II

Calendar No. 940

106TH CONGRESS

2D SESSION S. 1969

[Report No. 106–491]

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.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 18, 1999

Mr. CRAIG (for himself, Mr. MURKOWSKI, Mr. THOMAS, Mr. GRAMS, Mr.

HATCH, and Mr. SMITH of Oregon) introduced the following bill; which

was read twice and referred to the Committee on Energy and Natural

Resources

OCTOBER 5 (legislative day, SEPTEMBER 22), 2000

Reported by Mr. MURKOWSKI, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

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.

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

2 This Act may be cited as the ‘‘Outfitter Policy Act

3 of 1999’’.

4 SEC. 2. FINDINGS.

5 Congress finds that—

6 (1) the experience, skills, trained staff, and in7 vestment in equipment that are provided by author8 ized outfitters are necessary to provide access to

9 Federal land to members of the public that need or

10 desire commercial outfitted activities to facilitate

11 their use and enjoyment of recreational or edu12 cational opportunities on Federal land;

13 (2) such activities constitute an important con14 tribution toward meeting the recreational and edu15 cational objectives of resource management plans ap16 proved and administered by agencies of the Depart17 ment of Agriculture and the Department of the Inte18 rior;

19 (3) an effective relationship between those

20 agencies and authorized outfitters requires imple21 mentation of agency policies and programs that pro22 vide for—

23 (A) a reasonable opportunity for an au24 thorized outfitter to realize a profit;

25 (B) a fair and reasonable return to the

26 United States through appropriate fees;
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1 (C) renewal of outfitter permits based on

2 a performance evaluation system that rewards

3 outfitters that meet required performance

4 standards and discontinues outfitters that fail

5 to meet those standards; and

6 (D) transfer of an outfitter permit to the

7 qualified purchaser of the operation of an au8 thorized outfitter, an heir or assign, or another

9 qualified person or entity; and

10 (4) the provision of opportunities for outfitted

11 visitors to Federal land to engage in fishing and

12 hunting is best served by continued recognition that

13 the States retain primary authority over the taking

14 of fish and wildlife on Federal land.

15 SEC. 3. PURPOSES.

16 The purposes of this Act are—

17 (1) to establish terms and conditions of access

18 to, and occupancy and use of, Federal land by visi19 tors who require or desire the assistance of an au20 thorized outfitter; and

21 (2) to establish a stable regulatory climate that

22 encourages a qualified person or entity to provide,

23 and to continue to invest in the ability to provide,

24 outfitted visitors with access to, and occupancy and

25 use of, Federal land.
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1 SEC. 4. DEFINITIONS.

2 In this Act:

3 (1) ACTUAL USE.—The term ‘‘actual use’’

4 means the portion of a principal allocation of out5 fitter use that an authorized outfitter uses in con6 ducting commercial outfitted activities during a pe7 riod, for a type of use, for a location, or in terms

8 of another measurement of the term or outfitted ac9 tivities covered by an outfitter permit.

10 (2) ALLOCATION OF USE.—

11 (A) IN GENERAL.—The term ‘‘allocation of

12 use’’ means a method or measurement of access

13 that—

14 (i) is granted by the Secretary to an

15 authorized outfitter for the purpose of fa16 cilitating the occupancy and use of Federal

17 land by an outfitted visitor;

18 (ii) takes the form of—

19 (I) an amount or type of com20 mercial outfitted activity resulting

21 from an apportionment of the total

22 recreation capacity of a resource area;

23 or

24 (II) in the case of a resource

25 area for which recreation capacity has

26 not been apportioned, a type of com-
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1 mercial outfitted activity conducted in

2 a manner that is not inconsistent with

3 or incompatible with an approved re4 source management plan; and

5 (iii) is calibrated in terms of amount

6 of use, type of use, or location of a com7 mercial outfitted activity, including user

8 days or portions of user days, seasons or

9 other periods of operation, launch dates,

10 assigned camps, or other formulations of

11 the type or amount of authorized activity.

12 (B) INCLUSION.—The term ‘‘allocation of

13 use’’ includes the designation of a geographic

14 area, zone, or district in which a limited num15 ber of authorized outfitters are authorized to

16 operate.

17 (3) AUTHORIZED OUTFITTER.—

18 (A) IN GENERAL.—The term ‘‘authorized

19 outfitter’’ means a person that conducts a com20 mercial outfitted activity on Federal land under

21 an outfitter authorization.

22 (B) INCLUSION.—The term ‘‘authorized

23 outfitter’’ includes an outfitter that conducts a

24 commercial outfitted activity on Federal land

25 under an outfitter authorization awarded under
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1 an agreement between the Secretary and a

2 State or local government that provides for the

3 regulation by a State or local agency of com4 mercial outfitted activities on Federal land.

5 (4) COMMERCIAL OUTFITTED ACTIVITY.—The

6 term ‘‘commercial outfitted activity’’ means an au7 thorized outfitted activity—

8 (A) that is available to the public;

9 (B) that is conducted under the direction

10 of paid staff; and

11 (C) for which an outfitted visitor is re12 quired to pay more than shared expenses (in13 cluding payment to an authorized outfitter that

14 is a nonprofit organization).

15 (5) FEDERAL AGENCY.—The term ‘‘Federal

16 agency’’ means—

17 (A) the Forest Service;

18 (B) the Bureau of Land Management;

19 (C) the United States Fish and Wildlife

20 Service; and

21 (D) the Bureau of Reclamation.

22 (6) FEDERAL LAND.—

23 (A) IN GENERAL.—The term ‘‘Federal

24 land’’ means all land and interests in land ad25 ministered by a Federal agency.
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1 (B) EXCLUSION.—The term ‘‘Federal

2 land’’ does not include—

3 (i) land held in trust by the United

4 States for the benefit of an Indian tribe or

5 individual; or

6 (ii) land held by an Indian tribe or in7 dividual subject to a restriction by the

8 United States against alienation.

9 (7) INSTITUTIONAL RECREATION PROGRAM.—

10 The term ‘‘institutional recreation program’’ means

11 a program of recreational activities on Federal land

12 that may include the conduct of an outfitted activity

13 on Federal land sponsored and guided by—

14 (A) an institution with a membership or

15 limited constituency, such as a religious, con16 servation, youth, fraternal, or social organiza17 tion; or

18 (B) an educational institution, such as a

19 college or university.

20 (8) LIMITED OUTFITTER AUTHORIZATION.—

21 The term ‘‘limited outfitter authorization’’ means an

22 outfitter authorization under section 6(f).

23 (9) LIVERY.—The term ‘‘livery’’ means the

24 dropping off or picking up of visitors, supplies, or

25 equipment on Federal land.
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1 (10) OUTFITTED ACTIVITY.—

2 (A) IN GENERAL.—The term ‘‘outfitted ac3 tivity’’ means an activity—

4 (i) such as outfitting, guiding, super5 vision, education, interpretation, skills

6 training, assistance, or livery operation

7 conducted for a member of the public in an

8 outdoor environment; and

9 (ii) that uses the recreational, natural,

10 historical, or cultural resources of Federal

11 land.

