II

104TH CONGRESS

2D SESSION S. 2194

To provide the public with access to quality outfitter and guide services

on Federal lands and for other purposes.

IN THE SENATE OF THE UNITED STATES

OCTOBER 3, 1996

Mr. CRAIG introduced the following bill; which was read twice and referred

to the Committee on Energy and Natural Resources

A BILL

To provide the public with access to quality outfitter and

guide services on Federal lands and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Outfitter and Guide Policy Act of 1996.’’

6 (b) TABLE OF CONTENTS.—The table of contents of

7 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings.

Sec. 3. Purpose.

Sec. 4. Definitions.

Sec. 5. Outfitter and guide authorizations.

Sec. 6. Fees charged by the United States for authorizations.

Sec. 7. Indemnification and acknowledgment of inherent risk.
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Sec. 8. Annual operating plan.

Sec. 9. Assignment and management of allocation of use to the outfitted public.

Sec. 10. Performance evaluation.

Sec. 11. Requirements for renewal or termination of agreements.

Sec. 12. Transferability of agreements.

Sec. 13. Dispute resolution.

Sec. 14. Rules of construction.

Sec. 15. Regulations.

Sec. 16. Savings Clause.

Sec. 17. Authorization of appropriations.

1 SEC. 2. FINDINGS.

2 Congress finds that—

3 (1) the experience, skills, equipment and

4 trained staff provided by outfitters and guides are

5 necessary in meeting the need to assure the public

6 of a means of access to recreational and educational

7 opportunities on Federal lands;

8 (2) an effective commitment to use and enjoy9 ment of the Federal lands by the outfitted public re10 quires implementation of agency programs to pro11 vide for—

12 (A) the health and welfare of the outfitted

13 public in their enjoyment of recreational and

14 educational opportunities;

15 (B) recognition that access to Federal

16 lands by that segment of the public which uti17 lizes the services of outfitters and guides can

18 only be assured by an equitable share of the

19 type, number and amount of use determined to
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1 be suitable for the area through resource man2 agement planning;

3 (C) protection of the resource values which

4 support these activities;

5 (D) an effective means of evaluating the

6 performance of outfitters and guides to assure

7 the public of continued availability of quality

8 visitor services; and

9 (E) fair return to the Government through

10 fees and greater efficiency in management.

11 (3) a more effective relationship between the

12 land management agencies and those offering outfit13 ter and guide services requires implementation of

14 agency programs to provide—

15 (A) encouragement to skilled, experienced,

16 career-oriented persons from the private sector

17 to invest in high quality visitor services which

18 are available to the general public;

19 (B) a stable business climate in which gov20 ernment managers receive training appropriate

21 to the administration of this Act;

22 (C) a reasonable opportunity for profes23 sional outfitters and guides to earn a profit and

24 the incentive to reinvest in order to increase the
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1 quality and scope of services available to the

2 outfitted public;

3 (D) renewal of authorizations based on a

4 performance evaluation system that rewards

5 quality operators and eliminates those who fail

6 to meet such standards; and

7 (E) recognition of the outfitter and guide

8 investment as a family business which might be

9 sold, inherited, or otherwise assigned, provided

10 that the outfitted public is assured of continuity

11 in the quality of visitor services.

12 SEC. 3. PURPOSE.

13 (a) The purpose of this Act is to codify the standards,

14 customs, and practices of outfitters and guides operating

15 on Federal lands whose services are necessary to assure

16 the outfitted public an opportunity to renew their heritage

17 through safe and enjoyable backcountry education and ad18 venture.

19 (b) Rules and regulations promulgated under the au20 thority of this Act should be consistent among the various

21 agencies to the extent practicable in order to increase effi22 ciency of the Federal Government, simplify requirements

23 for those authorized to provide services, and provide the

24 public with consistent quality in visitor services.
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1 SEC. 4. DEFINITIONS.

2 In this Act:

3 (1) The term ‘‘outfitter’’ means a person or

4 other entity which provides services to the general

5 public on Federal lands pursuant to the terms and

6 conditions of an outfitter and guide authorization.

7 The term ‘‘outfitter’’ includes any holder of an au8 thorization who by local custom or tradition is

9 known as a ‘‘guide.’’

10 (2) The term ‘‘outfitter services’’ means those

11 services provided to the public in an outdoor envi12 ronment that rely upon the recreational, natural,

13 historical, or cultural resources of Federal lands

14 which include, but are not limited to; outfitting,

15 guiding, education, interpretation, skills training,

16 packing, transportation, subsistence, assistance, and

17 other activities traditionally or historically provided

18 by outfitters and guides. Examples of outfitter serv19 ices governed by this Act include, but are not limited

20 to; tours or trips conducted on foot, by raft, canoe,

21 kayak, cataraft, other inflatable or motorized boat or

22 water craft, horse, mule, llama, or other pack ani23 mal, hot air balloon, bicycle, skis, snowshoes, jeep,

24 motorcycle, snowmobile, all terrain vehicle or other

25 conveyance and include a variety of outdoors sports

26 and activities such as fishing, hunting, hiking, rock
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1 climbing, ice climbing, mountaineering, skiing (ex2 cept when conducted on Federal lands under a per3 mit issued pursuant to the National Forest Ski Area

4 Permit Act of 1986, 16 U.S.C. 497b), camping,

5 boating, whitewater rafting, trail rides, environ6 mental education programs, skills training programs

7 and certain livery services.

