E7-20659. Proposed Directives for Forest Service Outfitting and Guiding Special Use Permits and Insurance Requirements for Forest Service Special Use Permits

AGENCY:

Forest Service, USDA.

ACTION:

Notice of proposed directives; request for public comment.

SUMMARY:

The Forest Service is proposing changes to directives governing special use permits for outfitting and guiding conducted on National Forest System lands by simplifying the application and administration process; establishing a flat land use fee for temporary use permits; developing a process for allocation of use on a first-come, first-served 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 to other types of permit holders; and clarifying policy for priority use permits governing performance, inspections, and allocation of use. In addition, the Forest Service is proposing changes to a directive governing insurance requirements for Forest Service special use permits. Public comment is invited and will be considered in development of the final directives.

DATES:

Comments must be received in writing by January 17, 2008.

ADDRESSES:

Send comments electronically by following the instructions at the Federal eRulemaking portal at http://www.regulation.gov. Comments also may be submitted by mail to U.S. Forest Service, Attn: Carolyn Holbrook, Recreation and Heritage Resources Staff (2720), 1400 Independence Avenue, SW., Stop 1125, Washington, DC 20250-1125. If comments are sent electronically, the public is requested not to send duplicate comments by mail. Please confine comments to issues pertinent to the proposed directives, explain the reasons for any recommended changes, and, where possible, reference the specific section and wording being addressed.

All comments, including names and addresses when provided, will be placed in the record and will be available for public inspection and copying. The public may inspect comments received on these proposed directives in the Office of the Director, Recreation and Heritage Resources Staff, 4th Floor Central, Sidney R. Yates Federal Building, 14th and Independence Avenue, SW., Washington, DC, on business days between 8:30 a.m. and 4 p.m. Those wishing to inspect comments are encouraged to call ahead at [phone] to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT:

Carolyn Holbrook, [phone], Recreation and Heritage Resources Staff.

SUPPLEMENTARY INFORMATION:

1. Background and Need for the Proposed 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 (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. Any proposed changes that are adopted would be incorporated as appropriate in the standard special use permit for outfitting and guiding, form FS-2700-4i, or other applicable forms.

In addition, the Forest Service is proposing to update direction on the minimum amounts of insurance coverage required for special use permits, including outfitting and guiding permits. While this direction applies to special uses generally, it is particularly important for outfitting and guiding, which can entail significant risk and severity of injury.

2. Section-by-Section Analysis of Proposed Changes to Outfitting and Guiding Directives

In General

Chapter 40, section 41.53, of Forest Service Handbook (FSH) 2709.11 would be reformatted and renumbered in its entirety. The number of sections would be expanded from 12 to 15 (41.53a through 41.53o).

Policy

Proposed section 41.53c, paragraph 5, would be revised to provide that outfitting and guiding authorized under a term permit be addressed in a supplement to the term permit rather than in the operating plan. A Forest Service form would be created for this purpose that would incorporate clauses from the standard outfitting and guiding permit, form FS-2700-4i. Additionally, paragraph 6 would be added to clarify who can hold an outfitting and guiding permit.

New Definitions

In proposed section 41.53d, definitions for the following terms would be added in alphabetical order to the list of definitions currently in section 41.53c:

Allocation of Use. An amount of use allocated to a holder that is measured in service days or quotas and that is enumerated in a programmatic or project decision that is consistent with the applicable land management plan. This definition, excerpted from ID 2709.11-2005-1, would be added to clarify how use will be measured.

Assigned Site. A site, such as a base or drop camp, picnic area, boat launch, or helispot, that is authorized for use and occupancy by a holder and for which a fee is paid by that holder. This definition, from FSH 2709.11, section 37.05, with minor revisions, would be added to facilitate permit administration.

Commercial Use or Activity. Any use or activity on National Forest System lands (a) where an entry or participation fee is charged or (b) where the primary purpose is the sale of a good or service and, in either case, regardless of whether the use or activity is intended to produce a profit (36 CFR 251.51). This definition, excerpted from 36 CFR 251.51, would be added to clarify that the for-profit or not-for-profit status of entities does not determine whether they are conducting a commercial use.