12 (B) EXCLUSION.—The term ‘‘outfitted ac13 tivity’’ does not include a service provided under

14 the National Forest Ski Area Permit Act of

15 1986 (16 U.S.C. 497b).

16 (11) OUTFITTED VISITOR.—The term ‘‘out17 fitted visitor’’ means a member of the public that re18 lies on an authorized outfitter for access to and oc19 cupancy and use of Federal land.

20 (12) OUTFITTER.—The term ‘‘outfitter’’ means

21 a person that conducts a commercial outfitted activ22 ity, including a person that, by local custom or tra23 dition, is known as a ‘‘guide’’.

24 (13) OUTFITTER AUTHORIZATION.—The term

25 ‘‘outfitter authorization’’ means—
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1 (A) an outfitter permit; or

2 (B) a limited outfitter authorization.

3 (14) OUTFITTER PERMIT.—The term ‘‘outfitter

4 permit’’ means an outfitter permit under section 6.

5 (15) PRINCIPAL ALLOCATION OF OUTFITTER

6 USE.—The term ‘‘principal allocation of outfitter

7 use’’ means a commitment by the Secretary in an

8 outfitter permit for an allocation of use to an au9 thorized outfitter in accordance with section 9.

10 (16) RESOURCE AREA.—The term ‘‘resource

11 area’’ means a management unit that is described by

12 or contained within the boundaries of—

13 (A) a national forest;

14 (B) an area of public land;

15 (C) a wildlife refuge;

16 (D) a congressionally designated area;

17 (E) a hunting zone or district; or

18 (F) any other Federal planning unit (in19 cluding an area in which outfitted activities are

20 regulated by more than 1 Federal agency).

21 (17) SECRETARY.—The term ‘‘Secretary’’

22 means—

23 (A) with respect to Federal land adminis24 tered by the Forest Service, the Secretary of
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1 Agriculture, acting through the Chief of the

2 Forest Service or a designee;

3 (B) with respect to Federal land adminis4 tered by the Bureau of Land Management, the

5 Secretary of the Interior, acting through the

6 Director of the Bureau of Land Management or

7 a designee;

8 (C) with respect to Federal land adminis9 tered by the United States Fish and Wildlife

10 Service, the Secretary of the Interior, acting

11 through the Director of the United States Fish

12 and Wildlife Service or a designee; and

13 (D) with respect to Federal land adminis14 tered by the Bureau of Reclamation, the Sec15 retary of the Interior, acting through the Com16 missioner of Reclamation or a designee.

17 (18) TEMPORARY ALLOCATION OF USE.—The

18 term ‘‘temporary allocation of use’’ means an alloca19 tion of use to an authorized outfitter in accordance

20 with section 9.

21 SEC. 5. NONOUTFITTER USE AND ENJOYMENT.

22 Nothing in this Act enlarges or diminishes the right

23 or privilege of occupancy and use of Federal land under

24 any applicable law (including planning process rules and

25 any administrative allocation), by a commercial or non-
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1 commercial individual or entity that is not an authorized

2 outfitter or outfitted visitor.

3 SEC. 6. OUTFITTER AUTHORIZATIONS.

4 (a) IN GENERAL.—

5 (1) PROHIBITION.—No person or entity, except

6 an authorized outfitter, shall conduct a commercial

7 outfitted activity on Federal land.

8 (2) CONDUCT OF OUTFITTED ACTIVITIES.—An

9 authorized outfitter shall not conduct an outfitted

10 activity on Federal land except in accordance with

11 an outfitter authorization.

12 (3) SPECIAL RULE FOR ALASKA.—With respect

13 to a commercial outfitted activity conducted in the

14 State of Alaska, the Secretary shall not establish or

15 impose a limitation on access by an authorized out16 fitter that is inconsistent with the access ensured

17 under subsections (a) and (b) of section 1110 of the

18 Alaska National Interest Lands Conservation Act

19 (16 U.S.C. 3170).

20 (b) TERMS AND CONDITIONS.—An outfitter author21 ization shall specify—

22 (1) the rights and obligations of the authorized

23 outfitter and the Secretary; and

24 (2) other terms and conditions of the authoriza25 tion.
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1 (c) CRITERIA FOR AWARD OF AN OUTFITTER PER2 MIT.—The Secretary shall establish criteria for award of

3 an outfitter permit that—

4 (1) identify skilled, experienced, and financially

5 capable persons or entities with knowledge of the re6 source area to offer and conduct commercial out7 fitted activities;

8 (2) provide a stable regulatory climate in ac9 cordance with this Act and other law (including reg10 ulations) that encourages a qualified person or enti11 ty to provide, and to continue to invest in the ability

12 to provide, commercial outfitted activities;

13 (3) offer a reasonable opportunity for an au14 thorized outfitter to realize a profit; and

15 (4) subordinate considerations of revenue to the

16 United States to the objectives of—

17 (A) providing recreational or educational

18 opportunities for the outfitted visitor;

19 (B) providing for the health and welfare of

20 the public; and

21 (C) conserving resources.

22 (d) AWARD.—

23 (1) IN GENERAL.—The Secretary may award

24 an outfitter permit under this Act if—
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1 (A) the commercial outfitted activity to be

2 authorized is not inconsistent with or incompat3 ible with an approved resource management

4 plan applicable to the resource area in which

5 the commercial outfitted activity is to be con6 ducted; and

7 (B) the authorized outfitter meets the cri8 teria established under subsection (c)(1).

9 (2) USE OF COMPETITIVE PROCESS.—

10 (A) IN GENERAL.—Except as otherwise

11 provided by this Act, the Secretary shall use a

12 competitive process to select an authorized out13 fitter to which an outfitter permit is to be

14 awarded.

15 (B) EXCEPTION FOR CERTAIN ACTIVI16 TIES.—The Secretary may award an outfitter

17 permit to an applicant without conducting a

18 competitive selection process if the Secretary

19 determines that—

20 (i) the applicant meets criteria estab21 lished by the Secretary under subsection

22 (c); and

23 (ii) there is no competitive interest in

24 the commercial outfitted activity to be con25 ducted.
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1 (C) EXCEPTION FOR RENEWALS AND

2 TRANSFERS.—The Secretary shall award an

3 outfitter permit to an applicant without con4 ducting a competitive selection process if the

5 authorization is a renewal or transfer of an ex6 isting outfitter permit under section 11 or 12.

