05-7488. Maximum Term for Outfitter and Guide Special Use Permits on National Forest System Lands

AGENCY:

Forest Service, USDA.

ACTION:

Final directive.

SUMMARY:

The Forest Service is revising direction governing special use permits for outfitting and guiding conducted on National Forest System lands by increasing the maximum term for these permits from five to ten years. The revised directive would provide for greater business continuity for outfitters and guides who furnish services to visitors on National Forest System lands and would make the Forest Service's policy on the maximum permit term for outfitting and guiding permits consistent with the policy of the National Park Service and the Bureau of Land Management.

DATES:

This directive is effective April 14, 2005.

ADDRESSES:

The administrative record for this final directive is available for inspection and copying at the office of the Director, Recreation and Heritage Resources Staff, USDA Forest Service, 4th Floor Central, Sidney R. Yates Federal Building, 1400 Independence Avenue, SW., Washington, DC, from 8:30 a.m. to 4 p.m., Monday through Friday, except holidays. Those wishing to inspect the administrative record are encouraged to call Carolyn Holbrook at [phone] beforehand to facilitate access to the building.

A copy of the directive (Amendment 2709.11-2005-1) is available from the Forest Service via the World Wide Web at http://www.fs.fed.us/​im/​directives.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

1. Background and Need for the Directive

• Supporting Small Businesses.

The Forest Service regulates occupancy and use of National Forest System (NFS) lands by outfitters and guides through issuance of special use permits. Outfitters and guides provide the knowledge, skills, and equipment for recreating on NFS lands to those who might not otherwise have them, as well as information and education to the public about the National Forests. Outfitters and guides thus play an important role in meeting the Forest Service's recreational and educational objectives.

Currently, special use permits for outfitters and guides are issued for a period of up to five years. The maximum five-year term has been a concern in recent years to outfitters and guides who perceive this timeframe as a barrier to building and maintaining a sustainable small business. For example, the five-year term may hamper outfitters' and guides' ability to secure financing from lenders if business equipment cannot be fully amortized within the permit term. The five-year term also is not conducive to long-term business planning. Customer service suffers when outfitters and guides cannot invest in needed equipment or conduct long-term business planning. Revising the maximum term of their special use permit from five to ten years will provide outfitters and guides with the potential for greater business continuity for planning and investing.

• Special Uses Streamlining.

This directive will decrease administrative costs to the Forest Service and outfitters and guides by reducing the analysis and processing required by more frequent permit issuance. This practice supports the Department's special uses streamlining regulations promulgated November 30, 1998, at 36 CFR part 251, subpart B (63 FR 65949).

• Interagency Consistency.

This directive will make Forest Service policy on permit terms for outfitters and guides consistent with the policy of the Bureau of Land Management, adopted on February 6, 2004 (69 FR 5702), and the National Park Service as provided for in Title IV of the National Parks Omnibus Management Act of 1998 (16 U.S.C. 5953). Consistency in the permitting process is important, since many outfitters and guides operate on lands administered by all three agencies.

2. Public Comments on the Proposed Directive To Increase the Maximum Term for Outfitter and Guide Special Use Permits and the Forest Service's Responses

• Overview.

On August 13, 2004, the Forest Service published a proposed directive in the Federal Register (69 FR 50160) asking for public comment on a proposal to increase the maximum term for an outfitter and guide permit from five to ten years. Comments could be submitted by either mail, facsimile, or electronically. During the 60-day comment period (ending on October 12, 2004), the agency received 46 responses. Of those 46 responses, 8 responses were identical, and counted as one response; and 6 responses had two signatories, and were handled as a single response with two separate comments. Each response was identified as coming from one of the following entities:

Outfitter/Guide Permit Holder: 38 (83%).

Individual (unaffiliated or unidentifiable): 4 (9%).

Outfitter/Guide Organization: 2 (4%).

State Government: 2 (4%).

The majority of respondents were holders of Forest Service outfitter and guide special use permits or were from an outfitter and guide organization. All 40 respondents represented by this grouping supported the directive; 30 of these respondents recommended additional language.

Two States that regulate outfitting and guiding, Idaho and New Mexico, commented on the proposed directive. Idaho supported the directive, while New Mexico opposed it. New Mexico is concerned that increasing the permit term for outfitting and guiding from five to ten years will reduce competition in the industry and may stifle the ability of small businesses to engage in outfitting and guiding.

