19–006

107TH CONGRESS REPT 107–752 " HOUSE OF REPRESENTATIVES ! 2d Session Part 1

OUTFITTER POLICY ACT OF 2001

OCTOBER 15, 2002.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. HANSEN, from the Committee on Resources, 

submitted the following 

R E P O R T 

[To accompany H.R. 2386] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Resources, to whom was referred the bill 

(H.R. 2386) to establish terms and conditions for use of certain 

Federal lands by outfitters and to facilitate public opportunities for 

the recreational use and enjoyment of such lands, having considered the same, report favorably thereon without amendment and 

recommend that the bill do pass. 

PURPOSE OF THE BILL

The purpose of H.R. 2386 is to establish terms and conditions for 

use of certain Federal lands by outfitters and to facilitate public opportunities for the recreational use and enjoyment of such lands. 

BACKGROUND AND NEED FOR LEGISLATION

Outfitters and guides provide opportunities for outdoor recreation 

for many families and groups who would otherwise find the 

backcountry inaccessible. The primary purpose of the Outfitter Policy Act is to ensure accessibility to Federal lands by all segments 

of the population and to ensure quality recreation services for the 

public. 

Outfitters must comply with inconsistent policies across the federal land management agencies. Present inconsistent rules and polices often hinder outfitters from providing quality services, and 

these inconsistent rules inadequately provide for evaluation of 

guide/outfitter operations to assure quality services to the public. 

Congress has established standards for administering guides/outfitter permits on National Park Service lands. H.R. 2386 sets simiVerDate 0ct 09 2002 21:19 Oct 16, 2002 Jkt 019008 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\HR752P1.XXX HR752P1
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lar standards for the Forest Service, Bureau of Land Management, 

U.S. Fish and Wildlife Service, and Bureau of Reclamation. 

This bill sets out the criteria for the grant of an outfitter permit. 

Criteria for grant of an outfitter permit include skill, experience, 

knowledge of the resource area, and financial capability. Safety, 

quality recreational experiences, educational opportunities, and 

conservation of resources are also considered. 

The Secretary may grant an outfitter permit if the outfitted activity is not inconsistent or incompatible with land and resource 

management plans for the area and meets the criteria established 

by this Act. The grant of an outfitter permit will be determined 

competitively if the authorization is a new opportunity, or if the 

permittee fails to adhere to the terms and conditions of the permit. 

The bill requires that an outfitter permit provide for the health 

and welfare of the public; conservation of resource values; a return 

to the United States through an authorization fee; the obligation 

of an authorized outfitter to defend and indemnify the United 

States; and an appropriate allocation of an amount of use (such use 

being subject to adjustment to reflect the changes in land and resource management plans); and other terms and conditions. This 

Act authorizes a term of 10 years unless foreseeable changes in 

land and resource management plans or conditions necessitate a 

term of less than 10 years, or unless the outfitter seeks or agrees 

to a permit term of less than 10 years. Permit terms and conditions 

may be adjusted by the granting agency during the term of the permit. A new authorized outfitter will be given a probationary status 

during the first two years of a permit. These permits do not create 

any property rights. 

The bill has been carefully drafted not to prescribe specific allocations or use levels for outfitters and guides. Decisions about appropriate levels of outfitted or guided use in a given unit or area 

remain within the purview of the agencies, using other statutory 

and regulatory principles. This bill does not alter or change those 

principles. Instead, it is directed at the matter of outfitter permit 

administration after the agency has decided that outfitted use is 

appropriate. 

To determine the authorization fee, the Secretary will consider 

the obligations of the outfitter, a fee amount that makes it possible 

to engage in a successful business venture, and the fair value of 

the use granted by the outfitter authorization. 

The fee may be modified to reflect changes to the terms and conditions of the outfitter permit; to account for extraordinary unanticipated changes affecting operating conditions (e.g., natural disasters or economic conditions); to reflect changes resulting from actions of other government entities (e.g., availability of State fish 

and game licenses); to deal with the imposition of fees assessed 

under other laws; or adjustments to an allocation of outfitter use. 