7 (e) PROVISIONS OF OUTFITTER PERMITS.—

8 (1) IN GENERAL.—An outfitter permit shall

9 provide for—

10 (A) the health and welfare of the public;

11 (B) conservation of resource values;

12 (C) a fair and reasonable return to the

13 United States through an authorization fee in

14 accordance with section 7;

15 (D) a term of 10 years;

16 (E) the obligation of an authorized out17 fitter to defend and indemnify the United

18 States in accordance with section 8;

19 (F) a principal allocation of outfitter use,

20 and, if appropriate, a temporary allocation of

21 use, in accordance with section 9;

22 (G) a plan to conduct performance evalua23 tions in accordance with section 10;

24 (H) renewal or termination of an outfitter

25 permit in accordance with section 11;
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1 (I) transfer of an outfitter permit in ac2 cordance with section 12;

3 (J) a means of modifying an outfitter per4 mit to reflect material changes from the terms

5 and conditions specified in the outfitter permit;

6 (K) notice of a right of appeal and judicial

7 review in accordance with section 14; and

8 (L) such other terms and conditions as the

9 Secretary may require.

10 (2) EXTENSIONS.—The Secretary may award

11 not more than 3 temporary 1-year extensions of an

12 outfitter permit, unless the Secretary determines

13 that extraordinary circumstances warrant additional

14 extensions.

15 (f) LIMITED OUTFITTER AUTHORIZATIONS.—

16 (1) IN GENERAL.—The Secretary may issue a

17 limited outfitter authorization to an applicant for in18 cidental occupancy and use of Federal land for the

19 purpose of conducting a commercial outfitted activ20 ity on a limited basis.

21 (2) TERM.—A limited outfitter authorization

22 shall have a term of not to exceed 2 years.

23 (3) REISSUANCE OR RENEWAL.—A limited out24 fitter authorization may be reissued or renewed at

25 the discretion of the Secretary.
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1 SEC. 7. AUTHORIZATION FEES.

2 (a) AMOUNT OF FEE.—

3 (1) IN GENERAL.—An outfitter permit shall

4 provide for payment to the United States of a fair

5 and reasonable authorization fee, as determined by

6 the Secretary.

7 (2) DETERMINATION OF AMOUNT OF FEE.—In

8 determining the amount of an authorization fee, the

9 Secretary shall take into consideration—

10 (A) the obligations of the outfitter under

11 the outfitter permit;

12 (B) the provision of a reasonable oppor13 tunity for net profit in relation to capital in14 vested; and

15 (C) economic conditions.

16 (b) ESTABLISHMENT OF AMOUNT APPLICABLE TO

17 AN OUTFITTER PERMIT.—

18 (1) IN GENERAL.—The amount of the author19 ization fee paid to the United States for the term of

20 an outfitter permit shall be specified in the outfitter

21 permit.

22 (2) REQUIREMENTS.—The amount of the au23 thorization fee—

24 (A)(i) shall be expressed as—

25 (I) a simple charge per day of ac26 tual use; or
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1 (II) an annual or seasonable flat

2 fee;

3 (ii) if calculated as a percentage of

4 revenue, shall be determined based on ad5 justed gross receipts; or

6 (iii) with respect to a commercial out7 fitted activity conducted in the State of

8 Alaska, shall be based on a simple charge

9 per user day;

10 (B) shall be subordinate to the objectives

11 of—

12 (i) conserving resources;

13 (ii) protecting the health and welfare

14 of the public; and

15 (iii) providing reliable, consistent per16 formance in conducting outfitted activities;

17 and

18 (C) shall be required to be paid by an au19 thorized outfitter to the United States on a rea20 sonable schedule during the operating season.

21 (3) ADJUSTED GROSS RECEIPTS.—For the pur22 pose of paragraph (2)(A)(ii), the Secretary shall—

23 (A) take into consideration revenue from

24 the gross receipts of the authorized outfitter
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1 from commercial outfitted activities conducted

2 on Federal land; and

3 (B) exclude from consideration any rev4 enue that is derived from—

5 (i) fees paid by the authorized out6 fitter to any unit of Federal, State, or local

7 government for—

8 (I) hunting or fishing licenses;

9 (II) entrance or recreation fees;

10 or

11 (III) other purposes (other than

12 commercial outfitted activities con13 ducted on Federal land);

14 (ii) goods and services sold to out15 fitted visitors that are not within the scope

16 of authorized outfitter activities conducted

17 on Federal land; or

18 (iii) operations on non-Federal land.

19 (4) SUBSTANTIALLY SIMILAR SERVICES IN A

20 SPECIFIC GEOGRAPHIC AREA.—

21 (A) IN GENERAL.—Except as provided in

22 subparagraph (B), if more than 1 outfitter per23 mit is awarded to conduct the same or similar

24 commercial outfitted activities in the same re-
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1 source area, the Secretary shall establish an

2 identical fee for all such outfitter permits.

3 (B) EXCEPTION.—The terms and condi4 tions of an existing outfitter permit shall not be

5 subject to modification or open to renegotiation

6 by the Secretary because of the award of a new

7 outfitter permit at the same resource area for

8 the same or similar commercial outfitted activi9 ties.

10 (5) ACTUAL USE.—

11 (A) IN GENERAL.—For the purpose of cal12 culating an authorization fee for actual use

13 under clauses (ii) and (iii) of paragraph (2)(A),

14 the sum of authorization fees proportionately

15 assessed per outfitted visitor in a single cal16 endar day for commercial outfitted activities at

17 more than 1 resource area shall be not greater

18 than the equivalent fee charged for 1 full user

19 day.

20 (B) RECONSIDERATION OF FEE.—The au21 thorization fee may be reconsidered during the

22 term of the outfitter permit in accordance with

23 paragraph (6) or section 9(c)(3) at the request

24 of the Secretary or the authorized outfitter.
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1 (6) ADJUSTMENT OF FEES.—The amount of an

2 authorization fee—

3 (A) shall be determined as of the date of

4 the outfitter permit; and

5 (B) may be modified to reflect—

6 (i) changes relating to the terms and

7 conditions of the outfitter permit, including

8 1 or more outfitter permits described in

9 paragraph (5);

10 (ii) extraordinary unanticipated

11 changes affecting operating conditions,

12 such as natural disasters, economic condi13 tions, or other material adverse changes

14 from the terms and conditions specified in

15 the outfitter permit;

16 (iii) changes affecting operating or

17 economic conditions determined by other

18 governing entities, such as the availability

19 of State fish or game licenses; or

20 (iv) the imposition of new or higher

21 fees assessed under other law.

22 (c) ESTABLISHMENT OF AMOUNT APPLICABLE TO A

23 LIMITED OUTFITTER AUTHORIZATION.—The Secretary

24 shall determine the amount of an authorization fee, if any,

25 under a limited outfitter authorization.
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1 SEC. 8. LIABILITY AND INDEMNIFICATION.

2 (a) IN GENERAL.—An authorized outfitter shall de3 fend and indemnify the United States for costs or ex4 penses associated with injury, death, or damage to any

5 person or property caused by the authorized outfitter’s

6 negligence, gross negligence, or willful and wanton dis7 regard for persons or property arising directly out of the

8 authorized outfitter’s conduct of a commercial outfitted

9 activity under an outfitter authorization.