8 (3) The term ‘‘outfitted public’’ means that seg9 ment of the public that relies upon outfitter and

10 guide services for access, use, and enjoyment of the

11 natural, cultural and historical resources on Federal

12 lands.

13 (4) The term ‘‘livery services’’ means a person

14 or other entity which provides a service in dropping

15 off or picking up supplies or equipment, or conveys

16 the outfitted public to or from points of access to

17 Federal resource areas.

18 (5) The term ‘‘outfitter and guide authoriza19 tion’’ means an outfitter and guide agreement or an

20 outfitter and guide license, as applicable.

21 (6) The term ‘‘outfitter and guide agreement’’

22 means a written contract between the agency head

23 and an outfitter which sets forth terms, conditions

24 and an allocation of use under which the outfitter is

25 authorized to provide visitor services.
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1 (7) The term ‘‘outfitter and guide business per2 mit’’ means a non-competitive authorization by the

3 agency head and an outfitter which sets forth the

4 terms, conditions and a temporary allocation of use

5 under which the outfitter may provide visitor serv6 ices on a limited basis.

7 (8) The term ‘‘holder’’ means any outfitter

8 whose authorization to provide facilities or services

9 is currently in effect.

10 (9) The term ‘‘agency head’’ means—

11 (A) the Director or a designee with respect

12 to the National Park Service, the United States

13 Fish and Wildlife Service, and the Bureau of

14 Land Management; and

15 (B) the Chief or a designee with respect to

16 the Forest Service; and

17 (C) the Commissioner or a designee with

18 respect to the Bureau of Reclamation.

19 (10) The term ‘‘Federal lands’’ for purposes of

20 this Act means all lands, and associated resources

21 therein administered by an agency of the Federal

22 Government or its designee, except lands held in

23 trust by the United States for the benefit of any In24 dian tribe or individual or held by any Indian tribe
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1 or individual subject to a restriction by the United

2 States against alienation.

3 (11) The term ‘‘resource area’’ means any plan4 ning unit which is described by, or contained within,

5 the boundaries of a unit of the National Park Sys6 tem, a National Forest, wildlife refuge, or similar

7 Federal land management unit which describes or

8 contains outfitters offering same or similar services

9 to the public, including those instances in which the

10 area in which such directly competitive services

11 occur may be administered by more than one Fed12 eral agency.

13 (12) The term ‘‘allocation of use’’ means a

14 commitment to provide access to Federal lands for

15 the outfitted public through the assignment to out16 fitters and guides of user days (or similar time fac17 tors which may apply), launch dates, reserved or as18 signed campsites, or other considerations provided in

19 an outfitter and guide authorization, approved an20 nual operating plan, or other agreement.

21 (13) The term ‘‘principal use’’ means an agency

22 commitment to an outfitter operating under the au23 thority of an outfitter and guide agreement for a

24 specific annual allocation of use over the length of

25 the term of the contract and any subsequent renewal
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1 of such authorization, except as otherwise provided

2 by this Act.

3 (14) The term ‘‘temporary use’’ means an

4 agency commitment to an outfitter operating under

5 the authority of an outfitter and guide authorization

6 for an allocation of use for a period not to exceed

7 two years.

8 (15) The term ‘‘traditional, historical or estab9 lished use’’ means methods of transport, lodging,

10 recreation or educational activities, including facili11 ties or structures, which reflect earlier eras of Amer12 ican exploration, technology and cultural evolution

13 and were incorporated prior to enactment of this Act

14 into outfitter and guide services with adaptations, as

15 feasible, to insure health, safety, resource protection

16 and humane treatment of stock in continuing to pro17 vide such experiences to the outfitted public.

18 (16) The term ‘‘temporary structure’’ means

19 corral, hitchrack, springbox, non-permanent tent

20 frame or pad, fire ring, or other structure which lack

21 footings and foundations made from modern con22 struction materials such as concrete or cement; is

23 capable of removal from the resource area at the end

24 of the term of authorization; and is utilized to sup25 port traditional means of access, as limited pack-
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1 stock management structures, or for the humane

2 treatment of animals, or for human shelter or sub3 sistence.

4 (17) The term ‘‘assigned camp’’ means a camp5 site authorized to be reserved for utilization by the

6 outfitted public during the holder’s season or period

7 of operation.

8 (18) The term ‘‘user day’’ means a day, or any

9 part of a day, in which a member of the outfitted

10 public utilizes outfitter and guide facilities or serv11 ices on Federal lands.