This bill makes the outfitter liable to the United States for all 

injury, loss, damage, and costs incurred by the United States arising from an outfitter’s negligence, gross negligence, or willful and 

wanton disregard for persons or property associated with the outfitter’s conduct of an outfitted activity under an outfitter authorization. An outfitter shall defend and indemnify the United States 

similarly for all injury, loss, damage, and costs the United States 

may incur as a result of judgments, claims, or losses arising from 

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the outfitter’s negligence, gross negligence, or willful and wanton 

disregard for persons or property associated with the outfitter’s 

conduct of an outfitted activity under an outfitter authorization, except when the United States is solely responsible for such events. 

The liability and indemnification provisions in the bill do not limit 

any liability or indemnification obligation an authorized outfitter 

may have for environmental contamination, injury to natural resources, or any other cause of action that arises under other law. 

The act requires the Secretary to develop a process for annual 

evaluation of the performance of an authorized outfitter which defines three levels of performance: good, marginal, and unsatisfactory. An evaluation shall account for factors beyond the control of 

the outfitter and ensure that the effect of any performance deficiency reflected by the performance rating is proportionate to the 

severity of the deficiency. An outfitter shall receive written notice 

of any conduct or condition that, if not corrected, might lead to a 

marginal or unsatisfactory performance rating. Failure to correct 

any marginal or unsatisfactory conduct or condition will result in 

an unsatisfactory rating for that year. 

This bill also provides for a performance-based renewal. If an 

outfitter has more than one annual unsatisfactory rating, the outfitter cannot qualify for earned renewal. An outfitter permit may 

be suspended or revoked if the outfitter has failed to correct a condition considered by the Secretary to be significant, if the outfitter’s 

permit fees are overdue, or if the outfitter has demonstrated willful 

disregard for the health and welfare of the public or the conservation of resources.

Outfitter permits can be transferred only with the approval of 

the Secretary, and the Secretary will approve the transfer unless 

she determines that the transferee is not a qualified outfitter. The 

bill retains the current administrative appeals process at each 

agency and it confirms the right of an outfitter affected by a final 

decision to commence a civil action in United States district court. 

Outfitters operating under current permits will be granted a new 

permit under this bill if the outfitter’s aggregate performance has 

been good or the equivalent of good, satisfactory, or acceptable 

under the current rating system. 

COMMITTEE ACTION

H.R. 2386 was introduced on June 28, 2001, by Congressman 

James V. Hansen (R–UT). The bill was referred to the Committee 

on Resources and in addition to the Committee on Agriculture. 

Within the Committee on Resources, H.R. 2386 was referred to the 

Subcommittees on National Parks, Recreation and Public Lands; 

Forests and Forest Health; and Fisheries Conservation, Wildlife 

and Oceans. On July 25, 2002, the Subcommittees held a joint 

hearing on the bill. On September 12, 2002, the Full Resources 

Committee met to consider the bill and the Subcommittees were 

discharged from further consideration of H.R. 2386. The bill was 

then ordered favorably reported to the House of Representatives by 

voice vote. 

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SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

This Act may be cited as the ‘‘Outfitter Policy Act.’’

Section 2. Findings 

The Committee finds that many members of the public need or 

desire commercial outfitted activities on Federal land to facilitate 

the public use and enjoyment of Federal lands. The Committee recognizes that authorized outfitters need a stable regulatory climate 

in order to operate successfully, that the United State should receive a return through fees, and that a performance-based permit 

renewal system is a strong incentive to provide quality services to 

the public. 

The Committee does not intend that paragraph (3)(A)(ii) of section 2 require federal agencies to ensure that an outfitter granted 

a permit under this bill will have a successful business. Instead, 

the Committee intends to strongly encourage the agencies to be 

supportive of outfitting and guiding, as outfitters further agency 

missions of public service, and to be cognizant of agency actions 

that may create unintended burdens that would unduly affect an 

outfitter’s ability to provide quality services to the public. The Committee also wants to assure that authorized outfitters operate reasonably and in accordance with permit terms and conditions. The 

Committee encourages sound business planning by outfitters and 

guides. 

