[Senate Report 106-491]
[From the U.S. Government Publishing Office]
Calendar No. 940
106th Congress Report
SENATE
2d Session 106-491
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OUTFITTER POLICY ACT OF 1999
_______
October 5 (legislative day, September 22), 2000.--Ordered to be printed
_______
Mr. Murkowski, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 1969]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 1969) to provide for improved management
of, and increased accountability for, outfitted activities by
which the public gains access to and occupancy and use of
Federal land, and for other purposes, having considered the
same, reports favorably thereon with an amendment and
recommends that the bill, as amended, do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE
This Act may be cited as the ``Outfitter Policy Act of 1999''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the experience, skills, trained staff, and investment in
equipment that are provided by authorized outfitters are
necessary for members of the public that need or desire
commercial outfitted activities to facilitate their use and
enjoyment of recreational or educational opportunities on
Federal land;
(2) such activities constitute an important contribution
toward meeting the recreational and educational objectives of
resource management plans approved and administered by agencies
of the Department of Agriculture and the Department of the
Interior.
(3) an effective relationship between those agencies and
authorized outfitters requires implementation of agency
policies and programs that facilitate--
(A) quality outfitting services to the public, and
(ii) the authorized outfitter having a reasonable
opportunity to engage in a successful business venture;
(B) a return to the United States through appropriate
fees;
(C) renewal of outfitter permits based on a
performance evaluation system that rewards outfitters
that meet required performance standards and withdraws
authorizations for outfitters that fail to meet those
standards; and
(D) transfer of an outfitter permit to the qualified
purchaser of the operation of an authorized outfitter,
an heir or assign, or another qualified person or
entity; and
(4) the provision of opportunities for outfitted visitors to
Federal land to engage in fishing and hunting is best served by
continued recognition that the States retain primary authority
over the taking of fish and wildlife on Federal land.
SEC. 3. PURPOSES.
The purposes of this Act are--
(1) to establish terms and conditions for occupancy and use
of Federal land by an authorized outfitter; and
(2) to establish a stable regulatory climate that encourages
a qualified person or entity to provide, and to continue to
invest in the ability to conduct outfitted activities on
Federal land.
to facilitate opportunities for recreational use of public
lands by that segment of the public that needs or wants to use
the services of outfitters and guides.
SEC. 4. DEFINITIONS.
In this Act:
(1) Actual use.--The term ``actual use'' means the portion of
a principal allocation of outfitter use that an authorized
outfitter uses in conducting commercial outfitted activities
during a period, for a type of use, in an area or based on some
other measurement.
(2) Allocation of use.--
(A) In general.--The term ``allocation of use'' means
a measurement of use that--
(i) is granted by the Secretary to an
authorized outfitter for the purpose of
facilitating the occupancy and use of Federal
land by an outfitted visitor;
(ii) takes the form of--
(I) an amount or type of commercial
outfitted activity resulting from an
appointment of the total recreation
capacity of a resource area; or
(II) in the case of a resource area
for which recreation capacity has not
been apportioned, a type of commercial
outfitted activity conducted in a
manner that is not inconsistent with or
incompatible with an approved resource
management plan; and
(iii) is calibrated in terms of amount of
use, type of use, or location of a commercial
outfitted activity, including user days or
portions of user days, seasons or other periods
of operation, launch dates, assigned camps,
hunt, gun or fish day or other formulations of
the type or amount of authorized activity.
(B) Inclusion.--The term ``allocation of use''
includes the designation of a geographic area, zone, or
district in which a limited number of authorized
outfitters are authorized to operate.
(3) Authorized outfitter.--The term ``authorized outfitter''
means a person or entity that conducts a commercial outfitted
activity on Federal land under an outfitter authorization.
(4) Commercial outfitted activity.--The term ``commercial
outfitted activity'' means an authorized outfitted activity
conducted on federal lands--
(A) that is available to the public;
(B) that is conducted under the direction of
compensated individuals; and
(C) for which an outfitted visitor is required to pay
more than a strict sharing of actual expenses
(including payment to an authorized outfitter that is a
nonprofit organization).
(5) Federal agency.--The term ``Federal agency'' means--
(A) the Forest Service;
(B) the Bureau of Land Management;
(C) the United States Fish and Wildlife Service; and
(D) the Bureau of Reclamation.
(6) Federal land.--
(A) In general.--The term ``Federal land'' means all
land and interests in land administered by a Federal
agency.
(B) Exclusion.--The term ``Federal land'' does not
include--
(i) land held in trust by the United States
for the benefit of an Indian tribe or
individual; or
(ii) land held by an Indian tribe or
individual subject to a restriction by the
United States against alienation.
(7) Temporary outfitter authorization.--The term ``temporary
outfitter authorization'' means an outfitter authorization
under section 6(f).
(8) Livery.--The term ``livery'' means the dropping off or
picking up of visitors, supplies, or equipment on Federal land.
(9) Outfitted activity.--The term ``outfitted activity''
means an activity--
(A) such as outfitting, guiding, supervision,
education, interpretation, skills training, assistance,
or livery operation conducted for a member of the
public in an outdoor environment; and
(B) that uses the recreational, natural, historical,
or cultural resources of Federal land.
(10) Outfitted visitor.--The term ``outfitted visitor'' means
a member of the public that engages an authorized outfitter to
facilitate occupancy and use of Federal land.
(11) Outfitter.--The term ``outfitter'' means a person or
entity that conducts a commercial outfitted activity, including
a person who, by local custom or tradition, is known as a
``guide''.
(12) Outfitter authorization.--The term ``outfitter
authorization'' means--
(A) an outfitter permit;
(B) a temporary outfitter authorization; or
(C) an authorization to use and occupy Federal land
that references this Act as its authority.
(13) Outfitter permit.--The term ``outfitter permit'' means
an outfitter permit under section 6.
(14) Principal allocation of outfitter use.--The term
``principal allocation of outfitter use'' means a grant by the
Secretary in an outfitter permit for an allocation of use to an
authorized outfitter in accordance with section 9.
(15) Resource area.--The term ``resource area'' means a
management unit that is described by or contained within the
boundaries of--
(A) a national forest;
(B) an area of public land;
(C) a wildlife refuge;
(D) a congressionally designated area;
(E) a hunting zone or district; or
(F) any other Federal planning unit (including an
area in which outfitted activities are regulated by
more than 1 Federal agency).
(16) Secretary.--The term ``Secretary'' means--
(A) with respect to Federal land administered by the
Forest Service, the Secretary of Agriculture, acting
through the Chief of the Forest Service or a designee;
(B) with respect to Federal land administered by the
Bureau of Land Management, the Secretary of the
Interior, acting through the Director of the Bureau of
Land Management or a designee;
(C) with respect to Federal land administered by the
United States Fish and Wildlife Service, the Secretary
of the Interior, acting through the Director of the
United States Fish and Wildlife Service or a designee;
and
(D) with respect to Federal land administered by the
Bureau of Reclamation, the Secretary of the Interior,
acting through the Commissioner of Reclamation or a
designee.
(17) Temporary allocation of use.--The term ``temporary
allocation of use'' means an allocation of use to an authorized
outfitter in accordance with section 9.
SEC. 5. NONOUTFITTER USE AND ENJOYMENT.
Nothing in this Act is intended to diminish any right or privilege
of occupancy and use of federal land by the public including the non-
outfitted visitor.
SEC. 6. OUTFITTER AUTHORIZATIONS.
(a) In General.--
(1) Prohibition.--No person or entity, except an authorized
outfitter, shall conduct a commercial outfitted activity on
Federal land.