12 (19) The term ‘‘adjusted gross receipts’’ means

13 the results of a calculation in which revenue from

14 goods or services provided to the outfitted public on

15 non-Federal lands, fees conveyed to units of Govern16 ment for hunting or fishing licenses or for entrance

17 or recreation fees, sources other than outfitter activi18 ties, or such other exclusions as the agency head

19 might apply, are deducted from the gross receipts of

20 the holder of an outfitter and guide authorization

21 and revenue additions are added to the total of gross

22 receipts.

23 (20) The term ‘‘revenue additions’’ means the

24 market value of goods and services that are donated

25 or bartered in exchange for goods and services re-
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1 ceived that are directly related to an outfitted or

2 guided trip.

3 (21) The term ‘‘Consumer Price Index’’

4 means—

5 (A) the Consumer Price Index-All Urban

6 Consumers published by the Bureau of Labor

7 Statistics of the Department of Labor; and

8 (B) from and after such time as such

9 index is no longer published, the consumer price

10 index or other regularly published cost-of-living

11 index chosen by the agency head which reason12 ably approximates the Consumer Price Index

13 specified in subparagraph (A).

14 SEC. 5. OUTFITTER AND GUIDE AUTHORIZATIONS.

15 (a) REQUIREMENT FOR AUTHORIZATION.—A person

16 or other entity who offers to provide or conduct outfitter

17 and guide services for a fee on Federal lands shall be re18 quired to obtain authorization under the authority of this

19 Act.

20 (b) LAW APPLICABLE TO AUTHORIZATIONS.—The

21 terms and conditions of outfitter and guide authorizations

22 shall henceforth be governed by this Act.

23 (c) CRITERIA FOR ISSUANCE OF AUTHORIZATION.—

24 The terms and conditions of an outfitter and guide author25 ization shall specify the rights and obligations of both the
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1 holder and the agency and be administered to satisfy,

2 without limitation, criteria which—

3 (1) identify skilled, experienced and financially

4 capable persons or other entities to offer and con5 duct outfitters services in a manner to provide high

6 quality visitor services, promote the health and wel7 fare of the outfitted public, and protect the natural,

8 historical and cultural resources in areas where

9 these activities occur;

10 (2) acknowledge the traditional role of outfit11 ters and guides in providing the experience, skills

12 and equipment utilized by the outfitted public for

13 their use and enjoyment of recreational and edu14 cational opportunities on Federal lands;

15 (3) recognize the importance of the private sec16 tor in providing a quality visitor experience on Fed17 eral lands by encouraging outfitter and guide invest18 ments in facilities, services, equipment and employee

19 training; and

20 (4) encourage competitive opportunities in the

21 award of authorization for new outfitter opportuni22 ties.

23 (d) NATURE AND TYPES OF AUTHORIZATIONS.—The

24 agency head may enter into outfitter and guide authoriza25 tions as follows:
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1 (1) OUTFITTER AND GUIDE AGREEMENT.—The

2 agency head is authorized to enter into a written

3 contract to be known as an outfitter and guide

4 agreement for the use and occupancy of Federal

5 lands for the purposes of providing facilities or serv6 ices to the outfitted public. Such contract shall pro7 vide for—

8 (A) a standard 10-year term for an outfit9 ter and guide agreement. The agency head shall

10 issue an agreement for longer than 10 years if

11 the agency head determines that a longer term

12 is in the public interest or necessary due to the

13 extent of investment required to meet the obli14 gations assumed. The term for an agreement

15 may not exceed 20 years;

16 (B) a specified allocation of principal use

17 which shall be assigned to the holder through

18 the term of the agreement subject to section 9

19 of this Act and, if appropriate, an allocation of

20 temporary use;

21 (C) authorization of traditional, historical

22 or established use, including temporary struc23 tures and assigned camps, as defined by this

24 Act notwithstanding other provisions of law;
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1 (D) renewal of the agreement upon a find2 ing of good performance during the overall term

3 of the permit (including any extensions thereof)

4 subject to the conditions set forth in section 11

5 of this Act;

6 (E) reasonable modification or amendment

7 to the terms and conditions of the agreement

8 with the consent of the holder: Provided, That

9 such modification or amendment during the

10 term of existing agreement—

11 (i) shall be undertaken with reason12 able advance notice of any new require13 ment for capital expenditures arising dur14 ing the term of the authorization which

15 could be expected to affect pricing, adver16 tising or service;

17 (ii) may be utilized to allow the holder

18 to provide new services closely related to

19 those authorized if the agency head deter20 mines that such services would contribute

21 toward the use and enjoyment of Federal

22 lands by the outfitted public; and

23 (iii) shall not constitute the issuance

24 of a new permit or adversely impact other
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1 rights and obligations that exist in such

2 agreement;

3 (F) approval of an outfitter’s rates and

4 charges to the public in those instances where

5 the agency head determines that sufficient com6 petition for services does not exist within, or in