Section 3. Purposes 

This section establishes the terms and conditions for outfitting. 

It establishes a stable regulatory climate for outfitters, and it facilitates recreational opportunities on Federal lands for the outfitted 

public. 

Section 4. Definitions 

This section defines the terms used in this bill. One term defined 

in this bill is ‘‘commercial outfitted activity.’’ Many non-profit entities conduct educational programs on Federal lands. These programs are very similar to those conducted by for-profit entities and 

in most circumstances are competing for the same resources and 

customers. It is the intent of this Act to place these non-profit, but 

clearly commercial, entities under the authority of this Act. 

Programs or activities directly related to academic activities, 

courses, or programs provided or offered by accredited educational 

institutions are intended to be exempt from the requirements for 

a section 6 permit. In cases, however, where educational entities 

are offering de facto commercial services not tied directly to courses 

for academic credit, a section 6 permit will be necessary. The Committee intends to accommodate genuine academic programs, but expects that when educational institutions effectively go into the outfitter business by offering quasi-commercial eco-tourism services, 

such institutions will be subject to the same requirements the bill 

imposes on commercial outfitted activities. 

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Section 5. Nonoutfitter use and enjoyment 

This Act is not intended to enlarge or diminish the rights or 

privileges of non-outfitted individuals or user groups to use or occupy Federal lands. 

Section 6. Outfitter authorizations 

This section sets out the requirements for the grant of outfitter 

permits. One of the selection criterion for grant of a permit is the 

financial capability the permit applicant. The purpose of this criterion is to assure that prospective permittees have the financial 

resources and capabilities to provide quality services to the public. 

The Committee wants to encourage good business planning by permittees as a means of facilitating good services to the public. This 

criterion is not to be used by the agencies to encourage fee bidding 

or to stand for the proposition that financial capability means the 

ability to pay substantial fees to the federal government. 

The Committee expects that permit terms and conditions, as well 

as permit administration procedures, will not be unduly burdensome or onerous to such a degree that these primarily small businesses cannot succeed. The Committee wants to ensure that the 

agencies do not erect barriers that make it effectively impossible to 

engage in a successful business venture. There is no intention, 

however, to guarantee profits or to ensure success by permittees. 

The reference to ‘‘approved resource management plans’’ in section 6(d)(1)(A) is intended to encompass land resource plans, area 

resource plans, forest land and resource management plans, wilderness plans, wild and scenic river plans, and comprehensive conservation plans, among others. All these plans apply to a specific 

geographic area, make programmatic decisions, and are developed 

using agency National Environmental Policy Act procedures. 

In addition to these broad scale plans, agencies routinely prepare 

more specific or subsidiary plans, including public use management 

plans, wilderness plans, and transportation plans. These types of 

specific plans that are adopted pursuant to public processes are to 

be encompassed within the reference to an approved land and resource management plan. 

The fact that land and resource management plans are pending 

should not automatically preclude issuance of permits for ten-year 

terms. In fact, permit administrators should generally issue permits for ten-year terms to reduce administrative overhead and to 

provide improved financial planning for permittees. Since the permits are subject to adjustment to make them consistent with agency land and resource management plans, the ten-year term should 

not preclude adjustments necessary to match land and resource 

management plans. If, however, a land and resource management 

plan is within a year of being approved and changes in the permit 

or amount of outfitted use are anticipated, a shorter term might be 

justified. 

Issuance of authorizations for a term of less than ten years 

should be limited. Such cases should be foreseeable and clearly 

warrant a reduced term. For example, a land and resource management plan has set a date to close an area to public access. If that 

date is less than ten years in the future, the term of outfitter authorizations for that area may be limited to that date, unless other 

locations are available for outfitting and guiding. 