(2) Conduct of outfitted activities.--An authorized outfitter
shall not conduct an outfitted activity on Federal land except
in accordance with an outfitter authorization.
(3) Special rule for alaska.--With respect to a commercial
outfitted activity conducted in the State of Alaska, the
Secretary shall not establish or impose a limitation on special
access by an authorized outfitter that is inconsistent with the
access ensured under subsections (a) and (b) of section 1110 of
the Alaska National Interest Lands Conservation Act (16 U.S.C.
3170).
(b) Terms and Conditions.--An outfitter authorization shall
specify--
(1) the rights and privileges of the authorized outfitter and
the Secretary; and
(2) other terms and conditions of the authorization.
(c) Criteria for Grant of an Outfitter Permit.--The Secretary shall
establish criteria for grant of an outfitter permit that--
(1) recognize skill, experience, knowledge of the resource
area and financial capability of the persons or entity under
consideration;
(2) consider any or all of the following: safety, quality
recreational experience, educational opportunities and
conservation of resources for the outfitted visitor;
(3) offer a reasonable opportunity for an authorized
outfitter to engage in a successful business venture;
(4) create a stable regulatory climate that encourages an
authorized outfitter to provide and invest in the ability to
provide quality services to the outfitted visitor;
(5) assure revenue paid to the United States provided this
consideration is subordinate to the criteria of this
subsection.
(d) Grant.--
(1) In general.--The Secretary may grant an outfitter permit
under this Act if--
(A) the commercial outfitted activity to be
authorized is not inconsistent with or incompatible
with an approved resource management plan applicable to
the resource area in which the commercial outfitted
activity is to be conducted; and
(B) the authorized outfitter meets the criteria
established under subection (c)(1).
(2) Use of competitive process.--
(A) In general.--Except as otherwise provided by this
Act, the Secretary shall use a competitive process to
select an authorized outfitter.
(B) Exception for certain activities.--The Secretary
may grant an outfitter permit to an applicant without
conducting a competitive selection process if the
Secretary determines that--
(i) the applicant meets criteria established
by the Secretary under subsection (c); and
(ii) there is no competitive interest in the
commercial outfitted activity to be conducted.
(C) Exception for renewals and transfers.--The
Secretary shall grant an outfitter to an applicant
without conducting a competitive selection process if
the authorization is a renewal or transfer of an
existing outfitter permit under section 11 or 12.
(e) Provisions of Outfitter Permits.--
(1) In general.--An outfitter permit shall provide for--
(A) the health and welfare of the public;
(B) conservation of resource values;
(C) a return to the United States through an
authorization fee in accordance with section 7;
(D) a term of 10 years except as provided in (3)
below;
(E) the obligation of an authorized outfitter to
defend and indemnify the United States in accordance
with section 8;
(F) a principal allocation of outfitter use, and, if
appropriate, a temporary allocation of use, in
accordance with section 9;
(G) a plan to conduct performance evaluations in
accordance with section 10;
(H) renewal or revocation of an outfitter permit in
accordance with section 11;
(I) transfer of an outfitter permit in accordance
with section 12;
(J) a means of modifying the terms and conditions of
an outfitter permit to reflect material changes in
facts and conditions;
(K) notice of a right of appeal and judicial review
in accordance with section 14; and
(L) such other terms and conditions as the Secretary
may require.
(2) Extensions.--The Secretary may award not more than 3
temporary 1-year extensions of an outfitter permit, unless the
Secretary determines that extraordinary circumstances warrant
additional extensions.
(3) Tenure.--The Secretary shall generally issue an outfitter
authorization for 10 years, with an initial probation period of
two years for a new authorized outfitter, except that he may,
in extraordinary circumstances, award an outfitter permit with
a term of less than 10 years when--
(A) foreseeable amendments in resource management
plans will create conditions that would materially
impact and necessitate changes in permit terms and
conditions in less than 10 years; or
(B) an authorized outfitter and the Secretary agree
to a permit term of less than 10 years.
(f) Temporary Outfitter Authorizations.--
(1) In general.--The Secretary may issue a temporary
outfitter authorization for the purpose of conducting a
commercial outfitted activity on a limited basis.
(2) Term.--A temporary outfitter authorization shall have a
term not to exceed 2 years.
(3) Renewal.--A temporary outfitter authorization may be
reissued or renewed at the discretion of the Secretary.
SEC. 7. AUTHORIZATION FEES.
(a) Amount of Fee.--
(1) In general.--An outfitter permit shall provide for
payment to the United States of an authorization fee, as
determined by the Secretary.
(2) Fee determination.--(a) In determining the amount of an
authorization fee, the Secretary shall take into
consideration--
(A) the obligations of the outfitter under the
outfitter permit;
(B) the provision of a reasonable opportunity to
engage in a successful business; and
(C) the fair market value of the use and occupancy
granted by the outfitter authorization.
(b) Consistency.--The federal agencies shall use consistent
methodologies to determine the outfitter authorization fee.
(c) Payment of Outfitter Authorization Fee.--
(1) In general.--The amount of the fee paid to the United
States for the term of an outfitter permit shall be specified
in that outfitter permit.
(2) Requirements.--The amount of the authorization fee--
(A)(i) shall be expressed as--
(I) a simple charge per day of actual use; or
(II) an annual or seasonable flat fee;
(ii) if calculated as a percentage of revenue, shall
be determined based on adjusted gross receipts; or
(iii) with respect to a commercial outfitted activity
conducted in the State of Alaska, shall be based on a
simple charge per user day;
(B) shall be subordinate to the objectives of--
(i) conserving resources;
(ii) protecting the health and welfare of the
public; and
(iii) providing reliable, consistent
performance in conducting outfitted activities;
and
(C) shall be required to be paid by an authorized
outfitter to the United States on a reasonable schedule
during the operating season; and
(D) shall set a minimum fee.
(3) Adjusted gross receipts.--For the purpose of paragraph
(2)(A)(ii), the Secretary shall--
(A) take into consideration revenue from the gross
receipts of the authorized outfitter from commercial
outfitted activities conducted on Federal land; and
(B) exclude from consideration any revenue that is
derived from--
(i) fees paid by the authorized outfitter to
any unit of Federal, State, or local government
for--
(I) hunting or fishing licenses;
(II) entrance or recreation fees; or
(III) other purposes (other than
commercial outfitted activities
conducted on Federal land);
(ii) goods and services sold to outfitted
visitors that are not within the scope of
authorized outfitter activities conducted on
Federal land; or
(iii) operations on non-Federal land.
(4) Substantially similar services in a specific geographic
area.--
(A) In general.--Except as provided in subparagraph
(B), if more than 1 outfitter permit is granted to
conduct the same or similar commercial outfitted
activities in the same resource area, the Secretary
shall establish an identical fee for those outfitter
permits.
(B) Exception.--The terms and conditions of an
existing outfitter permit shall not be subject to
modification or open to renegotiation by the Secretary
because of the grant of a new outfitter permit in the
same resource area for the same or similar commercial
outfitted activities.
(5) Actual use.--
(A) In general.--For the purpose of calculating an
authorization fee for actual use under paragraph
(2)(A)(i)(I),
(i) multiple outfitted activities with
separate charges shall count as one actual use
day when conducted in one day; and
(ii) an activity conducted across agency
jurisdictions over the course of one day shall
not exceed one actual use day.
(B) Reconsideration of fee.--The authorization fee
may be reconsidered during the term of the outfitter
permit in accordance with paragraph (6) or section
9(c)(3).