7 reasonable proximity to, the resource area in

8 which the outfitter operates. In such instances

9 in which sufficient competition does not exist—

10 (i) the outfitter and guide agreement

11 shall state that the reasonableness of the

12 outfitter’s rates and charges to the public

13 may be reviewed and approved by the

14 agency head, utilizing a comparison with

15 those rates and charges for facilities and

16 services of comparable character under

17 similar conditions, with due consideration

18 for length of season, seasonal variations,

19 average percentage of trip bookings, acces20 sibility, availability and costs of labor and

21 materials, type of patronage, and other

22 factors deemed significant by the agency

23 head;

24 (ii) such review shall be completed

25 within 60 days of receipt of all necessary
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1 information, or the requirement for the

2 agency head’s approval shall be waived and

3 such rates and charges as proposed by the

4 outfitter considered to be approved for im5 mediate use; and

6 (G) temporary extensions of an agreement

7 for up to two years to avoid interruption of

8 services to the public.

9 (2) OUTFITTER AND GUIDE BUSINESS LI10 CENSE.—The agency head is authorized to issue a

11 noncompetitive outfitter and guide business license

12 to a person or other entity qualified to provide visi13 tor services on a limited basis at a resource area. In

14 establishing criteria for such authorizations the

15 agency head shall determine that—

16 (A) the term for an outfitter and guide

17 business shall not exceed two years;

18 (B) such license is not renewable, but may

19 be reissued at the discretion of the agency head;

20 (C) the assignment of temporary use for

21 such licenses may be made from whatever unas22 signed allocation of use for outfitters and

23 guides is available, or from other authority for

24 use and occupancy as the agency head deems to

25 be appropriate;
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1 (D) a license may be issued only when the

2 type and amount of activity is not inconsistent

3 with resource management goals for the area;

4 (E) such authorization shall not provide

5 for the construction of any structure, fixture, or

6 improvement on Federal lands, except tem7 porary structures as defined by this Act;

8 (F) appropriate steps be taken to limit the

9 liability of the United States arising from the

10 provision of visitor services or other activities;

11 (G) service activities conducted shall be

12 monitored to determine whether issuance of an

13 outfitter and guide agreement would be a more

14 appropriate authorization; and

15 (H) a person or other entity seeking or ob16 taining such license shall not be precluded from

17 also submitting a proposal for an outfitter and

18 guide agreement.

19 (e) ISSUANCE OF AN OUTFITTER AND GUIDE AGREE20 MENT.—

21 (1) Outfitter and guide agreements may be is22 sued when one or more of the following occurs—

23 (A) an increased allocation, capacity, or

24 public demand is identified through the re25 source planning process;
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1 (B) an existing permit is terminated under

2 conditions described in section 11;

3 (C) a reduction in assignment of principal

4 use as provided in section 9(d) makes additional

5 service days available;

6 (D) competitive interest in a resource area

7 or activity arises where no previously authorized

8 services exist and where the proposed use is not

9 inconsistent with objectives in resource manage10 ment plans; or

11 (E) an application has been submitted to

12 provide outfitter and guide services for an area

13 or activity for which there is no competitive in14 terest.

15 (2) In situations fitting the criteria described in

16 paragraphs (1) (A) through (D) the agency head—

17 (A) may solicit applicants by issuing a pro18 spectus and contacting all parties who have ex19 pressed an interest;

20 (B) shall determine the most qualified ap21 plicant(s) by considering past experience and

22 knowledge of the area, financial capability, eco23 nomic viability of existing holders, performance

24 record, and other factors: Provided, That con25 sideration of revenue to the United States shall
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1 be subordinate to the objectives of protecting

2 natural resources and providing quality service

3 to the outfitted public in the selection of such

4 applicant; and

5 (C) shall establish fee requirements as

6 specified by section 6 of this Act.

7 (3) The agency head is not precluded from

8 awarding a noncompetitive authorization to an appli9 cant who meets the criteria established.

10 (4) The agency head may issue a temporary au11 thority to provide outfitter services for a term not to

12 exceed two years in order to avoid interruption of

13 services to the outfitted public. Prior to making such

14 a determination the agency head shall take all rea15 sonable and appropriate steps to consider pending

16 applications for outfitter and guide authorizations.

17 (f) LANDS UNDER MULTIPLE JURISDICTIONS.—In

18 order to reduce administrative costs, the agency heads

19 concerned may designate a lead agency for the authoriza20 tion and management of a single operation on Federal

21 lands under the jurisdiction of more than one agency. The

22 agency so designated shall issue a single outfitter and

23 guide authorization and collect a single fee under para24 graphs (1) and (2). Such authorization shall provide for
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1 use in a manner consistent with the plans and policies for

2 each agency.

3 (g) PROVISION FOR ADDITIONAL RELATED SERV4 ICES.—The agency head may modify an outfitter and

5 guide agreement to allow the holder to provide services

6 closely related to such agreement if the agency head deter7 mines that such changes would enhance the health and

8 welfare or enjoyment of visitors.