Along with New Mexico, two individuals opposed the proposed directive. One believes a longer term allows for more abuse by the permit holder. The second believes that commercial operators on NFS lands are profiteers and therefore should not be given longer periods to operate.

• Response to Comments.

Comment. Several respondents suggested allowing for permittee initiated administrative review after five years that would allow reasonable revisions to permit terms and conditions deemed necessary to enable the outfitter to make adjustments to improve service to the outfitted public.

Response. Current Forest Service policy allows for a holder of a special use authorization to request an amendment to the authorization at any time. This amendment can contain proposed changes to authorized operations that would benefit the outfitted public. The agency does not see a need to amend current policy in response to this comment. No changes were made to the proposed policy in response to this comment.

Comment. Many respondents believed that the language in section 41.53h, paragraph 2(a), of the proposed directive represents a change in current agency policy as reflected in the Outfitter and Guide Permit Administration Guidebook. They also believed that this language negatively affects many businesses that have had a downturn in travel during the economic recession and wars overseas and would like it changed to allow for more flexibility in the allocation of use.

Response. This directive does not alter agency policy with respect to allocation of use. Current policy in Forest Service Handbook (FSH) 2709.11, section 41.53h, paragraph 2(a), states: “Use may be based on the average of the highest two years of actual use authorized, which was actually used during the previous five years.” This directive merely changes the period of use from “the previous five years” to “the previous permit term” to accommodate the increase to a ten-year term and five-year permits that exist, but will be phased out over time. The referenced guidebook is not agency direction as defined at 36 CFR 200.4, but rather a compendium of agency direction, with examples for administration of outfitter and guide permits. To the extent there is any inconsistency between the directive and the Guidebook, the directive, which was adopted through public notice and comment, takes precedence over the Guidebook, which was not.

The request to amend current direction on allocation of use for outfitting and guiding is outside the scope of this directive and would require additional public notice and comment. The Forest Service has discussed this issue with the outfitter and guide industry and plans to address this concern at a future date. No changes were made to the proposed directive in response to this comment.

Comment. Two respondents were concerned that extending the permit term would prevent healthy competition for allocation of use for outfitted and guided hunting on NFS lands in New Mexico and probably elsewhere. These respondents believed that a longer permit term would severely restrict the ability of outfitters and guides licensed by the State to conduct their activities on NFS lands. One respondent requested that the Forest Service remove the implication in the agency's directives that outfitting and guiding permits may be held for long periods and transferred.

Response. The Forest Service disagrees with the assertion that competition will be severely restricted by this directive. In 2004, almost 4,700 Forest Service outfitter and guide special use permits were in effect, authorizing a broad range of recreational and educational opportunities. New applications for outfitting and guiding may be granted, provided the proposed services further the mission of the Forest Service, there is public demand for them, and there is capacity in the area requested. Current policy provides that outfitter and guide permits may be issued when (1) an increased allocation, capacity, or public need is identified through the forest planning process; (2) an existing permit is revoked; (3) a reduction of service days for an existing holder or holders makes additional service days available; (4) competitive interest in an area, unit, or activity arises where no previously authorized use exists and where the proposed use is compatible with objectives in land management plans; (5) an application has been submitted to provide outfitter and guide services for an area or activity that has not previously been authorized and for which there is no competitive interest; or (6) an existing permit terminates. In the first four scenarios, the agency solicits applicants by issuing a prospectus and contacting all parties who have expressed an interest. In the fifth scenario, the agency documents the determination of no competitive interest and issues a permit to qualified applicants (FSH 2709.11, sec. 41.53f, para. 2). This directive does not change this policy. In addition, outfitter and guide businesses change ownership regularly, thereby providing outfitting and guiding business opportunities to more people. There is no implication in current policy that outfitting and guiding permits may be held for long periods and transferred. Under current policy, the maximum term is five years, and permits are not transferable (FSH 2709.11, sec. 41.53c and 41.53f). No changes were made to the proposed policy in response to this comment.

Comment. One respondent proposed that any allocation of use for outfitting and guiding in any State be made only after consultation with and specific recommendation from the State agency that licenses outfitters and guides. These respondents believed that to do otherwise would run counter to the joint authority of States and the Forest Service to regulate outfitting and guiding.