10 (b) NO LIABILITY.—An authorized outfitter—

11 (1) shall have no responsibility to defend or in12 demnify the United States, its agents, employees, or

13 contractors, or third parties for costs or expenses as14 sociated with injury, death, or damage to any person

15 or property caused by the acts, omissions, neg16 ligence, gross negligence, or willful and wanton mis17 conduct of the United States, its agents, employees,

18 or contractors, or third parties;

19 (2) shall not incur liability of any kind to the

20 United States, its agents, employees, or contractors,

21 or third parties as a result of the award of an out22 fitter authorization or as a result of the conduct of

23 a commercial outfitted activity under an outfitter

24 authorization absent a finding by a court of com25 petent jurisdiction of negligence, gross negligence, or
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1 willful and wanton disregard for persons or property

2 on the part of the authorized outfitter; and

3 (3) shall have no responsibility to defend or in4 demnify the United States, its agents, employees, or

5 contractors, or third parties for costs or expenses as6 sociated with injury, death, or damage to any person

7 or property resulting from the inherent risks of the

8 commercial outfitted activity conducted by the au9 thorized outfitter under the outfitter authorization

10 or the inherent risks present on Federal land.

11 (c) AGREEMENTS.—An authorized outfitter may

12 enter into contracts or other agreements with outfitted

13 visitors, including agreements providing for release, waiv14 er, indemnification, acknowledgment of risk, or allocation

15 of risk.

16 SEC. 9. ALLOCATION OF USE.

17 (a) IN GENERAL.—In a manner that is not incon18 sistent with or incompatible with an approved resource

19 management plan applicable to the resource area in which

20 a commercial outfitted activity occurs, the Secretary—

21 (1) shall provide a principal allocation of out22 fitter use to an authorized outfitter under an out23 fitter permit; and

24 (2) may provide a temporary allocation of use

25 to an authorized outfitter under an outfitter permit.
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1 (b) RENEWALS, TRANSFERS, AND EXTENSIONS.—

2 The Secretary shall provide a principal allocation of out3 fitter use to an authorized outfitter that—

4 (1) in the case of the renewal of an outfitter

5 permit, is not inconsistent with or incompatible with

6 the terms and conditions of an approved resource

7 management plan applicable to the resource area in

8 which the commercial outfitted activity occurs; or

9 (2) in the case of the transfer or temporary ex10 tension of an outfitter permit, is the same amount

11 of principal allocation of outfitter use provided to

12 the current authorized outfitter.

13 (c) WAIVER.—

14 (1) IN GENERAL.—At the request of an author15 ized outfitter, the Secretary may waive any obliga16 tion of the authorized outfitter to use all or part of

17 the amount of allocation of use provided under the

18 outfitter permit, if the request is made in sufficient

19 time to allow the Secretary to temporarily reallocate

20 the unused portion of the allocation of use in that

21 season or calendar year.

22 (2) RECLAIMING OF ALLOCATION OF USE.—Un23 less the Secretary has reallocated the unused portion

24 of an allocation of use in accordance with paragraph
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1 (1), the authorized outfitter may reclaim any part of

2 the unused portion in that season or calendar year.

3 (3) NO FEE OBLIGATION.—An outfitter permit

4 fee may not be charged for any amount of allocation

5 of use subject to a waiver under paragraph (1).

6 (d) ADJUSTMENT TO ALLOCATION OF USE.—The

7 Secretary—

8 (1) may adjust an allocation of use assigned to

9 an authorized outfitter to reflect—

10 (A) material change arising from approval

11 of a change in the resource management plan

12 for the area of operation; or

13 (B) requirements arising under other law;

14 and

15 (2) shall provide an authorized outfitter with

16 documentation supporting the basis for any adjust17 ment in the principal allocation of outfitter use, in18 cluding new terms and conditions that result from

19 the adjustment.

20 (e) TEMPORARY ALLOCATION OF USE.—

21 (1) IN GENERAL.—A temporary allocation of

22 use may be provided to an authorized outfitter at

23 the discretion of the Secretary for a period not to

24 exceed 2 years.
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1 (2) RENEWALS, TRANSFERS, AND EXTEN2 SIONS.—A temporary allocation of use may be re3 newed, transferred, or extended at the discretion of

4 the Secretary.

5 SEC. 10. EVALUATION OF PERFORMANCE UNDER OUT6 FITTER PERMITS.

7 (a) EVALUATION PROCESS.—

8 (1) IN GENERAL.—The Secretary shall develop

9 a process for annual evaluation of the performance

10 of an authorized outfitter in conducting a commer11 cial outfitted activity under an outfitter permit.

12 (2) EVALUATION CRITERIA.—Criteria to be

13 used by the Secretary to evaluate the performance of

14 an authorized outfitter shall—

15 (A) be objective, measurable, and reason16 ably attainable; and

17 (B) include—

18 (i) standards generally applicable to

19 all commercial outfitted activities;

20 (ii) standards specific to a resource

21 area, an individual outfitter operation, or a

22 type of commercial outfitted activity; and

23 (iii) such other terms and conditions

24 of the outfitter permit as are agreed to by
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1 the Secretary and the authorized outfitter

2 as measurements of performance.

3 (3) SPECIAL RULE FOR ALASKA.—With respect

4 to commercial outfitted activities conducted in the

5 State of Alaska, objectives relating to conservation

6 of natural resources and the taking of fish and game

7 shall not be inconsistent with the laws (including

8 regulations) of the Alaska Department of Fish and

9 Game.

10 (4) REQUIREMENTS.—In evaluating the level of

11 performance of an authorized outfitter, the Sec12 retary shall—

13 (A) appropriately account for factors be14 yond the control of the authorized outfitter, in15 cluding conditions described in section

16 7(b)(6)(B);

17 (B) ensure that the effect of any perform18 ance deficiency reflected by the performance

19 rating is proportionate to the severity of the de20 ficiency, including any harm that may have re21 sulted from the deficiency; and

22 (C) allow additional credit to be earned for

23 elements of performance that exceed the re24 quirements of the outfitter permit.
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1 (b) LEVELS OF PERFORMANCE.—The Secretary shall

2 define 3 levels of performance, as follows:

3 (1) Good, indicating a level of performance that

4 fulfills the terms and conditions of the outfitter per5 mit.

6 (2) Marginal, indicating a level of performance

7 that, if not corrected, will result in an unsatisfactory

8 level of performance.

9 (3) Unsatisfactory, indicating a level of per10 formance that fails to fulfill the terms and condi11 tions of the outfitter permit.

12 (c) PERFORMANCE EVALUATION.—

13 (1) EVALUATION SYSTEM.—The Secretary shall

14 establish a performance evaluation system that

15 assures the public of continued availability of de16 pendable commercial outfitted activities and discon17 tinues any authorized outfitter that fails to meet the

18 required standards.