9 SEC. 6. FEES CHARGED BY THE UNITED STATES FOR AU10 THORIZATIONS.

11 (a) IN GENERAL.—The agency head shall require

12 payment of a reasonable fee for the opportunity of provid13 ing outfitter and guide services pursuant to this Act which

14 may include the following:

15 (1) An annual basis for cash payment, which

16 shall include a reasonable schedule of deposits

17 through the operating season; and

18 (2) Fees for rental or lease of Government19 owned facilities occupied by the outfitter, as appro20 priate.

21 (b) ESTABLISHMENT OF AMOUNT.—

22 (1) The agency head shall establish an amount

23 applicable to an outfitter and guide which—

24 (A) reflects the value of the opportunity to

25 conduct outfitter services on Federal lands.
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1 Such fee may be expressed as a flat fee or, if

2 calculated as a percentage of revenue, shall be

3 determined based on adjusted gross receipts;

4 and

5 (B) takes into account other economic con6 ditions within the area in which such services

7 are to be provided in order to provide a reason8 able opportunity for the financial viability of

9 outfitter services at that location.

10 (2) The agency head shall establish an amount

11 applicable to outfitter and guide business licenses

12 sufficient to recover the cost of administering such

13 authorizations.

14 (c) SUBSTANTIALLY SIMILAR SERVICES IN A SPE15 CIFIC GEOGRAPHIC AREA.—If multiple outfitter and guide

16 agreements are awarded to provide the same or similar

17 outfitter services at the same approximate location or

18 within a resource area, the agency head shall establish an

19 identical fee for all such contracts, subject to periodic re20 view and revision by the agency head.

21 (d) ADJUSTMENT OF FEES.—

22 (1) IN GENERAL.—The amount of any fee for

23 the term of an outfitter and guide agreement shall

24 be set at the beginning of the outfitter and guide au-
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1 thorization and may only be modified if stated in the

2 contract—

3 (A) on the basis of inflation (as measured

4 by changes in the Consumer Price Index), when

5 the annual payment is not determined by a per6 centage of adjusted gross receipts,

7 (B) to reflect material adverse changes

8 from the conditions specified in the agreement,

9 or

10 (C) in the event of an unforeseen disaster.

11 (2) The fee for an outfitter and guide license

12 may not be changed over the term of the license.

13 SEC. 7. INDEMNIFICATION AND ACKNOWLEDGMENT OF IN14 HERENT RISK.

15 The agency head shall take appropriate steps to pro16 vide that the holder will defend or indemnify the United

17 States for costs or expenses associated with injury, dam18 age or death to person or property resulting from holder’s

19 negligence, gross negligence, or willful and wanton dis20 regard for persons or property arising directly out of hold21 er’s provision of outfitter services under the outfitter and

22 guide authorization: Provided, That the holder—

23 (1) shall have no responsibility to indemnify the

24 United States, its agents, employees or contractors,

25 for costs or expenses associated with injury, damage
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1 or death to person or property resulting from the

2 acts, omissions, negligence, gross negligence or will3 ful or wanton misconduct of third parties, or the

4 United States, its agents, employees or contractors;

5 and

6 (2) shall not incur any liability of any kind or

7 nature, to the United States, its agents, employees

8 or contractors, or third parties, as a result of the is9 suance of the outfitter and guide authorization or as

10 a result of the provision of outfitter services under

11 the outfitter and guide authorization absent a find12 ing by a court of competent jurisdiction of holder’s

13 negligence, gross negligence, or willful and wanton

14 disregard for persons or property; and in no event

15 will the holder incur strict liability to the United

16 States, its agents, employees or contractors, or third

17 parties; and

18 (3) shall have no responsibility to indemnify the

19 United States, its agents, employees or contractors,

20 for costs or expenses associated with injury, damage

21 or death to person or property resulting from the

22 inherent risks of holder’s outfitter services under the

23 outfitter and guide authorization, or, the inherent

24 risks present on Federal lands; and
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1 (4) shall be allowed to enter into release, waiv2 er, indemnification, or acknowledgment or allocation

3 of risk agreements with the outfitted public.

4 SEC. 8. ANNUAL OPERATING PLAN.

5 (a) Prior to the first day in which operations are con6 ducted under the authority of an outfitter and guide

7 agreement the holder must file an annual operating plan

8 with the agency head that includes—

9 (1) the names and mailing addresses of holder

10 and its agents, along with a statement of ownership

11 and authorization under which the outfitter serves

12 are to be provided;

13 (2) a map, sketch or description providing in14 formation sufficient to locate the authorized area of

15 outfitter services on the ground, existing and pro16 posed roads, if any, or access routes to be used in

17 connection with the services provided, assigned

18 camps (if any), and the approximate location where

19 land, water or other resources will be utilized;

20 (3) information describing the nature of outfit21 ter services to be provided and how they will be con22 ducted, the period during which they will take place,

23 and measures to be taken for the protection of natu24 ral, historical, and cultural resources within the re25 source area; and
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1 (4) a statement of mutual agreement outlining

2 the objective and attainable measurements of outfit3 ter and agency performance to be evaluated not less

4 than once during, or at the conclusion of, the oper5 ating season.