(6) Adjustment of fees.--The amount of an authorization fee--
(A) shall be determined as of the grant date of the
outfitter permit; and
(B) may be modified to reflect--
(i) changes relating to the terms and
conditions of the outfitter permit, including 1
or more outfitter permits described in
paragraph (5);
(ii) extraordinary unanticipated changes
affecting operating conditions, such as natural
disasters, economic conditions, or other
material adverse changes from the terms and
conditions specified in the outfitter permit;
(iii) changes affecting operating or economic
conditions determined by other governing
entities, such as the availability of State
fish or game licenses;
(iv) the imposition of new or higher fees
assessed under other law; or
(v) authorized adjustments made to an
allocation of outfitter use.
(d) Establishment of Amount Applicable to a Temporary Outfitter
Authorization.--The Secretary shall determine the amount of an
authorization fee under a temporary outfitter authorization.
(e) Other Fees and Costs.--Fees for processing applications for
outfitter permits or monitoring compliance with permit terms and
conditions shall not seek to recover costs of agency activities that
benefit broadly the general public or are not directly related to or
required for processing applications or monitoring of an authorization.
SEC. 8. LIABILITY AND INDEMNIFICATION.
(a) Liability.--An authorized outfitter shall be liable to the United
States for costs and expenses associated with damages to property of
the United States caused by the authorized outfitter's--
(1) negligence,
(2) gross negligence, or
(3) willful and wanton disregard for persons or property,
arising directly out of the authorized outfitter's conduct of a
commercial outfitted activity under an outfitter authorization.
(b) Indemnification.--An authorized outfitter shall defend and
indemnify the United States for costs or expenses associated with
injury, death, or damage to any person or property caused by the
authorized outfitter's--
(1) negligence,
(2) gross negligence, or
(3) willful and wanton disregard for persons or property.
arising proximately from the authorized outfitter's conduct of a
commercial outfitted activity under an outfitter authorization.
(c) No Liability.--An authorized outfitter shall have no
responsibility to pay to or defend or indemnify the United States, or
its agents, employees, or contractors, for costs or expenses associated
with injury, death, or damage to any person or property to the extent
the injury, death, or damage was caused by the acts, omissions,
negligence, gross negligence, or willful and wanton misconduct of the
United States, its agents, employees, or contractors; or third parties.
(d) Finding of Liability.--Before presenting any claim for costs
and expenses associated with damage to any property allegedly caused by
the authorized outfitter, the Secretary, after providing due process,
shall make a finding of negligence, gross negligence, or willful and
wanton disregard for persons or property on the part of the authorized
outfitter and present the finding to the authorized outfitter.
(e) Agreements.--An authorized outfitter may enter into agreements
with outfitted visitors, including for (i) assumption or allocation or
risk, and (ii) release or waiver related to inherently dangerous
activities or conditions, if the agreement also runs in favor of the
United States and its agents, employees, or contractors. Copies of any
such agreements shall be provided to the Federal agency before being
presented to outfitted visitors by an authorized outfitter.
SEC. 9. ALLOCATION OF USE.
(a) In General.--
(1) an outfitter permit shall include within its terms and
conditions a principal allocation of outfitter use; and
(2) a temporary outfitter permit may include a principal
allocation of outfitter use.
(b) Renewals, Transfers and Extensions.--Except as provided in (d),
upon renewal, transfer or extension of an outfitter permit, the same
principal allocation of use shall be included within the terms and
conditions of the permit.
(c) Waiver.--
(1) In general.--At the request of an authorized outfitter,
the Secretary may waive any obligation of the authorized
outfitter to use all or part of the amount of allocation of use
provided under the outfitter permit, subject to section 7(b),
if the request is made in sufficient time to allow the
Secretary to temporarily reallocate the unused portion of the
allocation of use in that season or calendar year.
(2) Reclaiming of allocation of use.--Unless the Secretary
has reallocated the unused portion of an allocation of use in
accordance with paragraph (1), the authorized outfitter may
reclaim any part of the unused portion in that season or
calendar year.
(3) No fee obligation.--Subject to section 7(b), an outfitter
permit fee may not be charged for any amount of allocation of
use subject to a wavier under paragraph (1).
(d) Ajustment to Allocation of Use.--The Secretary--
(1) may adjust an allocation of use to reflect--
(A) material change arising from approval of an
amendment in the resource management plan for the area
of operation; or
(B) requirements arising under other law; and
(2) shall provide an authorized outfitter with documentation
supporting the basis for any adjustment in the principal
allocation of outfitter use, including new terms and conditions
that result from the adjustment.
(e) Temporary Allocation of Use.--
(1) In general.--A temporary allocation of use may be
provided to an authorized outfitter at the discretion of the
Secretary for a period up to 2 years.
(2) Transfers and extensions.--A temporary allocation of use
may be, transferred, or extended at the discretion of the
Secretary.
SEC. 10. EVALUATION OF PERFORMANCE UNDER OUTFITTER PERMITS.
(a) Evaluation Process.--
(1) In general.--The Secretary shall develop a process for
annual evaluation of the performance of an authorized outfitter
in conducting a commercial outfitted activity under an
outfitter permit.
(2) Evaluation criteria.--Criteria used by the Secretary to
evaluate the performance of an authorized outfitter shall--
(A) be objective, measurable, and attainable; and
(B) include as deemed appropriate by the Secretary--
(i) standards generally applicable to all
commercial outfitted activities;
(ii) standards specific to a resource area or
an individual outfitter operation; and
(iii) such other terms and conditions of the
outfitter permit.
(3) Requirements.--In evaluating the level of performance of
an authorized outfitter, the Secretary shall--
(A) appropriately account for factors beyond the
control of the authorized outfitter, including
conditions described in section 7(b)(6)(B) and 9(c);
and
(B) ensure that the effect of any performance
deficiency reflected by the performance rating is
proportionate to the severity of the deficiency,
including any harm that may have resulted from the
deficiency.
(b) Levels of Performance.--The Secretary shall define 3 levels of
performance, as follows:
(1) Good, indicating a level of performance that fulfills the
terms and conditions of the outfitter permit.
(2) Marginal, indicating a level of performance that, if not
corrected, will result in an unsatisfactory level of
performance.
(3) Unsatisfactory, indicating a level of performance that
fails to fulfill the terms and conditions of the outfitter
permit.
(c) Performance Evaluation.--
(1) Evaluation system.--The Secretary shall establish a
performance evaluation system that assures the public of
continued availability of dependable commercial outfitted
activities and suspends or revokes an authorization for an
authorized outfitter that fails to meet the required standards.
(2) Procedure.--An authorized outfitter shall be entitled--
(A) to be present, or represented, at inspections of
operations or facilities, which inspections shall be
limited to the operations and facilities of the
authorized outfitter located on Federal land;
(B) to receive written notice of any conduct or
condition that, if not corrected, might lead to a
performance evaluation of marginal or unsatisfactory,
which shall include an explanation of needed
corrections and provide a reasonable period in which
the corrections may be made without penalty; and
(C) to receive written notice of the results of the
performance evaluation not later than 60 days after the
conclusion of the authorized outfitter's operating
season, including the level of performance and the
status of corrections that may have been required.
(d) Marginal Performance.--If an authorized outfitter's annual
performance is determined to be marginal, and the authorized outfitter
fails to complete the corrections within the time specified under
subsection (c)(2)(B), the level of performance shall be determined to
be unsatisfactory for the year.