19 (2) PROCEDURE.—An authorized outfitter shall

20 be entitled—

21 (A) to be present, or represented, at in22 spections of operations or facilities, which in23 spections shall be limited to the operations and

24 facilities of the authorized outfitter located on

25 Federal land;
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1 (B) to receive written notice of any con2 duct or condition that, if not corrected, might

3 lead to a performance evaluation of marginal or

4 unsatisfactory, which notice shall include an ex5 planation of needed corrections and provide a

6 reasonable period of time in which the correc7 tions may be made without penalty; and

8 (C) to receive written notice of the results

9 of the performance evaluation not later than 30

10 days after the conclusion of the authorized out11 fitter’s operating season, including the level of

12 performance and the status of corrections that

13 may have been required.

14 (d) MARGINAL PERFORMANCE.—If an authorized

15 outfitter’s level of performance for a year is determined

16 to be marginal, and the authorized outfitter fails to com17 plete the corrections within the time period specified under

18 subsection (c)(2)(B), the level of performance shall be de19 termined to be unsatisfactory for the year.

20 (e) DETERMINATION OF ELIGIBILITY FOR RE21 NEWAL.—

22 (1) IN GENERAL.—The results of all annual

23 performance evaluations of an authorized outfitter

24 shall be reviewed by the Secretary in the year pre25 ceding the year in which the outfitter permit expires
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1 to determine whether the authorized outfitter’s over2 all performance during the term has met the re3 quirements for renewal under section 11.

4 (2) FAILURE TO EVALUATE.—If, in any year of

5 the term of an outfitter permit, the Secretary fails

6 to evaluate the performance of the authorized out7 fitter by the date that is 60 days after the conclu8 sion of the authorized outfitter’s operating season,

9 the performance of the authorized outfitter in that

10 year shall be considered to have been good.

11 (3) NOTICE.—Not later than 60 days after the

12 end of the year preceding the year in which an out13 fitter permit expires, the Secretary shall provide the

14 authorized outfitter with the cumulative results of

15 performance evaluations conducted under this sub16 section during the term of the outfitter permit.

17 (4) UNSATISFACTORY PERFORMANCE IN FINAL

18 YEAR.—If an authorized outfitter receives an unsat19 isfactory performance rating under subsection (d) in

20 the final year of the term of an outfitter permit, the

21 review and determination of eligibility for renewal of

22 the outfitter permit under paragraph (1) shall be re23 vised to reflect that result.
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1 SEC. 11. RENEWAL OR TERMINATION OF OUTFITTER PER2 MITS.

3 (a) RENEWAL AT EXPIRATION OF TERM.—

4 (1) IN GENERAL.—On expiration of the term of

5 an outfitter authorization, the Secretary shall renew

6 the authorization in accordance with paragraph (2).

7 (2) DETERMINATION BASED ON ANNUAL PER8 FORMANCE RATING.—The Secretary shall renew an

9 outfitter authorization under paragraph (1) at the

10 request of the authorized outfitter and subject to the

11 requirements of this Act if the Secretary determines

12 that the authorized outfitter has received not more

13 than 1 unsatisfactory annual performance rating

14 under section 10 during the term of the outfitter

15 permit.

16 (b) TERMINATION.—An outfitter permit may be ter17 minated only if the Secretary determines that—

18 (1) the authorized outfitter has failed to correct

19 a condition for which the authorized outfitter re20 ceived notice under section 10(c)(2)(B) and the con21 dition is considered by the Secretary to be signifi22 cant with respect to the health and welfare of out23 fitted visitors or the conservation of resources;

24 (2) the authorized outfitter is repeatedly in ar25 rears in the payment of fees under section 7; or
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1 (3) the authorized outfitter’s conduct dem2 onstrates repeated and willful disregard for—

3 (A) the health and welfare of outfitted visi4 tors; or

5 (B) the conservation of resources on which

6 the commercial outfitted activities are con7 ducted.

8 SEC. 12. TRANSFERABILITY OF OUTFITTER PERMITS.

9 (a) IN GENERAL.—An outfitter permit shall not be

10 transferred (including assigned or otherwise conveyed or

11 pledged) by the authorized outfitter without prior written

12 notification to, and approval by, the Secretary.

13 (b) APPROVAL.—

14 (1) IN GENERAL.—The Secretary shall approve

15 a transfer of an outfitter permit unless the Secretary

16 determines that the transferee does not have suffi17 cient professional, financial, and other resources or

18 business experience to be capable of performing

19 under the outfitter permit for the remainder of the

20 term of the outfitter permit.

21 (2) QUALIFIED TRANSFEREES.—Subject to sec22 tion 6(d)(1), the Secretary shall approve a transfer

23 of an outfitter permit—

24 (A) to a purchaser of the operation of the

25 authorized outfitter;
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1 (B) at the request of the authorized out2 fitter, to an assignee, partner, or stockholder or

3 other owner of an interest in the operation of

4 the authorized outfitter; or

5 (C) on the death of the authorized out6 fitter, to an heir or assign.

7 (c) NO MODIFICATION AS CONDITION OF AP8 PROVAL.—The terms and conditions of an outfitter permit

9 shall not be subject to modification or open to renegoti10 ation by the Secretary because of a transfer described in

11 subsection (a), unless the terms and conditions of the out12 fitter permit that is proposed to be transferred have be13 come inconsistent or incompatible with an approved re14 source management plan for the resource area as a result

15 of a modification to the plan.

16 (d) CONSIDERATION PERIOD.—

17 (1) THRESHOLD FOR AUTOMATIC APPROVAL.—

18 Subject to paragraph (2), if the Secretary fails to

19 approve or disapprove the transfer of an outfitter

20 permit within 90 days after the date of receipt of an

21 application containing the information required with

22 respect to the transfer, the transfer shall be deemed

23 to have been approved.

24 (2) EXTENSION.—The Secretary and the au25 thorized outfitter making application for transfer of
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1 an outfitter permit may agree to extend the period

2 for consideration of the application.

3 (e) CONTINUANCE OF OUTFITTER PERMIT.—If the

4 transfer of an outfitter permit is not approved by the Sec5 retary or if the transfer is not subsequently made, the out6 fitter permit shall remain in effect.

7 SEC. 13. RECORDKEEPING REQUIREMENTS.

8 (a) IN GENERAL.—An authorized outfitter shall keep

9 such reasonable records as the Secretary may require to

10 enable the Secretary to determine that all the terms of

11 the outfitter authorization have been and are being carried

12 out.

13 (b) BURDEN ON AUTHORIZED OUTFITTER.—The

14 recordkeeping requirements established by the Secretary

15 shall incorporate simplified procedures that do not impose

16 an undue burden on an authorized outfitter.