6 (b) The holder shall be responsible for updating the

7 annual operating plan as necessary or when required to

8 do so by the agency.

9 (c) The agency head shall review and approve an an10 nual operating plan based on criteria which are consistent

11 with the requirements of this Act and other law or regula12 tion which shall apply, including any additional criteria

13 mutually agreed upon by the authorizing officer and the

14 holder.

15 SEC. 9. ASSIGNMENT AND MANAGEMENT OF ALLOCATION

16 OF USE TO THE OUTFITTED PUBLIC.

17 (a) QUALIFIED HOLDERS.—The agency head shall

18 assign an allocation of use to the holder of an outfitter

19 and guide authorization whose services are marketed and

20 available to the public, as provided herein.

21 (b) ASSIGNMENT OF PRINCIPLE USE.—

22 (1) The agency head shall assign an amount of

23 principal use to be utilized annually through the

24 term of an outfitter and guide agreement, which

25 may be defined in terms of user days, the season,
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1 months, weeks, days, people-at-one-time, or like fac2 tors which may be appropriate considering, without

3 limitation, the nature of the outfitter service, the

4 amount of use required to sustain an economically

5 viable operation, the nature and limitations of the

6 resource area within which the service is to be au7 thorized, the various modes of transportation to be

8 used in the provision of the service, assigned camps,

9 and other appropriate factors.

10 (2) Where recreation use levels are planned and

11 managed in terms of launches and people per

12 launch, camps and people per camp, or trips and

13 people per trip, the agency head shall establish the

14 amount of principal use in terms of user days, but

15 also specify, as appropriate, numbers of launches,

16 campsites, or trips associated with such user days.

17 (3) The agency head shall review and approve

18 the terms and conditions related to utilization of the

19 amount of principal use assigned as a factor in the

20 consideration of a holder’s annual operating plans:

21 Provided, That in the course of that review no re22 duction in the amount of principal use assigned to

23 the holder may be made except as provided in (c) or

24 (d).
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1 (4) Under normal circumstances, the agency

2 head shall base the amount of principal use in the

3 renewal, extension or transfer of an agreement on

4 the amount of recurring annual use previously as5 signed, except as provided in (d).

6 (5) Assignment of principal use shall have no

7 effect on type or amount of use by the non-outfitted

8 public.

9 (c) SEASONAL DEVIATION FROM ASSIGNED AMOUNT

10 OF PRINCIPAL USE.—The agency head shall have the au11 thority to—

12 (1) waive a holder’s obligation to use all or part

13 of the assigned amount of principal use when such

14 request from the holder is timely to allow reassign15 ment of the unused allocation to other holders: Pro16 vided, That such waiver shall not be permanently de17 ducted from the original allocation assigned to the

18 holder except by mutual consent of the holder and

19 the agency;

20 (2) create a pool of available, unassigned user

21 days, including any portion of allocation waived by

22 or withdrawn from use a holder, which may be dis23 tributed at the discretion of the agency head to hold24 ers authorized to provide services in the resource

25 area.
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1 (d) ADJUSTMENTS IN ASSIGNMENT OF PRINCIPAL

2 USE.—

3 (1) In renewing an outfitter and guide agree4 ment, the amount of principal use currently assigned

5 may be reduced at the discretion of the agency head

6 if the holder has failed in more than 50 percent of

7 the term of the current contract to utilize 70 percent

8 or more of assigned principal use; or

9 (2) In exercising such discretion to determine a

10 possible reduction in the amount of principal use in

11 the renewal of an outfitter and guide agreement to

12 provide services described in section 6(c), the agency

13 head shall calculate whether a holder failed in some

14 more than 50 percent of the term of the holder’s

15 current contract to utilize 70 percent or more of the

16 average amount of allocation used by all holders in

17 the same approximate location; and

18 (3) In determining a reduction in the amount

19 of principal use to be assigned in the renewal of an

20 agreement, the agency head shall—

21 (A) normally assign an amount consistent

22 with the amount of principal and temporary use

23 the holder effectively utilizes through the term

24 of the current authorization;
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S 2194 IS

1 (B) not make any reduction related to fac2 tors beyond the holder’s control, such as gen3 eral market and other economic fluctuations,

4 availability of state hunting licenses, and natu5 ral phenomena, such as weather, which may

6 have adversely affected the ability of the holder

7 to make full use of the allocation assigned; and

8 (C) not make any reduction related to an

9 amount of the assigned use withheld from use

10 by agency action.

11 (4) The agency head shall provide the holder

12 with documentation of the basis for any adjustment

13 in the assigned amount of principal use, including

14 new terms and conditions which result from such

15 change.

16 (e) ASSIGNMENT OF TEMPORARY USE.—

17 (1) Temporary use may be assigned at the dis18 cretion of the agency head for a period not to exceed

19 two years.