(e) Determination of Eligibility for Renewal.--
(1) In general.--The results of all annual performance
evaluations of an authorized outfitter shall be reviewed by the
Secretary in the year preceding the year in which the outfitter
permit expires to determine whether the authorized outfitter's
overall performance during the term has met the requirements
for renewal under section 11.
(2) Failure to evaluate.--If, in any year of the term of an
outfitter permit, the Secretary fails to evaluate the
performance of the authorized outfitter by the date that is 60
days after the conclusion of the authorized outfitter's
operating season, the performance of the authorized outfitter
in that year shall be considered to have been good.
(3) Notice.--Not later than 60 days after the end of the year
preceding the year in which an outfitter permit expires, the
Secretary shall provide the authorized outfitter with the
cumulative results of performance evaluations conducted under
this subsection during the term of the outfitter permit.
(4) Unsatisfactory performance in final year.--If an
authorized outfitter receives an unsatisfactory performance
rating under subsection (d) in the final year of the term of an
outfitter permit, the review and determination of eligibility
of renewal of the outfitter permit under paragraph (1) shall be
revised to reflect that result.
SEC. 11. RENEWAL REVOCATION OR SUSPENSION OR OUTFITTER PERMITS.
(a) Renewal at Expiration of Term.--
(1) In general.--On expiration of the term of an outfitter
authorization, the Secretary shall renew the authorization in
accordance with paragraph (2).
(2) Determination based on annual performance rating.--The
Secretary shall renew an outfitter authorization under
paragraph (1) at the request of the authorized outfitter and
subject to the requirements of this Act if the Secretary
determines that the authorized outfitter has received not more
than 1 unsatisfactory annual performance rating under section
10 during the term of the outfitter permit.
(b) Revocation.--An outfitter permit may be revoked only if the
Secretary determines that--
(1) the authorized outfitter has failed to correct a
condition for which the authorized outfitter received notice
under section 10(c)(2)(B) and the condition is considered by
the Secretary to be significant with respect to permit terms
and conditions;
(2) the authorized outfitter is in arrears in the payment of
fees under section 7; and
(A) has not entered into a payment plan with the
agency; or
(B) has not sought relief subject to section 14.
(3) the authorized outfitter's conduct demonstrates willful
disregard for--
(A) the health and welfare of outfitted visitors; or
(B) the conservation of resources on which the
commercial outfitted activities are conducted.
(c) Suspension.--
(1) In general.--All or part of the outfitter permit may be
suspended, subject to findings made under subsection (b).
(2) Administrative review.--Subject to Section 17 the
Secretary shall provide for an expedited review of suspension
cases.
SEC. 12. TRANSFERABILITY OF OUTFITTER PERMITS.
(a) In general.--An outfitter permit shall not be transferred
(including assigned or otherwise conveyed or pledged) by the authorized
outfitter without prior written notification to, and approval by, the
Secretary.
(b) Approval.--
(1) In general.--The Secretary shall approve a transfer of an
outfitter permit unless the Secretary finds that the transferee
is not qualified or able to satisfy the terms and conditions of
the outfitter permit.
(2) Qualified transferees.--Subject to section 6(d)(1), the
Secretary shall approve a transfer of an outfitter permit--
(A) to a purchaser of the operation of the authorized
outfitter;
(B) at the request of the authorized outfitter, to an
assignee, partner, or stockholder or other owner of an
interest in the operation of the authorized outfitter;
or
(C) on the death of the authorized outfitter, to an
heir or assign.
(c) Transfer terms.--The terms and conditions of any outfitter
permit shall not be subject to modification or open to renegotiation by
the Secretary because of a transfer described in subsections (1) and
(b) unless--
(1) it is at the request of the transferee; or
(2) the terms and conditions of the outfitter permit proposed
to be transferred have become inconsistent or incompatible with
an approved resource management plan for the resource area.
(d) Consideration Period.--
(1) Threshold for automatic approval.--Subject to paragraph
(2), if the Secretary fails to approve or disapprove the
transfer of an outfitter permit within 90 days after receiving
a complete application containing the information required with
respect to the transfer, the transfer shall be deemed approved
unless the transferee requests a modification of terms and
conditions of the outfitter authorization and such
modifications require environmental analysis under the National
Environmental Policy Act.
(2) Extension.--The Secretary and the authorized outfitter
applying for transfer of an outfitter permit may agree to
extend the period for consideration of the application.
(e) Continuance of Outfitter Permit.--If the transfer of an
outfitter permit is not approved by the Secretary or if the transfer is
not subsequently made, the outfitter permit shall remain in effect.
SEC. 13. RECORDKEEPING REQUIREMENTS.
(a) In General.--An authorized outfitter shall keep such reasonable
records as the Secretary may require to enable the Secretary to
determine that all the terms of the outfitter authorization are being
met.
(b) Obligations of the Secretary and Authorized Outfitter.--The
recordkeeping requirements established by the Secretary shall
incorporate simplified procedures that do not impose an undue burden on
an authorized outfitter.
(c) Access to Records.--The Secretary, or an authorized
representative of the Secretary, shall for purposes of audit and
performance evaluation have access to and the right to examine for five
years following the effective date of an outfitter authorization any
books, papers, documents and records of the authorized outfitter
relating to each outfitter authorization held by the authorized
outfitter during the business year.
SEC. 14. APPEALS AND JUDICIAL REVIEW.
(a) Appeals Procedure.--The Secretary shall be regulation--
(1) grant an authorized outfitter full access to
administrative remedies, and
(2) establish an expedited procedure for consideration of
appeals of Federal agency decisions to deny, suspend, fail to
renew, or revoke an outfitter permit.
(b) Judicial Review.--An authorized outfitter that is adversely
affected by a final decision of the Secretary under this Act may
commence a civil action in United States district court.
SEC. 15. LACK OF EFFECT ON EXISTING RIGHTS OF THE UNITED STATES.
Nothing in this Act limits or restricts any right, title, or
interest of the United States in or to any land or resource.
SEC. 16. REGULATIONS.
Not later than 2 years after the date of enactment of this Act, the
Secretary shall promulgate such regulations as are appropriate to carry
out this Act.
SEC. 17. RELATIONSHIP TO OTHER LAW.
(a) National Park Omnibus Management Act of 1998.--Nothing in this
Act supersedes or otherwise affects any provision of title IV of the
National Park Omnibus Management Act of 1998 (16 U.S.C. 5951 et seq.)
(b) State Outfitter Licensing Law.--This Act does not preempt any
outfitter or guide licensing law (including any regulation) of any
State or territory.
SEC. 18. TRANSITION PROVISIONS.
(a) Outfitters With Satisfactory Ratings.--An outfitter that holds
a permit, contract, or other authorization to conduct commercial
outfitted activities (or an extension of such a permit, contract, or
other authorization) in effect on the date of promulgation of
implementing regulations under section 16 shall be entitled, on
expiration of the authorization, to the issuance of an outfitter permit
under this Act if the outfitter's aggregate performance under the
permit, contract, or other authorization was good or was the equivalent
of good, satisfactory, or acceptable under a rating system in use
before the date of enactment of this Act.
(b) Outfitters With No Ratings.--For the purpose of subsection (a),
if no recent performance evaluations exist to determine the outfitter's
aggregate performance its aggregate performance shall be deemed to be
good.