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Section 7. Authorization fees 

In determining the amount of an authorization fee, the Secretary 

should consider the obligations of the outfitter under the permit, 

the provision of a reasonable opportunity to engage in a successful 

business venture, and the fair value of the use and occupancy 

granted by the outfitter authorization. 

When determining the fee, the Committee does not intend for the 

agencies to layer fees on an outfitter and its customers when agencies have the authority to charge a fee at multiple locations or for 

multiple activities. The Committee does not want the agencies to 

charge outfitters twice for the same service or facility, for example, 

by charging the outfitter’s customers a facility use fee and counting 

that fee as revenue collected by the outfitter for purposes of calculation of the outfitter’s permit fee. However, the Committee intends the agencies to charge outfitters for their use and occupancy 

of Federal lands, as well as for their customers’ use of facilities 

that are made available to the public for a fee under other authorities. When determining fees pursuant to subsection (a)(2) of this 

section, agencies should take into consideration costs to the government in providing such facilities for outfitter use. 

The reasonable schedule required in section 6(c)(2)(C) may consist of a payment prior to issuance of an outfitter authorization or 

commencement of annual operations and at a minimum should consider business cash flow, seasonality of the use, and cost to the federal government to process bills. 

Section 8. Liability and indemnification 

This section establishes the principles governing liability and indemnification. It also provides for the outfitted public to acknowledge the risks associated with outfitted activities, and, subject to 

certain conditions, to waive negligence claims arising out of outfitted activities. 

Section 9. Allocation of use 

Terms and conditions of an outfitter permit shall provide for a 

principal allocation of outfitter use. 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 bill. 

The bill does not lock in existing use allocations to outfitters. The 

bill specifically authorizes the agencies to make changes in allocation levels, and to amend allocations during the term of a permit, 

when necessary to comply with changes in material facts and conditions or changes in land and resource management plans. Extended periods of underutilization of allocated use, when compared 

to similar utilization rates of other permittees providing the same 

or similar service in the area, without extenuating circumstances 

such as drought, fire, economic recession, and acts of God, may, for 

example, qualify as a material fact. This ability to amend use allocations applies to permits after renewal or following an approved 

transfer. Since the provision of quality services and investments 

needed for those services require some understanding of the capacity available to the permittee, where allocations are provided they 

should be as stable as possible, notwithstanding the authority to 

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make changes in allocations cited above. This provision is not a justification to change allocations for superfluous reasons. 

Section 10. Evaluation of performance 

The Secretary shall develop a process for annual evaluation of 

performance of an authorized outfitter which defines three levels of 

performance: good, marginal, and unsatisfactory. An evaluation 

shall appropriately account for factors beyond the control of the 

outfitter and ensure that the effect of any performance deficiency 

reflected by the performance rating is proportionate to the severity 

of the deficiency. 

A performance evaluation system shall assure the public of continued availability of dependable commercial outfitted activities, 

and shall provide for suspension or revocation of the authorization 

of an outfitter who fails to meet the required standards. 

Section 11. Renewal, revocation, or suspension of outfitter permits 

Section 11 provides for a performance-based renewal. An outfitter with more than one annual unsatisfactory rating does not 

earn a right of renewal. An outfitter permit may be revoked if the 

outfitter has failed to correct a condition considered by the Secretary to be significant, if the outfitter’s permit fees are overdue, 

or if the outfitter has demonstrated willful disregard for the health 

and welfare of the public or the conservation of resources. Alternatively, all or part of an outfitter permit may be suspended if such 

infractions occur, and under this circumstance, an expedited administrative review shall be provided at the request of the outfitter. 

Section 12. Transferability of outfitter permits 

An outfitter permit shall not be transferred without prior written 

approval by the Secretary. A transfer to a purchaser, heir, or assignee of an interest in the outfitter’s operation shall be approved 

unless the Secretary determines that the transferee is not qualified 

to meet the terms and conditions of the outfitter permit. If the Secretary doesn’t approve or disapprove a transfer after receipt of a 

complete application, the transfer shall be considered to be approved, unless the transferee requests a modification of terms and 

conditions requiring environmental analysis. 