20 (2) Temporary use assigned and effectively uti21 lized for two years by the holder may be converted

22 at the discretion of the agency head to an allocation

23 of principal use and assigned to such holder accord24 ingly.
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S 2194 IS

1 SEC. 10. PERFORMANCE EVALUATION.

2 (a) OBJECTIVES.—The agency head shall utilize the

3 following objectives to develop a program for evaluation

4 of visitor provided in resource areas under the jurisdiction

5 of the agency head—

6 (1) delivery of quality visitor service to the out7 fitted public;

8 (2) protection of natural, historical and cultural

9 resources;

10 (3) responsible financial performance, including

11 payment of fees; and

12 (4) compliance with the outfitter and guide

13 agreement, annual operating plans and pertinent

14 laws and regulations.

15 (b) EVALUATION CRITERIA.—

16 (1) Specific criteria to be utilized by the agency

17 head to evaluate the holder’s performance in meeting

18 these objectives shall be objective, measurable and

19 attainable, including—

20 (A) standards generally applicable to all

21 visitor service operations;

22 (B) standards specific to an individual

23 sport or activity; and

24 (C) such other terms and conditions of an

25 agreement or annual operating plan as are
31

S 2194 IS

1 agreed upon by the agency head and the holder

2 as measurements of performance.

3 (2) In awarding points for the fulfillment of

4 such criteria, the agency head shall—

5 (A) not place undue weight on matters of

6 limited importance; and

7 (B) allow points to be earned for elements

8 of service which exceed the requirements of the

9 agreement.

10 (3) In evaluating the holder’s performance the

11 agency head shall appropriately account for factors

12 beyond the control of the outfitter including, without

13 limitation, agency actions, general market or other

14 economic fluctuations, or weather or other natural

15 phenomena which resulted in actions or conditions

16 that might otherwise adversely affect the holder’s

17 annual performance rating.

18 (c) LEVELS OF PERFORMANCE.—The agency head

19 shall define three levels of performance—

20 (1) good, which means a level of performance

21 which fulfills the terms and conditions of the outfit22 ter and guide and guide agreement and annual oper23 ating plans;
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S 2194 IS

1 (2) marginal, which means a level of perform2 ance which, if not corrected, will result in an unsat3 isfactory rating; or

4 (3) unsatisfactory, which means a level of per5 formance that fails to satisfy the requirements of the

6 holder’s outfitter and guide agreement.

7 (d) ANNUAL PERFORMANCE EVALUATION.—

8 (1) Performance evaluation shall occur not less

9 than once a year and normally include on-site in10 spection of facilities or operations.

11 (2) The holder shall be entitled to—

12 (A) be present, or represented, at such in13 spection;

14 (B) written notice of any conduct or condi15 tion which, if not corrected, might lead to a

16 performance rating of unsatisfactory. Such no17 tice of marginal performance shall provide an

18 explanation of needed corrections and a reason19 able period of time in which such corrections

20 may be made without penalty; and

21 (C) written notification of an annual per22 formance rating which is the result of all eval23 uations conducted and such corrections as may

24 have been acquired.
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S 2194 IS

1 (e) AGGREGATION OF RESULTS.—The results of all

2 annual performance ratings of a holder shall be aggre3 gated following determination of the annual rating in the

4 final year of the term of the outfitter and guide agreement

5 to determine whether the holder’s overall performance

6 during such term has been good, marginal or unsatisfac7 tory.

8 SEC. 11. REQUIREMENTS FOR RENEWAL OR TERMINATION

9 OF AUTHORIZATION.

10 (a) RENEWAL AT EXPIRATION OF TERM.—Upon a

11 finding of good overall performance during the term of an

12 agreement the agency head shall renew such authorization

13 at the request of the holder for an appropriate term sub14 ject to the terms and conditions of this Act.

15 (b) TERMINATION AT EXPIRATION OF TERM.—

16 (1) Renewal of an agreement may be denied

17 upon a finding of marginal overall performance by

18 the holder during the term of such authorization.

19 (2) Renewal of an agreement shall be denied

20 upon a finding of unsatisfactory overall performance

21 by the holder during the term of such authorization.

22 (c) TERMINATION FOR CAUSE.—

23 (1) An agreement may be terminated for case

24 prior to the expiration of the term of such authoriza25 tion when the holder fails to correct conduct or con-
34

S 2194 IS

1 ditions brought to such holder’s attention under pro2 cedures described in section 10(d)(2)(B) and which

3 are deemed by the agency head to be of significant

4 importance with respect to the quality of services of5 fered, the health and welfare of the outfitted public

6 or the protection of resource values.

7 (2) An agreement or license may be terminated

8 prior to the expiration of the term of such authoriza9 tion when the holder fails to pay fees.

10 (3) Immediate termination of an agreement or

11 license may occur upon the finding of the agency

12 head that the holder’s operation threatens the health

13 or welfare of the outfitted public or other users.