(c) Effect of Issuance of Outfitter Permit.--The issuance of an
outfitter permit under subsection (a) shall not adversely affect any
right or obligation that existed under the permit, contract, or other
authorization (or an extension of the permit, contract, or other
authorization) on the date of enactment of this Act.
purpose of the measure
The purpose of S. 1969 is to establish a uniform policy
regarding permits issued to guides and outfitters operating on
lands managed by the Forest Service, the Bureau of Land
Management, the U.S. Fish and Wildlife Service, and public land
agencies other than the National Park Service in a manner that
will facilitate the provision of quality services to the public
and create a stable business environment that will enable
guides and outfitters to provide such services.
background and need
Thousands of guides and outfitters provide recreational
services assuring the public safe and enjoyable use of millions
of acres of public lands. These outfitters operate under
special use permits and other agreements granted and overseen
by Federal agencies. Currently there is a lack of consistency
in the administration of guide and outfitter special use
permits on lands administered by the U.S. Forest Service, BLM,
the U.S. Fish and Wildlife Service, and public land agencies
other than the National Park Service. This lack of consistency
has adversely impacted the provision of quality services to the
public. A primary reason for this inconsistency has been the
lack of legislative guidance on this subject which stands in
marked contrast to the specific direction Congress has provided
the National Park Service for the administration of the same
kind of permit and contracts on park lands.
Legislative guidance is needed for the issuance and
administration of outfitter permits. Specific issues include
the objectives to be served by the granting of permits, the
standards for determining to whom permits will be awarded, the
specific terms and conditions of permits, evaluation of
performance, along with programmatic issues associated with
guide and outfitter permits. Notwithstanding the existence of
policies and handbooks used by the agencies to establish stable
consistent permit administration, there is a wide disparity in
the application of these guidelines. Due to the nature of
outfitting the guiding, it is not uncommon for a single
outfitter to deal with two agencies or two district offices
within one agency and have to comply with different rules,
forms and policies. The bill systematically addresses these
issues and provides clear and consistent, but flexible,
guidance to the land managers.
S. 1969 does not allocate use or ensure that guides and
outfitters are entitled to any particular share of approved use
on public land units. Allocation determinations will continue
to be made by the agencies pursuant to existing authorities.
Similarly the bill does not impact or diminish the right of the
general public to use their public lands.
The primary objective of this legislation is to establish a
stable regulatory climate to encourage qualified operators to
remain in business and be willing to make needed capital
investments, which will in turn lead to the provision of high
quality services to the public. Rural communities also stand to
benefit from this bill. As commodity enterprises have suffered,
tourism has been the only option available to many rural towns.
Providing stability and opportunity to outfitters, virtually
all of whom operate in rural areas, will help provide an
important economic opportunity to help offset the loss of
extractive activities.
In addition to assisting rural communities, the public, and
the guiding and outfitting sector, there is a need to provide
the land agencies sufficient flexibility to manage a stable
consistent permit system and deal with on-the-ground
circumstances. The legislation will enable the Federal agencies
to modify permit terms and conditions to reflect changed
environmental or resource conditions. In addition, the agencies
will continue to be able to enforce corrective measures,
including suspension or revocation of a permit. The fundamental
principles of land and resource conservation are not diminished
by the bill.
legislative history
S. 1969 was introduced by Senators Craig, Murkowski, and
Thomas on November 18, 1999 and referred to the Committee on
Energy and Natural Resources. Senators Grams, Hatch, and Smith
of Oregon were later added as cosponsors. The Subcommittee on
Forests and Public Land Management held a hearing on March 29,
2000. At the business meeting on September 20, 2000 the
Committee on Energy and Natural Resources ordered S. 1969
favorably reported, with an amendment.
committee recommendation
The Senate Committee on Energy and Natural Resources, in
open business session on September 20, 2000, by a voice vote of
a quorum present recommends that the Senate pass S. 1969 if
amended as described herein with Senator Bingaman being
recorded in opposition to passage.
committee amendments
During consideration of S. 1969, the Committee adopted an
amendment in the nature of a substitute. In addition to making
numerous technical and clarifying changes, the amendment
addressed several issues raised at the Subcommittee hearing on
the bill. The amendment is explained in the section-by-section
analysis below.
section-by-section analysis
Section 1 contains the short title.
Section 2 presents findings.
Section 3 states the purposes of the Act.
Section 4 defines key terms used in the Act.
Section 5 specifies that the Act is not intended to enlarge
or diminish the rights of non-outfitted individuals or user
groups on Federal lands.
Section 6(a)(1) directs that no person or entity except an
authorized outfitter shall conduct an outfitted activity on
Federal land and an authorized outfitter shall not conduct an
outfitted activity on Federal land except in accordance with an
outfitter authorization.
Paragraph (3) is a special rule for Alaska to recognize
special access rights granted to guides and outfitters, as well
as others, by section 1110(a) of the Alaska National Interest
Lands Conservation Act (P.L. 96-487).
Subsection (c) establishes criteria for award of an
outfitter a permit and specifies that an outfitter
authorization shall provide a reasonable opportunity for an
outfitter or guide to engage in a successful business venture.
Subsection (d) specifies that the Secretary may grant an
outfitter permit if the outfitted activity is not inconsistent
with or incompatible with resource management plans for the
area and meets the criteria established by this Act.
Subsection (e) outlines the provisions of an outfitter
permit; obligates outfitters to defend and indemnify the United
States; specifies a system for performance-based renewals,
transfers, and revocations of permits; modification procedures
for permits if unanticipated material changes occur; right of
appeals and judicial reviews. This subsection also authorizes a
term of 10 years, establishes conditions which would allow the
Secretaries to grant shorter terms, and makes provisions for
trial terms for new outfitters.
Subsection (f) provides that a temporary outfitter
authorization for a term of no more than 2 years may be granted
and reissued or renewed at the discretion of the Secretary.
Section 7 establishes terms and conditions for the payment
of fees for outfitter permits and requires Federal agencies to
use consistent methodologies to determine fees.
Section 8 establishes liability requirements for outfitters
and the United States related to permitted outfitter activities
on public land.
Section 9 governs allocation of use and provides that an
outfitter permit shall provide a principal allocation of
outfitter use and specifies that upon renewal, transfer or
extension of an outfitter permit, the same principal allocation
of use shall be included unless an adjustment is required in
accordance with this Act.
Subsection (d) allows the Secretary to adjust an allocation
of use along with related terms and conditions of the permit to
reflect changes in resource management plans or requirements
arising under other law.
Section 10 directs the Secretary to develop a process for
annual evaluation of the performance of an authorized
outfitter.
Subsection (e) addresses eligibility for renewal and
requires the Secretary to provide the outfitter with the
cumulative results of performance evaluations during the term
of the permit.
Section 11 addresses renewal, revocation or suspension of
outfitter permits by establishing a performance-based renewal
system.
Section 12 authorizes the transferability of outfitter
permits and the conditions required for such transfers.
Section 14 establishes procedures for appeals and judicial
review rights of an outfitter.
Section 15 is a savings closure to assure that nothing in
the Act limits or restricts any right, title, or interest of
the United States in or to any land or resource.
Section 16 authorizes and directs the promulgation of
regulations within two years of enactment of this Act.
Section 17 clearly specifies that S. 1969 will not
supersede or otherwise affect new National Park Service
concessions law passed by Congress in 1998, nor preempt any
outfitter or guide licensing law of any State or territory.
Section 18 sets forth transition provisions for outfitter
authorized to conduct commercial outfitted activities on the
date of enactment.
cost and budgetary considerations
The Congressional Budget Office estimate of the costs of
this measure has been requested but was not received at the
time the report was filed. When the report is available, the
Chairman will request it to be printed in the Congressional
Record for the advice of the Senate.
regulatory impact evaluation
In compliance with paragraph 11(b) of rule XXVVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 1969.