Section 13. Recordkeeping requirements 

The authorized outfitter shall keep reasonable records under a 

simplified procedure, as required by the Secretary. The Secretary, 

for purposes of audit and performance evaluation, shall have access 

to and the right to examine these records for five years following 

the effective date of an outfitter authorization. 

Section 14. Appeals and judicial review 

This section ensures that an agency provide some form of an administrative appeal process. For example, the Forest Service presently has an established appeal procedure largely consistent with 

this section. The section also provides that an outfitter may seek 

judicial review of adverse agency action. 

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Section 15. Lack of effect on existing rights of the United States 

Nothing in this bill limits or restricts any right, title, or interest 

of the United States in or to any land or resource. It is not the 

Committee’s intention for this bill to establish property rights. The 

permits authorized by this bill confer privileges to outfitters that 

do not give rise to compensable property rights. It is important, 

however, to note that outfitter permits impose mutual obligations 

on the respective parties. Outfitters are expected to adhere to the 

terms and conditions of any permit granted under this bill. Similarly, the Committee expects the federal agencies to fulfill the obligations they have under outfitter permits, as well as those established in this bill and comply with the letter as well as the spirit 

of the measure. 

Section 16. Regulations 

Regulations shall be promulgated within two years of enactment 

of this bill. 

Section 17. Relationship to other law 

Provisions of this bill will not supersede or otherwise affect the 

new National Park Service concession law passed by Congress in 

1998, or preempt any outfitter or guide licensing law (including any 

regulation) of any State or territory. 

Section 18. Transition provisions 

An outfitter authorized to conduct commercial outfitted activities 

on the date of promulgation of implementing regulations under the 

authority of this bill shall be entitled, on expiration of the existing 

authorization, to the issuance of an outfitter permit if the outfitter’s aggregate performance has been good or the equivalent of 

good, satisfactory, or acceptable under the current rating system. 

If no recent performance evaluation exists, the outfitter’s aggregate 

performance shall be deemed to be good. 

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII 

of the Rules of the House of Representatives, the Committee on Resources’ oversight findings and recommendations are reflected in 

the body of this report. 

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8, and Article IV, section 3, of the Constitution 

of the United States grant Congress the authority to enact this bill. 

COMPLIANCE WITH HOUSE RULE XIII

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of 

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(3)(B) of that rule provides 

that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974. 

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2. Congressional Budget Act. As required by clause 3(c)(2) of rule 

XIII of the Rules of the House of Representatives and section 

308(a) of the Congressional Budget Act of 1974, this bill does not 

contain any new budget authority, spending authority, credit authority, or an increase or decrease in revenues or tax expenditures. 

3. General Performance Goals and Objectives. This bill does not 

authorize funding, and therefore clause 3(c)(4) of rule XIII of the 

Rules of the House of Representatives does not apply. 

4. Congressional Budget Office Cost Estimate. Under clause 

3(c)(3) of rule XIII of the Rules of the House of Representatives and 

section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the 

Director of the Congressional Budget Office:

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, October 2, 2002. 

Hon. JAMES V. HANSEN, Chairman, Committee on Resources, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2386, the Outfitter Policy 

Act of 2001. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact for this estimate is Deborah Reis. 

Sincerely, 

BARRY B. ANDERSON

(For Dan L. Crippen, Director). 

Enclosure. 

H.R. 2386—Outfitter Policy Act of 2001

H.R. 2386 would establish a uniform policy for issuing permits 

to outfitters and similar businesses that offer certain recreational 

services on public lands. CBO estimates that implementing this bill 

would have no significant effect on the federal budget. H.R. 2386 

contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would have no 

significant effect on the budgets of state, local, or tribal governments. Enacting the bill would have no significant effect on direct 

spending or revenues. 