Controlling Interest. In the case of a corporation, an interest, beneficial or otherwise, of sufficient outstanding voting securities or capital of the business so as to permit the exercise of managerial authority over the actions and operations of the corporation or election of a majority of the board of directors of the corporation. In the case of a partnership, limited partnership, joint venture, or individual entrepreneurship, a beneficial ownership of or interest in the entity or its capital so as to permit the exercise of managerial authority over the actions and operations of the entity. In other circumstances, any arrangement under which a third party has the ability to exercise management authority over the actions or operations of the business. This definition, excerpted from 36 CFR 251.120, would be added for consistency with that rule and to clarify what constitutes a controlling interest for different types of business entities.

Livestock Use. Use of pack and saddle stock authorized in connection with an outfitting and guiding permit, expressed in animal months and by type of animal. A cross-reference for this definition in FSM 2234.11 would be added to be consistent with terminology in Forest Service grazing policy.

Needs Assessment. An assessment of public or agency need for authorized outfitting or guiding activities. This definition would be added to clarify an important step in deciding what types of public services are needed on National Forest System lands.

Quota. An allotment of use 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 the applicable land management plan guidance and established in a programmatic or project decision. This definition, adopted from ID 2709.11-2005-1, would be added to clarify that use may be allocated in a unit of measure other than a service day when consistent with the applicable land management plan guidance or approved in a programmatic or project decision. In contrast to service days, which allocate use annually, quotas set limits on the number of people or livestock that may be present at one time.

Resource Capacity. Amount of overall use an area can sustain without detrimental social or physical resource impacts. This definition would be added to clarify an important step in deciding where and how much use is appropriate in an area under analysis.

Service Day. An allocation of use derived from a day or any part of a day on National Forest System lands for which an outfitter or guide provides services to a client, multiplied by the number of clients on the trip. This definition, found in chapter 30 of FSH 2709.11 on fee determination and ID 2709.11-2007-1, would be added to chapter 40 to facilitate permit administration. In addition, this definition would be revised to conform to the agency's concept of a service day for purposes of allocation of outfitting and guiding use, which is based on the number of days or parts of days services are provided on National Forest System lands, as well as the number of clients on a trip.

Revised Definitions

The following definitions would be revised to read as follows:

Guiding. Providing services or assistance (such as supervision, protection, education, training, packing, touring, subsistence, transporting people, or interpretation) for pecuniary remuneration or other gain to individuals or groups on National Forest System lands. The term “guide” includes the holder's employees and agents. This definition would be modified to make it consistent with revisions made to the definition during rulemaking (69 FR 41946, July 13, 2004).

Holder. An individual or entity that holds a special use permit authorizing outfitting or guiding activities on National Forest System lands. This definition would be revised to apply to entities that have received a permit rather than to applicants.

Outfitting. Renting on or delivering to National Forest System lands for pecuniary remuneration or other gain any saddle or pack animal, vehicle, boat, camping gear, or similar supplies or equipment. The term “outfitter” includes the holder's employees and agents. This definition would be revised to make it consistent with revisions made to the definition during rulemaking (69 FR 41946, July 13, 2004).

Priority Use. Authorization of use for up to 10 years, based on the holder's past use and performance and applicable programmatic or project decision to allocate use. Except as provided in 36 CFR part 251, subpart E, authorizations providing for priority use are subject to renewal (FSH 2709.11, sec. 41.53k). This definition would be revised for better syntax.

Renewal. The issuance of a new priority use permit for the same use to the same holder upon expiration of the holder's current priority use permit. This definition would be revised to clarify that renewal applies only to priority use permits and not to temporary use permits.

Temporary Use. Authorization of a minor, non-recurring outfitting or guiding activity for one season or less. This definition would be revised for consistency with the concept of temporary use in proposed section 41.53j.

Removed Definition

The definition for incidental use would be removed and replaced with the proposed definition of temporary use.

Land Use Management

Proposed section 41.53e would be new direction that would address needs assessments, resource capacity analysis, and allocation of use for outfitting and guiding consistent with agency policy for land use management generally and land management planning. These subjects are not addressed in the current directive.

Applicable Authority

Proposed section 41.53g, paragraph 1, would cite the Federal Lands Recreation Enhancement Act (REA), rather than Section 4 of the Land and Water Conservation Fund Act (LWCFA), as the authority for outfitting and guiding permits. REA supplanted the authority in the LWCFA for issuing special recreation use permits. Proposed section 41.53g, paragraph 1, also would cite the Term Permit Act of 1915 to acknowledge that in some circumstances outfitting and guiding may be authorized under that authority.