The bill is not a regulatory measure in the sense of
imposing Government-established standards or significant
economic responsibilities on private individuals and
businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 1969, as ordered reported.
executive communications
On September 20, 2000, the Committee on Energy and Natural
Resources requested legislative reports from the Department of
the Interior and the Office of Management and Budget setting
forth Executive agency recommendations on S. 1969. These
reports had not been received at the time the report on S. 1969
was filed. When the reports become available, the Chairman will
request that they be printed in the Congressional Record for
the advice of the Senate. The testimony provided by the Bureau
of Land Management and the Forest Service at the Subcommittee
hearing on S. 1969 follows.
Statement of Elaine F. Brong, Deputy Assistant Director for Renewable
Resources and Planning, Bureau of Land Management, Department of the
Interior
Thank you for the opportunity to testify regarding S. 1969,
the Outfitter Policy Act. The Department of the Interior
recognizes the important contributions outfitters and guides
can make toward visitors' enjoyment of the public lands. In
partnership with the Department, outfitters and guides offer
tours that make back-country areas more accessible. Outfitters
may provide interpreters who can inform and educate visitors
about the history of the public lands, explain how multiple-use
management is implemented, and foster greater appreciation for
the conservation efforts of past generations that allow today's
visitors to use and enjoy the abundant resources on our
Nation's public lands.
The approach represented by S. 1969 is unacceptable. The
effect of S. 1969, though it may be unintended, is to grant an
apparent right to authorized commercial outfitters to use
specific allocations of public land or water resources. This
apparent ``right'' does not square with the bill's disclaimer
in Sec. 16 that ``* * * Nothing in this Act limits or restricts
any right, title, or interest of the United States in or to any
land or resource * * *'' Until this inconsistency is resolved
to make explicit that an outfitter and guide permit, like all
other permits to use the resources of our nation's public
lands, is a privilege and not a right, the Department strongly
opposes the bill as written.
Specifically, we are concerned that S. 1969:
Grants and apparent monopoly right to authorized
commercial outfitters to use public land or water
resources;
Endangers the safety of visitors to public lands;
Endangers the protection of fish, wildlife, and other
natural resources on public lands; and
Improperly inserts the government into business
decisions affecting outfitter profitability.
background
S. 1969 affects three bureaus within the Department of the
Interior: the Bureau of Land Management (BLM); the Fish and
Wildlife Service (Service); and the Bureau of Reclamation
(Reclamation). Each bureau's mission is unique, as are the
resources under its administration and public expectations of
recreation opportunities.
Bureau of Land Management
The BLM is the Nation's leading steward of open space. Its
multiple-use mandate is to administer 264 million acres of
America's public lands, located primarily in 12 western states,
in a way that sustains the health, diversity, and productivity
of the public lands for the use and enjoyment of today's and
future generations. In the past, the agency was focused
primarily on a handful of programs: range, cadastral surveying,
minerals, and lands. Today, BLM also has recreation
specialists, wildlife biologists, archaeologists, and others
who help the BLM meet the public's evolving needs and desires
for use of the public lands.
The BLM-managed lands offer visitors a vast array of
recreational opportunities. These include hunting, fishing,
camping, hiking, boating, hang gliding, off-highway vehicle
driving, mountain biking, birding, and visiting natural and
cultural heritage sites. The BLM administers 205,498 miles of
fishable streams, 2.2 million acres of lakes and reservoirs,
6,600 miles of floatable rivers, over 500 boating access
points, 69 National Back Country Byways, and 300 Watchable
Wildlife sites. The BLM also manages 4,500 miles of National
Scenic, Historic, and Recreational Trails, as well as thousands
of miles of trails used by motorcyclists, hikers, equestrians,
and mountain bikers. With over 20 million people now living
within 25 miles of BLM-managed lands, access to outdoor
recreational opportunities on public lands enhances the quality
of life in areas facing increasing urbanization.
Fish and Wildlife Service
The Fish and Wildlife Service is the principal Federal
agency responsible for conserving, protecting and enhancing
fish, wildlife, and plants in their habitats for the continuing
benefit of the American people. The Service manages the 93-
million-acre National Wildlife Refuge System of more than 520
national wildlife refuges and thousands of small wetlands and
other special management areas. It also operates 66 national
fish hatcheries, 64 fishery resource offices and 78 ecological
services field stations.
Refuges are a place where all wildlife species can be
observed in natural settings. More than 30 million visitors
come to national wildlife refuges each year. To enhance their
experience, a variety of wildlife-oriented recreational
activities are offered. Recreational activities vary with each
refuge and the season and may include hiking, auto tours,
bicycling, photography, wildlife observation, hunting, and
fishing. The National Wildlife Refuge System Act of 1966, other
laws, and the Service's policy permit hunting on a national
wildlife refuge when it is compatible with the purposes for
which the refuge was established and acquired. The decision to
permit hunting, trapping, and fishing on national wildlife
refuges is made on a case-by-case basis that considers
biological soundness, economic feasibility, effects on other
refuge programs, and public demand.
Bureau of Reclamation
The Bureau of Reclamation was created to help develop and
sustain the economy, improve the environment, and improve the
quality of life in the 17 western states by providing reliable
supplies of water and energy. Since 1902, Reclamation has been
developing an infrastructure of dams, hydroelectric
powerplants, and water conveyance facilities to help accomplish
this task. This infrastructure also provides flood protection
fish and wildlife habitat, river regulation, water quality
protection and improvement, and recreation.
More than 300 recreation areas have been created at
Reclamation projects, including popular areas such as Lake
Mead. Of these, nearly 200 are managed by non-federal agencies
such as state and county parks departments. The recreation
areas include almost 2 million acres of water surface and about
13,000 miles of shoreline. Commercial recreation is handled
through about 225 commercial concessions operations, offering
public marinas, campgrounds, and swimming beaches. More than 90
million visits occur each year to these developed recreation
areas. In addition, Reclamation projects have created new
recreation opportunities for fishing on the rivers downstream
of the dams.
objections
A general note: numerous internal inconsistencies in S.
1969 lead to confusion about what the bill would actually do.
Key sections appear to be mutually exclusive. For example, Sec.
5 states:
Nothing in this Act enlarges or diminishes the right
or privilege of occupancy and use of Federal land under
any applicable law (including planning process rules
and any administrative allocation), by a commercial or
non-commercial individual or entity that is not an
authorized outfitter or outfitted visitor.
Sec. 6(a)(1) states:
PROHIBITION: No person or entity, except an
authorized outfitter, shall conduct a commercial
outfitted activity on Federal land.
So does a commercial outfitter who wants to continue doing
business using public lands need to get an authorization permit
under this Act? Sec. 5 seems to say, you can continue your
business even if you don't receive an authorization permit.
Sec. 6. seems to say, no, you can't.
Specifically, the Department has four main objectives to S.
1969:
S. 1969 grants an apparent monopoly right to selected commercial
outfitters to use public land or water resources
S. 1969 advances the notion of a commercial outfitter's
indefinite right to use the allocated amount of the resource.
The bill appears to require an agency to grant an authorized
commercial outfitter an allocation of public land or water
resources to conduct its business for an indefinite number of
renewable 10-year terms. Once outfitted use is allocated, it is
largely controlled by the outfitter rather than by the managing
agency. An authorized commercial outfitter would have the right
to exclude other commercial outfitters from use of the
allocated amount of the public land or water resource, to renew
its allocation indefinitely, and to control the transfer or
sale of the allocation. These effects of S. 1969 are
fundamentally inconsistent with existing law governing the
BLM's management of public lands (the Federal Land Policy and
Management Act 1976, P.L. 94-579)(FLPMA) and with BLM's
implementing policies and practices.