17 (c) ACCESS TO RECORDS.—The Secretary, or an au18 thorized representative of the Secretary, shall, until the

19 end of the fifth calendar year beginning after the end of

20 the business year of an authorized outfitter, have access

21 to and the right to examine any books, papers, documents,

22 and records of the authorized outfitter relating to each

23 outfitter authorization held by the authorized outfitter

24 during the business year.
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1 SEC. 14. APPEALS AND JUDICIAL REVIEW.

2 (a) APPEALS PROCEDURE.—The Secretary shall by

3 regulation—

4 (1) grant an authorized outfitter full access to

5 administrative remedies under the Secretary’s au6 thority at the time of an appeal; and

7 (2) establish an expedited procedure for consid8 eration of appeals of Federal agency decisions to

9 deny, suspend, fail to renew, or terminate an out10 fitter permit.

11 (b) JUDICIAL REVIEW.—An authorized outfitter that

12 is adversely affected by a final decision of the Secretary

13 under this Act may commence a civil action in United

14 States district court.

15 SEC. 15. INSTITUTIONAL RECREATION PROGRAMS.

16 (a) IN GENERAL.—The Secretary shall manage the

17 occupancy and use of Federal land by institutional recre18 ation programs that conduct outfitted activities under this

19 Act.

20 (b) REQUIREMENTS.—In managing an institutional

21 recreation program authorized under this Act, the Sec22 retary shall require that the program—

23 (1) operate in a manner that is not inconsistent

24 with or incompatible with an approved resource

25 management plan applicable to the resource area in

26 which the outfitted activity is conducted;
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1 (2) provide for the health and welfare of mem2 bers of the sponsoring organization or affiliated par3 ticipants; and

4 (3) ensure the conservation of resources.

5 SEC. 16. CONSISTENCY WITH OTHER LAW AND RIGHTS.

6 (a) CONSISTENCY WITH OTHER LAW.—Each pro7 gram of outfitted activities carried out on Federal land

8 shall be consistent with the mission of the administering

9 Federal agency and all laws (including regulations) appli10 cable to the outfitted activities.

11 (b) CONSISTENCY WITH RIGHTS OF UNITED

12 STATES.—Nothing in this Act limits or restricts any right,

13 title, or interest of the United States in or to any land

14 or resource.

15 SEC. 17. REGULATIONS.

16 Not later than 2 years after the date of enactment

17 of this Act, the Secretary shall promulgate such regula18 tions as are appropriate to carry out this Act.

19 SEC. 18. RELATIONSHIP TO OTHER LAW.

20 (a) NATIONAL PARK OMNIBUS MANAGEMENT ACT

21 OF 1998.—Nothing in this Act supersedes or otherwise

22 affects any provision of title IV of the National Park Om23 nibus Management Act of 1998 (16 U.S.C. 5951 et seq.).
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1 (b) STATE OUTFITTER LICENSING LAW.—This Act

2 does not preempt any outfitter or guide licensing law (in3 cluding any regulation) of any State or territory.

4 SEC. 19. TRANSITION PROVISIONS.

5 (a) IN GENERAL.—

6 (1) OUTFITTERS WITH SATISFACTORY RAT7 INGS.—An outfitter that holds a permit, contract, or

8 other authorization to conduct commercial outfitted

9 activities (or an extension of such a permit, contract,

10 or other authorization) in effect on the date of en11 actment of this Act shall be entitled, on request or

12 on expiration of the authorization, to the issuance of

13 an outfitter permit under this Act if a recent per14 formance evaluation determined that the outfitter’s

15 aggregate performance under the permit, contract,

16 or other authorization was good or was the equiva17 lent of good, satisfactory, or acceptable under a rat18 ing system in use before the date of enactment of

19 this Act.

20 (2) OUTFITTERS WITH NO RATINGS.—For the

21 purpose of paragraph (1), if no recent performance

22 evaluation exists with respect to an outfitter, the

23 outfitter’s aggregate performance under the permit,

24 contract, or other authorization shall be deemed to

25 be good.
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1 (b) EFFECT OF ISSUANCE OF OUTFITTER PERMIT.—

2 The issuance of an outfitter permit under subsection (a)

3 shall not adversely affect any right or obligation that ex4 isted under the permit, contract, or other authorization

5 (or an extension of the permit, contract, or other author6 ization) on the date of enactment of this Act.

7 SECTION 1. SHORT TITLE.

8 This Act may be cited as the ‘‘Outfitter Policy Act of

9 1999’’.

10 SEC. 2. FINDINGS.

11 Congress finds that—

12 (1) the experience, skills, trained staff, and in13 vestment in equipment that are provided by author14 ized outfitters are necessary for members of the public

15 that need or desire commercial outfitted activities to

16 facilitate their use and enjoyment of recreational or

17 educational opportunities on Federal land;

18 (2) such activities constitute an important con19 tribution toward meeting the recreational and edu20 cational objectives of resource management plans ap21 proved and administered by agencies of the Depart22 ment of Agriculture and the Department of the Inte23 rior;
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1 (3) an effective relationship between those agen2 cies and authorized outfitters requires implementation

3 of agency policies and programs that facilitate—

4 (A) (i) quality outfitting services to the

5 public; and

6 (ii) the authorized outfitter having a rea7 sonable opportunity to engage in a successful

8 business venture;

9 (B) a return to the United States through

10 appropriate fees;

11 (C) renewal of outfitter permits based on a

12 performance evaluation system that rewards out13 fitters that meet required performance standards

14 and withdraws authorizations for outfitters that

15 fail to meet those standards; and

16 (D) transfer of an outfitter permit to the

17 qualified purchaser of the operation of an au18 thorized outfitter, an heir or assign, or another

19 qualified person or entity; and

20 (4) the provision of opportunities for outfitted

21 visitors to Federal land to engage in fishing and

22 hunting is best served by continued recognition that

23 the States retain primary authority over the taking

24 of fish and wildlife on Federal land.
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1 SEC. 3. PURPOSES.

2 The purposes of this Act are—

3 (1) to establish terms and conditions for occu4 pancy and use of Federal land by an authorized out5 fitter; and

6 (2) to establish a stable regulatory climate that

7 encourages a qualified person or entity to provide,

8 and to continue to invest in the ability to conduct

9 outfitted activities on Federal land.

10 (3) to facilitate opportunities for recreational use

11 of public lands by that segment of the public that

12 needs or wants to use the services of outfitters and

13 guides.

14 SEC. 4. DEFINITIONS.

15 In this Act:

16 (1) ACTUAL USE.—The term ‘‘actual use’’ means

17 the portion of a principal allocation of outfitter use

18 that an authorized outfitter uses in conducting com19 mercial outfitted activities during a period, for a type

20 of use, in an area or based on some other measure21 ment.