Response. The National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA) require the Forest Service to seek public input, including input from State and local governments, when making land use decisions, especially when the Forest Service is developing a land management plan or wilderness management plan. Within these plans, the agency may establish criteria and capacities for the issuance of outfitter and guide permits. To determine these criteria and capacities, the agency must confer with State agencies, such as departments of game and fish, to understand the effects these decisions may have on the program of a particular State.

The agency disagrees that consultation with and a recommendation from the State agency that licenses outfitters and guides should be required before allocation of use for outfitting and guiding on NFS lands within that State. There is no requirement for this type of consultation and recommendation under Federal law. The States and the Forest Service have concurrent jurisdiction to regulate outfitting and guiding on NFS lands. The regulatory authority of the Forest Service is separate and distinct from the authority of the States. No changes were made to the proposed policy in response to this comment.

Comment. Respondents were concerned that there would be less monitoring under a longer-term permit, and noted that monitoring occurs infrequently.

Response. The agency disagrees with this comment. Current policy requires annual performance reviews, and this directive does not change that requirement. No changes were made to the proposed policy in response to this comment.

Comment. One respondent believed that the maximum term for outfitter and guide permits should be five years. This respondent stated that outfitters and guides would take lifelong permits if they could get them.

Response. The agency disagrees with this comment based on the reasons provided in the section, “Background and Need for this Directive.” No changes were made to the proposed policy in response to this comment.

3. Regulatory Requirements

• Environmental Impact.

This directive will 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 Service-wide administrative procedures, program processes, or instructions.” The agency's conclusion is that this directive falls 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.

This directive has been reviewed under USDA procedures and Executive Order 12866 on regulatory planning and review. It has been determined that this is not a significant directive. This directive will not have an annual effect of $100 million or more on the economy, nor will it adversely affect productivity, competition, jobs, the environment, public health and safety, or State or local governments. This directive will not interfere with an action taken or planned by another agency, nor will it raise new legal or policy issues. Finally, this directive will not alter the budgetary impact of entitlement, grant, user fee, or loan programs or the rights and obligations of beneficiaries of such programs. Accordingly, this directive is not subject to Office of Management and Budget review under Executive Order 12866.

Moreover, this directive has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). It has been determined that this directive will not have a significant economic impact on a substantial number of small entities as defined by the act because the directive will not impose record-keeping requirements on them; it will not affect their competitive position in relation to large entities; and it 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 this directive should 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 time-consuming and sometimes costly processing of special use applications. The benefits cannot be quantified and are not likely substantially to alter costs to small businesses.

• No Takings Implications.

This directive has been analyzed in accordance with the principles and criteria contained in Executive Order 12630, and it has been determined that the directive will not pose the risk of a taking of private property.

• Civil Justice Reform.

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

• Federalism and Consultation and Coordination with Indian Tribal Governments.

The agency has considered this directive under the requirements of Executive Order 13132 on federalism, and has made an assessment that the directive conforms with the federalism principles set out in this executive order; will not impose any compliance costs on the States; and will not have substantial direct effects on the States, the relationship between the Federal Government and the States, or on 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, this directive does 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.

This directive has been reviewed under Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” It has been determined that this directive does 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 this directive on State, local, and Tribal governments and the private sector. This directive 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.

This directive does not contain any recordkeeping 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 as a result of this action has been approved by the Office of Management and Budget under 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.

Dated: March 31, 2005.

Dale N. Bosworth,

Chief.

4. Directive Changes for Outfitter and Guides

Note:

The Forest Service organizes its directive system by alphanumeric codes and subject headings. Only those sections of the Forest Service Handbook that are the subject of this notice are set out here. The intended audience for this direction is Forest Service employees charged with issuing and administrating outfitter and guide special use permits.

Forest Service Handbook

2709.11-Special Uses Handbook

Chapter 40-Special Uses Administration

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41.53 Outfitters and Guides

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41.53c Definitions

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Priority Use. Authorization of use for a period not to exceed ten years. The amount of use is based on the holder's past use and performance and on land management plan allocations. Except as provided for in Title 36, Code of Federal Regulations, part 251, subpart E, authorizations providing for priority use are subject to renewal (sec. 41.53f).

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41.53h—Assignment and Management of Priority Use

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2. * * *

a. Use may be based on the average of the highest two years of actual use during the previous permit term.

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41.53j—Permit Terms and Conditions

1. For new applicants, authorize use for up to one year. For holders assigned priority use, use may be authorized for up to ten years.

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