Recreation, like all other public land uses, is subject to
land use planning under FLPMA. As of December 1998, all BLM
lands in the contiguous United States are covered by land use
plans. The process of developing land use plans includes many
opportunities for public review and input. ``Carrying
capacity'' is a determination made through the land use
planning process that to permit more than a certain amount of
resource use during a specific time period--irrespective of who
the permittee is--would cause damage to the resource.
In implementing the recreation component of land use plans,
BLM generally does not make allocations of resource use unless
resource's carrying capacity is exceeded. If there is no
competing use or ceiling on the amount of use in a particular
geographic area, the BLM allows the outfitter to use as much of
the resource as it needs to operate it business. This is the
case for over 90 percent of the BLM's outfitter and guide
special use permits.
The bill grants an apparent right to outfitters and guides
to force the agencies to allocate use to them, regardless of
the resource condition or carrying capacity. S. 1969 would
require an agency to allocate a specific amount of resource use
to a specific commercial outfitter for the purpose of making
that outfitter's business profitable, rather than for the
purpose of protecting the resource from overuse.
S. 1969 endangers the safety of visitors to public lands
With any permit, FLPMA authorizes an agency to order an
immediate temporary suspension prior to hearing if the agency
determines that such a suspension is necessary to protect
health or safety or the environment. S. 1969 would prevent an
agency from revoking an outfitter's permit while allegations of
wrongdoing are investigated. The bill would not allow an agency
to revoke an outfitter's permits during the course of a law
enforcement investigation, nor give the agency the right to
revoke a permit for the cumulative impact of numerous
violations of the regulations, until the end of the permit
period.
The burden of proof that must be met before a commercial
outfitter's permit can be revoked is higher than the burden for
many crimes committed on the public lands, and must be proven
in a court of law. Currently, most public lands crimes are
misdeameanors--more likely to result in a ticket and a small
fine than a full-blown jury trial. Under S. 1969, the agencies
could not respond to such misdemeanors by suspending or
revoking the permit. As a result, liability may be imposed on
the government under this provision, either for failure to
remove a bad actor from the public land or for his loss of
business if the government does so. Compounding this problem,
no bonding requirements are imposed on the outfitter itself by
this bill.
The bill sets an extreme standard. An agency may revoke an
outfitter's permit only after a court finds that the
outfitter's conduct demonstrates ``repeated and willful
disregard'' for the health and welfare of the outfitter's
customers or the conservation of the resources on which the
commercial outfitted activities are conducted. ``Willful
disregard'' requires proof of conduct far worse than negligent
or reckless behavior. If an outfitter were found guilty of
negligent or even reckless disregard for human safety, an
agency could not revoke the permit.
In addition, the bill's sections limiting outfitter
liability place public safety further at risk. Many types of
activities offered by commercial outfitters on public lands,
such as rock-climbing, river rafting, or cave exploration, are
challenging physical events which pose unique hazards and risk.
Insurance premiums of such outfitting activities may be high,
or the outfitter may be unable to secure insurance for the
riskiest activities, reflecting the insurance industry's
determination of risk. High insurance premiums may constrict
some outfitters' economic opportunity. S. 1969 absolves an
outfitter from liability for injuries or damage related to ``*
* * the inherent risks of the commercial outfitted activity * *
* or the inherent risks present on Federal land.'' The bill
would shift much of the potential liability from the commercial
outfitter onto the Federal government, thereby reducing the
outfitter's insurance premium--and eroding a powerful incentive
to conduct operations safely.
S. 1969 endangers the protection of fish, wildlife, and other natural
resources on public lands
Sec. 16(a) of the bill states: ``Each program of outfitted
activities carried out on Federal land shall be consistent with
the mission of the administering federal agency and all laws
(including regulations) applicable to the outfitted
activities.'' Under this provision, it appears that an
authorized outfitter need comply only with those laws
``applicable to the outfitted activities.'' This provision
would greatly reduce an authorized outfitter's obligations, and
stands in sharp contrast to FLPMA. Existing law requires that
BLM's land use plans ``provide for compliance with applicable
pollution control laws, including state and federal air, water,
noise, or other pollution standards or implementation plans.''
FLPMA Sec. 202(c)(8). Similarly, BLM is authorized to revoke or
suspend any permit for violation of laws or regulations
applicable to the public lands or ``applicable State or Federal
air or water quality standard or implementation plan.'' FLPMA
Sec. 302(c).
Under S. 1969, an outfitter could be held liable only for
personal injuries or resource damage resulting from improper
performance of activities authorized by the permit. an
authorized outfitter could not be held liable for harm
resulting from conduct that violated other laws, such as air or
water pollution control. Consider an example: an outfitter
received a permit for rock-climbing in a remote location. The
site is inaccessible, however, except by motorized boat. A
major fuel spill or waste expelled from the motorized boat may
pollute the stream, resulting in harmful consequences
downstream. So long as the outfitter complied with the terms of
the permit for rock climbing, the bill would shield the
outfitter from liability for the water pollution resulting from
the use of a motorized boat to bring outfitted visitors into
the remote location.
Protection of fish, wildlife, wilderness, and other
resource values is placed at further risk because the
outfitter' apparent right of allocation under S. 1969 applies
to areas such as wilderness study areas, or Areas of Critical
Environmental Concern, where an allocation for commercial
recreational use may be inappropriate, even if not expressly
restricted under a Resource Management Plan (RMP). The BLM
currently has over 622 wilderness study areas (17 million
acres) under interim management.
Finally, the bill undercuts existing protection of
resources in an emergency. Under FLPMA Sec. 204(e), an agency
must make an immediate withdrawal of public land if ``an
emergency situation exists and [that] extraordinary measures
must be taken to preserve values that would otherwise be lost.
* * *'' S. 1969 allows an agency to change the terms of a
permit subsequent to a change in the agency's Resource
Management Plan but is silent as to the impact of an agency's
immediate withdrawal of public land in an emergency.
S. 1969 improperly inserts the government into decisions affecting
profitability of outfitter businesses
S. 1969 requires a federal agency to calculate fees for an
authorized outfitter in such a way that the outfitter is
assured of a ``reasonable opportunity for net profit.'' Fees
for most other public land activities that require permits are
based on fair market value, and are not tailored by statute, as
this bill would direct, to assure a net profit for a commercial
user of a public land resource. The Department opposes
exempting commercial outfitters from fees based on fair market
value.
In addition, the bill's limitation on outfitter liability
means an agency has to give an outfitter the right to conduct
hazardous activity on public land, and also has to assume the
risk of injury to the outfitters' customers or damage to the
resource from the outfitters' activities. This shift of
liability means that every taxpayer--whether he or she ever
visits the public lands--is paying to keep an individual
outfitter's insurance premium down. Such a subsidy does not
serve the public good.