22 (2) ALLOCATION OF USE.—

23 (A) IN GENERAL.—The term ‘‘allocation of

24 use’’ means a measurement of use that—

25 (i) is granted by the Secretary to an

26 authorized outfitter for the purpose of facili-
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1 tating the occupancy and use of Federal

2 land by an outfitted visitor;

3 (ii) takes the form of—

4 (I) an amount or type of commer5 cial outfitted activity resulting from

6 an apportionment of the total recre7 ation capacity of a resource area; or

8 (II) in the case of a resource area

9 for which recreation capacity has not

10 been apportioned, a type of commercial

11 outfitted activity conducted in a man12 ner that is not inconsistent with or in13 compatible with an approved resource

14 management plan; and

15 (iii) is calibrated in terms of amount

16 of use, type of use, or location of a commer17 cial outfitted activity, including user days

18 or portions of user days, seasons or other

19 periods of operation, launch dates, assigned

20 camps, hunt, gun or fish day or other for21 mulations of the type or amount of author22 ized activity.

23 (B) INCLUSION.—The term ‘‘allocation of

24 use’’ includes the designation of a geographic
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1 area, zone, or district in which a limited number

2 of authorized outfitters are authorized to operate.

3 (3) AUTHORIZED OUTFITTER.—The term ‘‘au4 thorized outfitter’’ means a person or entity that con5 ducts a commercial outfitted activity on Federal land

6 under an outfitter authorization.

7 (4) COMMERCIAL OUTFITTED ACTIVITY.—The

8 term ‘‘commercial outfitted activity’’ means an au9 thorized outfitted activity conducted on Federal

10 lands—

11 (A) that is available to the public;

12 (B) that is conducted under the direction of

13 compensated individuals; and

14 (C) for which an outfitted visitor is re15 quired to pay more than a strict sharing of ac16 tual expenses (including payment to an author17 ized outfitter that is a nonprofit organization).

18 (5) FEDERAL AGENCY.—The term ‘‘Federal agen19 cy’’ means—

20 (A) the Forest Service;

21 (B) the Bureau of Land Management;

22 (C) the United States Fish and Wildlife

23 Service; and

24 (D) the Bureau of Reclamation.

25 (6) FEDERAL LAND.—
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1 (A) IN GENERAL.—The term ‘‘Federal land’’

2 means all land and interests in land adminis3 tered by a Federal agency.

4 (B) EXCLUSION.—The term ‘‘Federal land’’

5 does not include—

6 (i) land held in trust by the United

7 States for the benefit of an Indian tribe or

8 individual; or

9 (ii) land held by an Indian tribe or in10 dividual subject to a restriction by the

11 United States against alienation.

12 (7) TEMPORARY OUTFITTER AUTHORIZATION.—

13 The term ‘‘temporary outfitter authorization’’ means

14 an outfitter authorization under section 6(f).

15 (8) LIVERY.—The term ‘‘livery’’ means the drop16 ping off or picking up of visitors, supplies, or equip17 ment on Federal land.

18 (9) OUTFITTED ACTIVITY.—The term ‘‘outfitted

19 activity’’ means an activity—

20 (A) such as outfitting, guiding, supervision,

21 education, interpretation, skills training, assist22 ance, or livery operation conducted for a member

23 of the public in an outdoor environment; and

24 (B) that uses the recreational, natural, his25 torical, or cultural resources of Federal land.
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1 (10) OUTFITTED VISITOR.—The term ‘‘outfitted

2 visitor’’ means a member of the public that engages

3 an authorized outfitter to facilitate occupancy and

4 use of Federal land.

5 (11) OUTFITTER.—The term ‘‘outfitter’’ means a

6 person or entity that conducts a commercial outfitted

7 activity, including a person who, by local custom or

8 tradition, is known as a ‘‘guide’’.

9 (12) OUTFITTER AUTHORIZATION.—The term

10 ‘‘outfitter authorization’’ means—

11 (A) an outfitter permit;

12 (B) a temporary outfitter authorization; or

13 (C) an authorization to use and occupy

14 Federal land that references this Act as its au15 thority.

16 (13) OUTFITTER PERMIT.—The term ‘‘outfitter

17 permit’’ means an outfitter permit under section 6.

18 (14) PRINCIPAL ALLOCATION OF OUTFITTER

19 USE.—The term ‘‘principal allocation of outfitter

20 use’’ means a grant by the Secretary in an outfitter

21 permit for an allocation of use to an authorized out22 fitter in accordance with section 9.

23 (15) RESOURCE AREA.—The term ‘‘resource

24 area’’ means a management unit that is described by

25 or contained within the boundaries of—
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1 (A) a national forest;

2 (B) an area of public land;

3 (C) a wildlife refuge;

4 (D) a congressionally designated area;

5 (E) a hunting zone or district; or

6 (F) any other Federal planning unit (in7 cluding an area in which outfitted activities are

8 regulated by more than one Federal agency).

9 (16) SECRETARY.—The term ‘‘Secretary’’

10 means—

11 (A) with respect to Federal land adminis12 tered by the Forest Service, the Secretary of Ag13 riculture, acting through the Chief of the Forest

14 Service or a designee;

15 (B) with respect to Federal land adminis16 tered by the Bureau of Land Management, the

17 Secretary of the Interior, acting through the Di18 rector of the Bureau of Land Management or a

19 designee;

20 (C) with respect to Federal land adminis21 tered by the United States Fish and Wildlife

22 Service, the Secretary of the Interior, acting

23 through the Director of the United States Fish

24 and Wildlife Service or a designee; and
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1 (D) with respect to Federal land adminis2 tered by the Bureau of Reclamation, the Sec3 retary of the Interior, acting through the Com4 missioner of Reclamation or a designee.

5 (17) TEMPORARY ALLOCATION OF USE.—The

6 term ‘‘temporary allocation of use’’ means an alloca7 tion of use to an authorized outfitter in accordance

8 with section 9.

9 SEC. 5. NONOUTFITTER USE AND ENJOYMENT.

10 Nothing in this Act is intended to diminish any right

11 or privilege of occupancy and use of Federal land by the

12 public including the non-outfitted visitor.

13 SEC. 6. OUTFITTER AUTHORIZATIONS.

14 (a) IN GENERAL.—

15 (1) PROHIBITION.—No person or entity, except

16 an authorized outfitter, shall conduct a commercial

17 outfitted activity on Federal land.

18 (2) CONDUCT OF OUTFITTED ACTIVITY.—An au19 thorized outfitter shall not conduct an outfitted activ20 ity on Federal land except in accordance with an out21 fitter authorization.

22 (3) SPECIAL RULE FOR ALASKA.—With respect

23 to a commercial outfitted activity conducted in the

24 State of Alaska, the Secretary shall not establish or

25 impose a limitation on special access by an author-
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1 ized outfitter that is inconsistent with the access en2 sured under subsections (a) and (b) of section 1110 of

3 the Alaska National Interest Lands Conservation Act

4 (16 U.S.C. 3170).

5 (b) TERMS AND CONDITIONS.—An outfitter authoriza6 tion shall specify—

7 (1) the rights and privileges of the authorized

8 outfitter and the Secretary; and

9 (2) other terms and conditions of the authoriza10 tion.