Operations

With the increase in demand for limited outfitting and guiding opportunities, entrepreneurs are sometimes proposing unacceptable business practices. For example, some permit holders are proposing to serve as brokers for outfitters and guides, whereby the holders would contract with outfitters and guides for all aspects of the authorized services. This practice does not meet the intent of the special uses regulations at 36 CFR part 251, subpart B, which require the holder to be technically qualified to provide authorized services and contemplate that the holder control day-to-day operations, maintain all required insurance coverage, and serve as the principal owner of the business assets. Current policy does not address these requirements effectively. Accordingly, proposed section 41.53i, paragraph 5, would require the holder or the holder's employees to conduct the day-to-day activities authorized by the permit, subject to specific exceptions enumerated in paragraphs 5a through 5c. These exceptions would allow the holder to contract for services and equipment, subject to certain conditions.

To ensure that services and equipment contracted by the holder are covered by the holder's insurance policy, proposed section 41.53i, paragraph 5, also would require the holder's insurance policy to include an endorsement covering contracted equipment and services. The endorsement would be included in insurance directives at FSM 2713.1, paragraph f, exhibit 01. Proposed section 41.53i, paragraph 5, would give holders the flexibility to contract for needed services and equipment, while protecting the public, holders, and the United States.

Specifically, proposed section 41.53i, paragraph 5a, would allow certain specified ancillary services to be provided by a party other than the holder or the holder's employees, (other than unanticipated, intermittent ancillary services authorized by proposed section 41.53i, paragraph 5c), but only with prior written approval from the authorized officer, provided that certain conditions are met. These specified ancillary services would include provision of special equipment or livestock; food and shuttle services; and for a limited number of trips, a specialized guide for people with disabilities or for highly technical trips.

Proposed section 41.53i, paragraph 5b, would allow a holder authorized to provide solely outfitting services to contract with a guide, but only with the prior written approval of the authorized officer, based upon a finding that the following conditions are met:

(1) The services of the contracted guide are covered under the contracting holder's operating plan.

(2) The contracted guide has all required state licenses.

(3) The contract for guiding services states that the contracting holder remains responsible for compliance with the terms of the permit in connection with provision of guiding services.

(4) The contracting holder will exercise management authority over all the day-to-day field operations of the business, including guiding services covered by the contract.

When on a particular day a holder lacks sufficient equipment or guides to accommodate the holder's customers, proposed section 41.53i, paragraph 5c, would allow the holder, without prior written approval from the authorized officer, to contract for additional equipment or guides from another Forest Service outfitting and guiding permit holder. The contracted equipment and services would be covered under the permit and operating plan of the contracting holder.

Special Uses Streamlining

Section 41.53j, paragraph 12, of this proposed directive would decrease administrative costs of temporary use permits for both the Forest Service and permit holders by eliminating the need for annual performance evaluations for these permits. This approach is consistent with the rationale for the Department's special uses streamlining regulations, promulgated at 36 CFR part 251, subpart B (63 FR 65949, November 30, 1998), to maximize efficiencies in the special uses program.

Under proposed section 41.53j, temporary use permits would be issued for minor, non-recurring outfitting and guiding activities for one season or less and would not be subject to renewal, consistent with current policy. Examples of temporary use include a day trip conducted by an educational institution.

As competition for limited outfitting and guiding opportunities has increased, the agency has become aware of the need to enhance availability of temporary use. To address this need, proposed section 41.53j, paragraphs 5, 6, and 7, would provide for allocation of temporary use service days or quotas from a common pool on a first-come, first-served basis throughout the calendar year. Upon termination of a temporary use permit, all service days or quotas allocated to the holder of that permit would be returned to the common pool for redistribution during the next calendar year. Additionally, priority use service days or quotas that have not been used within the first five years of a priority use permit or upon renewal of a priority use permit may be reallocated to the common pool for temporary use permits. This revision would increase the availability of use days for non-recurring outfitting and guiding.

Supporting Small Businesses

Proposed section 41.53k, paragraphs 2 and 3, would streamline administration of priority use by establishing a probationary 2-year permit term that could be extended based upon satisfactory performance. This proposed revision would replace the current, more cumbersome system of conversion from temporary to priority use. This proposed revision also would benefit applicants by allowing longer-term business planning than temporary permits that do not exceed one year and that have no assurance of renewal the following year.