The legislation would require outfitters to obtain permits to conduct commercial activities on lands under the jurisdictions of the 

Bureau of Land Management, the Forest Service, the U.S. Fish & 

Wildlife Service, and the Bureau of Reclamation. Generally outfitters are small businesses that provide recreational equipment and 

act as guides and escorts to visitors of federal recreational lands. 

The permits would usually cover 10 years and would be renewable 

for companies that receive satisfactory performance evaluations. 

The bill also would provide guidelines for setting fees to be charged 

to outfitters. 

Based on information provided by the four affected agencies, 

CBO estimates that the bill would have little if any effect on offsetting receipts from outfitter activities. All four agencies already 

charge fees to outfitters and have authority to spend at least some 

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of the amounts they collect. The bill would not change the way that 

the agencies establish such fees or the way they are spent. Currently, offseting receipts collected from outfitters by the four agencies total around $5 million annually. 

The CBO staff contact for this estimate is Deborah Reis. The estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

COMPLIANCE WITH PUBLIC LAW 104–4

This bill contains no unfunded mandates. 

PREEMPTION OF STATE, LOCAL, OR TRIBAL LAW

This bill is not intended to preempt any State, local, or tribal 

law. 

CHANGES IN EXISTING LAW

If enacted, this bill would make no changes in existing law. 

COMMITTEE CORRESPONDENCE

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON RESOURCES, 

Washington, DC, October 11, 2002. 

Hon. LARRY COMBEST, 

Chairman, Committee on Agriculture, 

Longworth House Office Building, Washington, DC. 

DEAR MR. CHAIRMAN: On September 12, 2002, the Committee on 

Resources ordered favorably reported H.R. 2386, the Outfitter Policy Act of 2001. This bill was referred primarily to the Committee 

on Resources and additionally to the Committee on Agriculture. Because of the short time remaining before 107th Congress adjourns, 

I ask you to not insist on exercising your referral of the bill and 

allow the Committee on Agriculture to be discharged from further 

consideration of H.R. 2386. 

I agree that your decision to forego further action on the bill will 

not prejudice the Committee on Agriculture with respect to its jurisdictional prerogatives on this or similar legislation, and will support your request for conferees on those provisions within the Committee on Agriculture’s jurisdiction should they be the subject of a 

House-Senate conference. Copies of our correspondence will be 

made part of the committee bill report to memorialize our understanding. 

Thank you very much for your cooperation and that of your Chief 

Counsel, Lance Kotschwar. 

Sincerely, 

JAMES V. HANSEN, 

Chairman. 

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HOUSE OF REPRESENTATIVES, COMMITTEE ON AGRICULTURE, Washington, DC, October 15, 2002. 

Hon. JAMES V. HANSEN, 

Chairman, Committee on Resources, 

Longworth House Office Building, Washington, DC. 

DEAR MR. CHAIRMAN: Thank you for forwarding a draft copy of 

H.R. 2386, the Outfitter Policy Act of 2001, as ordered reported by 

your Committee on September 12, 2002. 

Under clause 1(a) of Rule X, the Committee on Agriculture has 

jurisdiction over bills relating to forestry in general and forest reserves other than those created from the public domain. In exercising this jurisdiction. The Committee on Agriculture has worked 

cooperatively in the past with your Committee regarding general 

matters relating to forestry. 

Aware of your interest in expediting this legislation, and after 

conferring with Chairman Goodlatte of the Subcommittee on Department Operations, Oversight, Nutrition, and Forestry, I will be 

glad to waive further consideration of this measure so as to allow 

its timely consideration by the entire House of Representatives 

during the remainder of the 107th Congress. 

This action is not intended to waive this Committee’s jurisdiction 

over this matter for all purposes, and in the event a conference 

with the Senate is requested, I would appreciate your support in 

the naming of members from the Committee on Agriculture to the 

conference committee. 

Thank you once again for the extraordinary cooperation this Congress in which our respective Committees have worked together 

and I look forward to working with you in the future on matters 

of shared jurisdiction. 

Sincerely, 

LARRY COMBEST, 

Chairman.

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