Office of
Management and Budget review under
Executive Order 12866, as amended by
Executive Order 13422.
These directives have also been
considered in light of the Regulatory
Flexibility Act (RFA) (5 U.S.C. 602 et
seq.). There are three types of costs
potentially incurred by small entities as
a result of implementation of the final
directives: (1) The cost of environmental
analysis associated with the conversion
from transitional priority use to priority
use; (2) an increase in land use fees for
temporary use permits; and (3) an
increase in the cost of liability
insurance. Based on the threshold RFA
analysis conducted by the agency, the
agency has determined that the final
directives will not have a significant
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effect on a substantial number of small
entities.
With proration of the additional cost
associated with conversion from
transitional priority use to priority use,
no transitional priority use permit
holders will experience additional costs
exceeding 5 percent of their projected
annual gross revenue. Only 1.7 percent
of all outfitting and guiding permit
holders may experience additional costs
equal to 5 percent of their projected
annual gross revenue. Only 1.8 percent
of all outfitting and guiding permit
holders may experience additional costs
exceeding 1 percent of their projected
annual gross revenue, and less than 3.5
percent of all outfitting and guiding
permit holders may experience
additional costs of less than 1 percent of
their projected annual gross revenue.
Moreover, applications for
approximately 70 percent of holders
likely to be eligible for conversion from
transitional priority use to priority use
are likely to be exempt from processing
fees. Finally, holders that are not
exempt from processing fees may
request a reduction of processing fees
per 36 CFR 251.58(c)(1)(ii)(A).
The current minimum land use fee for
an outfitting and guiding permit is $95.
The new land use fee for temporary use
permits will be $150 for up to 50 service
days or the equivalent in quotas. The
new land use fee represents an increase
in $55 for temporary use permits
authorizing the least amount of use. A
$55 increase in fees is likely to represent
1.2 to 1.8 percent of annual gross
revenue for a temporary use permit,
which authorizes a small amount of use,
typically 5 to 20 business days. Thus,
the increase in fees will constitute a
minor part of the business’s income.
Increasing the minimum amount of
liability insurance coverage will not
adversely affect small businesses
because most outfitters and guides
voluntarily carry, and several Forest
Service regions already require,
minimum coverage consistent with the
minimums required in the final
directives, in accordance with industry
practice.
Based on the foregoing, the agency
has determined that these final
directives will not have a significant
economic impact on a substantial
number of small entities because the
directives will not impose new recordkeeping requirements on them; will not
affect their competitive position in
relation to large entities; and will not
significantly affect their cash flow,
liquidity, or ability to remain in the
market.
To the contrary, the efficiencies and
consistency to be achieved by the final
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outfitting and guiding directives will
benefit small businesses that seek to use
and occupy NFS lands by providing the
potential for greater business continuity
for outfitters and guides and by
reducing the frequency of timeconsuming and sometimes costly
processing of special use applications.
The benefits cannot be quantified and
are not likely to substantially alter costs
to small businesses.
No Taking Implications
The Forest Service has analyzed these
final directives in accordance with the
principles and criteria contained in
Executive Order 12630 and has
determined that the final directives will
not pose the risk of a taking of private
property.
Civil Justice Reform
These final directives have been
reviewed under Executive Order 12988
on civil justice reform. Upon adoption
of the final directives, (1) All State and
local laws and regulations that are in
conflict with the final directives or that
will impede their full implementation
will be preempted; (2) no retroactive
effect will be given to the final
directives; and (3) they will not require
administrative proceedings before
parties may file suit in court challenging
their provisions.
Federalism and Consultation and
Coordination With Indian Tribal
Governments
The agency has considered these final
directives under the requirements of
Executive Order 13132 on federalism
and has concluded that the final
directives conform 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
agency has determined that no further
assessment of federalism implications is
necessary.
Moreover, these final directives do
not have tribal implications as defined
by Executive Order 13175, entitled
‘‘Consultation and Coordination With
Indian Tribal Governments,’’ and
therefore advance consultation with
tribes is not required.
Energy Effects
These final directives have been
reviewed under Executive Order 13211,
‘‘Actions Concerning Regulations That
Significantly Affect Energy Supply,
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53845
Distribution, or Use.’’ The agency has
determined that these final directives do
not constitute a significant energy action
as defined in the Executive Order.
Unfunded Mandates
Pursuant to Title II of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1531–1538), the agency has assessed the
effects of these final directives on State,
local, and tribal governments and the
private sector. These final directives
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.
Controlling Paperwork Burdens on the
Public
These final directives do 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. Any information collected from
the public that will be required by these
final directives has been approved by
the Office of Management and Budget
and assigned control number 0596–
0082. Accordingly, the review
provisions of the Paperwork Reduction
Act (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR part
1320 do not apply.
5. Access to the Final Directives
The Forest Service organizes its
directive system by alphanumeric codes
and subject headings. The intended
audience for this direction is Forest
Service employees charged with issuing
and administrating outfitting and
guiding special use permits. To view the
final directives, visit the Forest Service’s
Web site at http://www.fs.fed.us/
specialuses/. Only those sections of the
FSM and FSH that are the subject of this
notice have been posted, specifically,
FSH 2709.11, sections 37.21b and
41.53a through 41.53r, and FSM 2713.1.
Alternatively, the entire chapters may
be viewed at http://www.fs.fed.us/im/
directives/.
Dated: September 4, 2008.
Sally Collins,
Associate Chief.
[FR Doc. E8–21618 Filed 9–16–08; 8:45 am]
BILLING CODE 3410–11–P
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| File Type | application/pdf |
| File Title | Document |
| Subject | Extracted Pages |
| Author | U.S. Government Printing Office |
| File Modified | 2008-09-17 |
| File Created | 2008-09-17 |