Under current policy, allocation of use for a priority use permit holder can be reduced if the holder uses less than 70 percent of the assigned use in each of three consecutive years. Adverse impacts on tourism from the events of September 11, 2001, and increasing numbers of large fires on National Forest System lands have demonstrated the need for modification of policy on adjusting allocation of use for priority use permit holders who do not use all their allotted service days. Current policy may penalize holders for actions outside their control and does not allow them to regain their original allocation.

Proposed section 41.53l would provide for review of actual use after five years and adjustment of the allocation of use to match the highest amount of actual use in one calendar year during that period. In addition, ten percent of this amount would be added to the allocation to account for market fluctuations, availability of state hunting licenses, and natural phenomena (such as forest fires or floods) that may have adversely affected the holder's ability to utilize the authorized use fully, provided that the combination of the highest amount of actual use in one calendar year and the additional ten percent of use could not exceed the original amount of allocated use. This proposed change would more accurately reflect the time necessary to adjust to evolving market trends, would give the holder a buffer to manage cancellation of reservations, and would bring predictability to elements affecting business planning decisions. Additionally, this adjustment would release unused priority use days to other holders.

10-Year Term for Educational and Institutional Groups

By removing section 41.53l on institutional and semi-public outfitting and guiding in the current directive, this proposed directive would apply the Forest Service's policy on priority use permits, including the maximum permit term of ten years, to institutional and semi-public groups, such as youth, educational, and religious groups. Currently, institutional and semi-public groups may hold only a temporary use permit of one year or less. Many of the largest holders in terms of client use and revenue are institutional groups. This change would facilitate greater business continuity and provide consistency and equity with other types of outfitting and guiding.

Consistent with removing direction in current section 41.53l on institutional and semi-public outfitting and guiding and proposed changes to streamline administration of temporary use, the Forest Service is proposing to change the title of FSH 2709.11, section 37.21b, from “Fee for Temporary Use Permits for Incidental Use,” to “Flat Fee for Temporary Use Permits,” and revise the text to establish a flat fee for temporary use permits when adjusted gross revenue for use authorized by those permits is less than $10,000 for 50 or fewer service days or less than $20,000 for 51 to 100 service days.

Permit Administration

Proposed section 41.53n would address the grounds for revocation and suspension of an outfitting and guiding permit. This proposed section also would address applicable procedures for revocation and suspension, including immediate suspension, in accordance with applicable regulations.

Paragraphs 3 and 4 of proposed section 41.53o, governing administration of priority use permits, would clarify requirements for performance standards developed by the Forest Service and would require development of a scoring system or other means for correlating the standards to performance ratings.

Paragraph 5 of proposed section 41.53o would clarify the consequences (e.g., letter of probation, suspension, or revocation) of adverse performance ratings.

Paragraph 6 of proposed section 41.53o would clarify notice requirements for suspension or revocation of a priority use permit, the requirement for a reasonable opportunity to take corrective action prescribed by the authorized officer, and the availability of appeal of adverse annual performance ratings and a decision to take adverse action based on those ratings.

Paragraphs 7 and 8 would clarify that the findings from inspections which are used as a basis for performance ratings are not subject to administrative appeal.

3. Analysis of Proposed Changes to the Insurance Directive

The Forest Service has determined that direction on insurance required for special use permits is obsolete. Specifically, minimum amounts of liability insurance coverage for special use permits enumerated in Forest Service Manual (FSM) 2713.1 are too low. In addition, current FSM 2713.1 does not provide guidance on distinguishing among different levels of risk in determining the minimum amount of liability insurance coverage.

Proposed FSM 2713.1 would establish minimum amounts of liability insurance coverage that are consistent with industry practice and potential liability. Specifically, proposed FSM 2713.1 would increase the current minimum insurance amount of $100,000 for injury or death to one person to a range of $300,000 to $1,000,000, and would increase the current minimum insurance amount of $200,000 for injury or death to more than one person to a range of $500,000 to $2,000,000. Proposed FSM 2713.1 also would provide guidance on distinguishing among different levels of risk, both in terms of the severity and likelihood of injury, in selecting the minimum amount of insurance coverage within each range. Additionally, the reference to and exhibit for the sample certificate of insurance would be replaced with a reference to certificates of insurance on industry standard form ACCORD 25-S.

