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[Senate Report 106-491]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 940
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-491

======================================================================

 
                      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.

                                
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