14 SEC. 12. TRANSFERABILITY OF AGREEMENTS.

15 (a) TRANSFERABILITY.—An outfitter and guide

16 agreement is transferable or assignable only with the ap17 proval of the agency head, which approval may not be un18 reasonably withheld or delayed. Normally, such authoriza19 tion shall be transferred, assigned, or otherwise conveyed

20 by the agency head to—

21 (1) the purchaser of a company, or a portion of

22 a company’s services or facilities, who satisfies the

23 criteria established in section 5.(c)(1) of this Act; or
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S 2194 IS

1 (2) the heirs, partner or corporate stockholders

2 of a holder who is deceased or who requests such ac3 tion.

4 (b) APPROVAL.—In approving a transfer, assign5 ment, or conveyance of an outfitter and guide agreement

6 to a qualified purchaser, the agency head shall—

7 (1) allow for recovery of the current holder’s in8 vestment in the business; and

9 (2) allow a purchase price based on the value

10 of the business as a going concern.

11 (c) NO MODIFICATION OF TERMS AND CONDI12 TIONS.—The terms and conditions of the agreement shall

13 not be subject to modification by reason of any transfer

14 or assignment under this section.

15 (d) CONSIDERATION PERIOD.—If the agency head

16 fails to approve or disapprove a transfer or assignment

17 under paragraph (a) within 90 days of receipt of an appli18 cation containing the information required with respect to

19 such transfer, the transfer or assignment shall be deemed

20 to have been approved.

21 (e) DEFAULT.—In the event a transfer, assignment

22 or conveyance is not approved by the agency head or is

23 subsequently defaulted, the authorization of the original

24 holder shall be fully restored or shall be renewed subject

25 to the provisions of section 11 (a) or (b).
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S 2194 IS

1 SEC. 13. DISPUTE RESOLUTION.

2 (a) BOARD OF LAND APPEALS.—

3 (1) The Interior Board of Land Appeals shall

4 adjudicate disputes between agencies of the United

5 States Department of the Interior and outfitters and

6 guides arising under this Act.

7 (2) Disputes arising between the Forest Service

8 and outfitters and guides shall be adjudicated under

9 applicable law.

10 (b) ADMINISTRATIVE REVIEW.—

11 (1) Appeals of decisions by agencies of the

12 United States Department of the Interior may be

13 taken to the Interior Board of Land Appeals after

14 one level of review of decisions made within the

15 agency.

16 (2) Appeals of decisions made by the Forest

17 Service shall be reviewed subject to applicable law.

18 (c) EXPEDITED PROCEDURE.—Appeals of decisions

19 to suspend, revoke or terminate an authorization shall be

20 considered under an expedited procedure.

21 (d) JUDICIAL REVIEW.—A person may seek judicial

22 review of a decision reached at the conclusion of such pro23 cedure. Such review shall be conducted on a de novo basis

24 by a court of competent jurisdiction.
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S 2194 IS

1 SEC. 14. RULES OF CONSTRUCTION.

2 Outfitter and guide programs of agencies administer3 ing Federal lands subject to this Act shall be fully consist4 ent with an agency’s mission and laws applicable to such

5 agency. Nothing in this Act shall be construed as limiting

6 or restricting any right, title, or interest of the United

7 States in or to any land or resources.

8 SEC. 15. REGULATIONS.

9 The agency head shall promulgate regulations to im10 plement this Act no later than 2 years after the date of

11 enactment of this Act. Prior to final publication of such

12 regulations, the agency head may not rely on any provision

13 of this Act as cause for not awarding an outfitter and

14 guide authorization under authority existing prior to en15 actment of this Act.

16 SEC. 16. SAVINGS CLAUSE.

17 (a) IN GENERAL.—The superseding of any provision,

18 or the amendment of any provision, of an Act referred to

19 in subsection (a) shall not affect the validity of any au20 thorizations entered into under any such Act.

21 (b) TRANSITION.—

22 (1) The holder of an outfitter and guide special

23 use permit or concessioner permit or contract (or ex24 tension thereof) which is in effect on the date of en25 actment of this Act shall be entitled to the issuance

26 of an outfitter and guide authorization under the
38

S 2194 IS

1 provision of this Act at the time of the expiration of

2 the term of the existing authorization if the holder

3 has received a satisfactory or equivalent rating in

4 the evaluation of overall performance through the

5 term of the authorization in effect on the date of en6 actment of this Act. For purposes hereof, the right

7 of ‘‘issuance of an outfitter and guide permit’’ under

8 this subsection shall be deemed a renewal or reissu9 ance of the outfitter and guide permit for purposes

10 of satisfying the provisions of this Act.

11 (2) A holder who exercises this right of issuance

12 in accordance with the requirements of this Act shall

13 be entitled to receive an outfitter and guide agree14 ment.

15 (c) ANILCA.—Nothing in this Act shall be construed

16 to amend, supersede or otherwise affect any provision of

17 the Alaska National Interest Lands Conservation Act (16

18 U.S.C. 3101 et seq.) relating to revenue-producing visitor

19 services.

20 SEC. 17. AUTHORIZATION OF APPROPRIATIONS.

21 There are authorized to be appropriated such sums

22 as may be necessary to carry out this Act.

Æ