The agency is proposing to reformat FSM 2713.1 and to make minor technical changes to the section. These changes include a new paragraph referencing separate, regionally established minimum amounts of liability insurance coverage for commercial users of National Forest System roads that are subject to an investment sharing agreement or reciprocal easement.

4. Regulatory Requirements

Environmental Impact

These proposed directives would revise national policy governing administration of special use permits for outfitting and guiding. Section 31b of Forest Service Handbook 1909.15 (57 FR 43180, September 18, 1992) excludes from documentation in an environmental assessment or environmental impact statement “rules, regulations, or policies to establish Servicewide administrative procedures, program processes, or instructions.” The agency has concluded that these proposed 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 proposed directives have been reviewed under USDA procedures and Executive Order (E.O.) 12866 as revised by E.O. 13422, on regulatory planning and review. The Office of Management and Budget has determined that these are not significant directives. These proposed directives would not have an annual effect of $100 million or more on the economy, nor would they adversely affect productivity, competition, jobs, the environment, public health and safety, or State or local governments. These proposed directives would not interfere with an action taken or planned by another agency, nor would they raise new legal or policy issues. Finally, these proposed directives would not alter the budgetary impact of entitlement, grant, user fee, or loan programs or the rights and obligations of beneficiaries of such programs. Accordingly, these proposed directives are not subject to Office of Management and Budget review under Executive Order 12866.

Moreover, these proposed directives have been considered in light of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). It has been determined that these proposed directives would not have a significant economic impact on a substantial number of small entities as defined by the act because the proposed directives would not impose record-keeping requirements on them; the proposed directives would not affect their competitive position in relation to large entities; and the proposed directives would 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 proposed outfitting and guiding directive should benefit small businesses that seek to use and occupy National Forest System lands by providing the potential for greater business continuity for outfitters and guides and by reducing the frequency of time-consuming and sometimes costly processing of special use applications. The benefits cannot be quantified and are not likely to substantially alter costs to small businesses. Increasing the minimum amounts of liability insurance coverage would not adversely affect small businesses because most outfitters and guides voluntarily carry, and most Forest Service regions already require, minimum coverage consistent with the proposed minimums, in accordance with industry practice.

No Takings Implications

These proposed directives have been analyzed in accordance with the principles and criteria contained in Executive Order 12630, and it has been determined that the proposed directives would not pose the risk of a taking of private property.

Civil Justice Reform

These proposed directives have been reviewed under Executive Order 12988 on civil justice reform. If the proposed directives were adopted, (1) All State and local laws and regulations that are in conflict with the proposed directives or that would impede their full implementation would be preempted; (2) no retroactive effect would be given to the proposed directives; and (3) they would 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 proposed directives under the requirements of Executive Order 13132 on federalism and has concluded that the proposed directives conform with the federalism principles set out in this executive order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the agency has determined that no further assessment of federalism implications is necessary at this time.

Moreover, these proposed 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 proposed directives have been reviewed under Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” The Agency has determined that these proposed 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), which the President signed into law on March 22, 1995, the agency has assessed the effects of these proposed directives on State, local, and Tribal governments and the private sector. These proposed directives would not compel the expenditure of $100 million or more by any State, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.

Controlling Paperwork Burdens on the Public

These proposed directives do not contain any record-keeping or reporting requirements or other information collection requirements as defined in 5 U.S.C. part 1320 that are not already required by law or not already approved for use. Any information collected from the public that would be required by these proposed 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 of 1995 (44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR part 1320 do not apply.

5. Access to Proposed 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 proposed directive text, visit the Forest Service's Web site at http://www.fs.fed.us/​recreation/​permits/​. Only those sections of the Forest Service Manual and Handbook that are the subject of this notice have been posted, including: Forest Service Handbook 2709.11—Special Uses Handbook Chapter 40, Special Uses Administration, Sections 41.53a through 41.53o, Outfitting and Guiding, and Chapter 30, Fee Determination, Section 37.21b, Flat Fee for Temporary Use Permits; and Forest Service Manual Chapter 2710, Special Use Authorizations, Section 2713.1, Liability and Insurance.

Dated: September 20, 2007.

Abigail R. Kimbell,

Chief, Forest Service.