Finally, while the theme of S. 1969 is competition in the
awarding of authorized outfitter permits, the bill strictly
limits the occasions on which a federal agency can require
commercial outfitters to compete. At key points in the permit
process, existing commercial outfitters are insulated from
competition:
Outfitters holding permits on the date S. 1969 is
enacted would be ``grandfathered-in'' during the two
years following enactment in which agencies must
develop regulations;
The statue ``deems'' the outfitter's performance to
be good, if the agency for whatever reason has not
formally evaluated the outfitter's performance within
60 days after the end of the outfitter's season;
An outfitter with good performance is assured of an
allocation for 10 years with a right of renewal for an
indefinite number of subsequent 10-year terms;
And, unless the outfitter is found guilty of willful
disregard for the health and safety of its customers or
the resource on which the outfitted activities are
conducted,
the permit--the outfitters' right to use an allocated amount of
public land or water resources--will remain the property of the
outfitter, to use or to sell at its discretion.
conclusion
Mr. Chairman, if there are specific problems involving
federal agencies and the commercial outfitting industry that
need to be addressed, we would be happy to work with the
industry to address them. The agencies have already undertaken
steps to improve customer service and make the permitting
process more efficient. In the past year, BLM has trained over
250 of its recreation staff in order to provide more consistent
administration of the BLM's Special Recreation Permit (SRP)
program. This summer, the BLM and the Forest Service will
introduce a joint ``BLM/Forest Service Outfitter and Guide
Application'' form. We remain strongly opposed to S. 1969.
----------
Statement of Dennis Bschor, Director, Recreation, Heritage and
Wilderness Resources, Forest Service, Department of Agriculture
Mr. Chairman and members of the subcommittee; thank you for
the opportunity to testify on S. 1969, the Outfitter Policy Act
of 1999. With me today is Kenneth Karkula, Recreation Special
Uses program manager.
We defer to the Department of the Interior for the
Administrator's position on this bill, but concur in the
Department's assessment that S. 1969 would severely limit the
agency's flexibility to manage the outfitter and guide program
and be responsive to the needs of the public.
Mr. Chairman, before discussing our concerns with the bill
I would first like to express just a few of the positive
benefits and some of the challenges facing our outfitter and
guide program.
We agree with the view you stated when you introduced this
bill: ``Many Americans want and seek out the skills and
experience of commercial outfitters and guides to help them
enjoy a safe and pleasant journey through our forests and
deserts and over the rivers and lakes that are the spectacular
destinations for many visitors to our federal lands.''
There are millions of people who lack outdoor skills and
who have never experienced the beauty and diversity of their
public lands. Many of these people desire the safe environment
that licensed guides and outfitters provide. There are numerous
examples where outfitters and guides have helped users achieve
a very positive out of doors experience, including outfitters
who take physically challenged or economically disadvantaged
children into the Wilderness or assist an arthritic man who
wants to take his grandson on his first hunting trip. In
addition, as the agency has become more involved with various
tourism associations, we have learned that many international
groups wish to provide eco-tourism trips to the United States
to visit our public lands.
Mr. Chairman, you also stated during the bill's
introduction, that the agencies represented here today used
practices that historically have worked well for the
outfitters, visitors, and other user groups, as well as for the
federal land managers in the field. I would like to thank you
for the recognition of the agencies' efforts to maintain a
successful outfitter and guide program.
I also agree that managing the increasing competition for
the nation's recreation resources today is challenging.
Outfitting and guiding is one of the fastest growing uses of
federal lands today.
We currently have approximately 6,000 permit holders that
provide very necessary and sought-after services. These
services range from traditional hunting and fishing trips to
llama treks: from jeep tours and white water rafting, to guided
hikes and prehistoric treks and everything in between.
With this variety of outfitting and guiding activities on
federal lands and their potential impact on the resources, we
believe that the outfitter and guide administrative system must
address concerns of public health and safety, provide a
pleasant experience for the visitor, and protect the interests
of the government. Flexibility is an essential ingredient of a
successful system. It is our position that this bill does not
meet those objectives.
I would like to discuss several major problems with the
bill including:
The bill codifies very detailed direction that is
traditionally found in regulations and policy. These provisions
severely limit agency flexibility to address specific needs as
they arise. In addition, our current policy was developed
through the Administrative Procedure Act (APA), a process that
included public involvement. This policy takes into account the
needs and interests of the outfitting and guiding industry and
the public in general. Any changes to the current policy would
also be implemented with public involvement in compliance with
APA.
Another serious concern is the question of diminished
liability of outfitters and guides, which would result in
increased liability of the United States and decreased
incentive for outfitters and guides to operate safely. In
several respects, the bill would substantially reduce the
protection from liability currently afforded the United States
under indemnification provisions in Forest Service regulations
and permits. Under S. 1969, outfitters and guides would be
liable only for torts, not for other sources of loss or damage
to persons or property, such as losses arising under pollution
control laws.
In addition, the standard for indemnification in the bill
is significantly narrower than the standard in agency
regulations and permits. The bill also would allow outfitters
and guides to require their customers to sign waivers of
liability, which could increase the liability of the United
States and run counter to the public interest. To the extent
the bill would shield outfitters and guides from liability, the
bill would decrease their incentive to obtain insurance that
protects the interests of the United States and would decrease
their incentive to operate safely.
The language in the bill providing for ``a reasonable
opportunity * * * to realize a profit'' and a ``fair and
reasonable return to the United States through appropriate
fees'' and taking into account ``the obligations of the
outfitter'' and ``economic conditions'' does not currently
exist in applicable law and policy. This new language would
impose vague, subjective standards that could spawn litigation
and make it difficult for the agencies to impose a land use fee
based on the fair market value of the use of the land for
outfitting and guiding. Fair market value is the standard for
establishing fees for land use under the Independent Offices
Appropriations Act and Office of Management and Budget Circular
No. A-25.
The inability to make land use allocations in accordance
with applicable law and the public interest. Distinctions in
the bill with respect to allocations of use and the bases for
adjusting them would prevent the Forest Service from allocating
land use in accordance with forest land and resource management
plans that are required by the National Forest Management Act
and that are adopted with significant public input.
Eliminate the necessary discretion in the renewal and
termination of outfitter permits:
1. The bill's renewal provision would confer a benefit that
currently no other recreation special use permit holder enjoys,
even ski areas that have significant investments on National
Forest System lands. For all recreation special use, the permit
expires at the end of its term, and the Forest Service retains
the discretion to determine whether to renew the use, and if
so, under what terms and conditions.
2. The bill would establish a lengthy ten-year term for
permit holders that are new and untested. While we understand
that a permit term longer than one year is needed for
outfitters and guides that have performed successfully, a ten-
year term is inappropriate for inexperienced outfitters and
guides and would make outfitting and guiding businesses
operating on Federal lands much less competitive.
3. The bill would severely limit the agencies' ability to
use competition to select permit holders. This method is not
only fair where competition for limited opportunities exists;
this method is also one of the best for selecting the most
qualified applicant and establishing the fair market value of
the land use.
4. The bill would authorize transfer of permits and would
prevent the agencies from imposing new terms and conditions in
transferred permits, thereby greatly reducing the agencies'
flexibility to address changing conditions and circumstances.
5. The bill would greatly limit the agencies' ability to
revoke a permit, even for poor performance.
The record-keeping requirements imposed on outfitters and
guides in the bill are vague and inadequate. The requirements
imposed on the agencies for establishing record-keeping
requirements are vague and subjective and could impinge on the
agencies' ability to require adequate record keeping. The
access to records provision in unclear and appears to cut off
the Government's access to outfitters' and guides' records'
after a certain point, which would hamper the agencies' ability
to administer and audit outfitting and guiding businesses.
In conclusion, it is our belief that this bill will not
improve out outfitter and guide program, nor will it adequately
protect the interest of the United States and the recreating
public. We are willing to continue to work with our partner
agencies. Congress, the industry, and the recreating public to
resolve many of the industry's concerns so that they can
continue to provide this much needed public service.
This concludes my prepared remarks. I would be pleased to
answer any questions you may have.
changes in existing law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by the bill S. 1969, as
ordered reported.