11 (c) CRITERIA FOR GRANT OF AN OUTFITTER PER12 MIT.—The Secretary shall establish criteria for grant of an

13 outfitter permit that—

14 (1) recognize skill, experience, knowledge of the

15 resource area and financial capability of the persons

16 or entity under consideration;

17 (2) consider any or all of the following: safety,

18 quality recreational experience, educational opportu19 nities and conservation of resources for the outfitted

20 visitor;

21 (3) offer a reasonable opportunity for an author22 ized outfitter to engage in a successful business ven23 ture;

24 (4) create a stable regulatory climate that en25 courages an authorized outfitter to provide and invest
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1 in the ability to provide quality services to the out2 fitted visitor;

3 (5) assure revenue paid to the United States pro4 vided this consideration is subordinate to the other

5 criteria of this subsection.

6 (d) GRANT.—

7 (1) IN GENERAL.—The Secretary may grant an

8 outfitter permit under this Act if—

9 (A) the commercial outfitted activity to be

10 authorized is not inconsistent with or incompat11 ible with an approved resource management

12 plan applicable to the resource area in which the

13 commercial outfitted activity is to be considered;

14 and

15 (B) the authorized outfitter meets the cri16 teria established under subsection (c)(1).

17 (2) USE OF COMPETITIVE PROCESS.—

18 (A) IN GENERAL.—Except as otherwise pro19 vided by this Act, the Secretary shall use a com20 petitive process to select an authorized outfitter.

21 (B) EXCEPTION FOR CERTAIN ACTIVITIES.—

22 The Secretary may grant an outfitter permit to

23 an applicant without conducting a competitive

24 selection process if the Secretary determines

25 that—
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1 (i) the applicant meets criteria estab2 lished by the Secretary under subsection (c);

3 and

4 (ii) there is no competitive interest in

5 the commercial outfitted activity to be con6 ducted.

7 (C) EXCEPTION FOR RENEWALS AND TRANS8 FERS.—The Secretary shall grant an outfitter

9 permit to an applicant without conducting a

10 competitive selection process if the authorization

11 is a renewal or transfer of an existing outfitter

12 permit under section 11 or 12.

13 (e) PROVISIONS OF OUTFITTER PERMITS.—

14 (1) IN GENERAL.—An outfitter permit shall pro15 vide for—

16 (A) the health and welfare of the public;

17 (B) conservation of resource values;

18 (C) a return to the United States through

19 an authorization fee in accordance with section

20 7;

21 (D) a term of 10 years except as provided

22 in (3) below;

23 (E) the obligation of an authorized outfitter

24 to defend and indemnify the United States in ac25 cordance with section 8;
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1 (F) a principal allocation of outfitter use,

2 and, if appropriate, a temporary allocation of

3 use, in accordance with section 9;

4 (G) a plan to conduct performance evalua5 tions in accordance with section 10;

6 (H) renewal or revocation of an outfitter

7 permit in accordance with section 11;

8 (I) transfer of an outfitter permit in accord9 ance with section 12;

10 (J) a means of modifying the terms and

11 conditions of an outfitter permit to reflect mate12 rial changes in facts and conditions;

13 (K) notice of a right of appeal and judicial

14 review in accordance with section 14; and

15 (L) such other terms and conditions as the

16 Secretary may require.

17 (2) EXTENSIONS.—The Secretary may award

18 not more than three temporary 1-year extensions of

19 an outfitter permit, unless the Secretary determines

20 that extraordinary circumstances warrant additional

21 extensions.

22 (3) TENURE.—The Secretary shall generally

23 issue an outfitter authorization for 10 years, with an

24 initial probation period of two years for a new au25 thorized outfitter, except that he may, in extraor-
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1 dinary circumstances, award an outfitter permit with

2 a term of less than 10 years when—

3 (A) foreseeable amendments in resource

4 management plans will create conditions that

5 would materially impact and necessitate changes

6 in permit terms and conditions in less than 10

7 years;

8 (B) an authorized outfitter and the Sec9 retary agree to a permit term of less than 10

10 years.

11 (f) TEMPORARY OUTFITTER AUTHORIZATIONS.—

12 (1) IN GENERAL.—The Secretary may issue a

13 temporary outfitter authorization for the purpose of

14 conducting a commercial outfitted activity on a lim15 ited basis.

16 (2) TERM.—A temporary outfitter authorization

17 shall have a term not to exceed 2 years.

18 (3) RENEWAL.—A temporary outfitter authoriza19 tion may be reissued or renewed at the discretion of

20 the Secretary.

21 SEC. 7. AUTHORIZATION FEES.

22 (a) AMOUNT OF FEE.—

23 (1) IN GENERAL.—An outfitter permit shall pro24 vide for payment to the United States of an author25 ization fee, as determined by the Secretary.
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1 (2) FEE DETERMINATION.—In determining the

2 amount of an authorization fee, the Secretary shall

3 take into consideration—

4 (A) the obligations of the outfitter under the

5 outfitter permit;

6 (B) the provision of a reasonable oppor7 tunity to engage in a successful business; and

8 (C) the fair market value of the use and oc9 cupancy granted by the outfitter authorization.

10 (b) CONSISTENCY.—The Federal agencies shall use con11 sistent methodologies to determine the outfitter authoriza12 tion fee.

13 (c) PAYMENT OF OUTFITTER AUTHORIZATION FEE.—

14 (1) IN GENERAL.—The amount of the fee paid to

15 the United States for the term of an outfitter permit

16 shall be specified in that outfitter permit.

17 (2) REQUIREMENTS.—The amount of the author18 ization fee—

19 (A)(i) shall be expressed as—

20 (I) a simple charge per day of actual

21 use; or

22 (II) an annual or seasonable flat fee;

23 (ii) if calculated as a percentage of revenue,

24 shall be determined based on adjusted gross re25 ceipts; or
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1 (iii) with respect to a commercial outfitted

2 activity conducted in the State of Alaska, shall

3 be based on a simple charge per user day;

4 (B) shall be subordinate to the objectives

5 of—

6 (i) conserving resources;

7 (ii) protecting the health and welfare

8 of the public; and

9 (iii) providing reliable, consistent per10 formance in conducting outfitted activities;

11 and

12 (C) shall be required to be paid by an au13 thorized outfitter to the United States on a rea14 sonable schedule during the operating season;

15 and

16 (D) shall set a minimum fee.

17 (3) ADJUSTED GROSS RECEIPTS.—For the pur18 pose of paragraph (2)(A)(ii), the Secretary shall—

19 (A) take into consideration revenue from the

20 gross receipts of the authorized outfitter from

21 commercial outfitted activities conducted on Fed22 eral land; and

23 (B) exclude from consideration any revenue

24 that is derived from—
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1 (i) fees paid by the authorized outfitter

2 to any unit of Federal, State, or local gov3 ernment for—

4 (I) hunting or fishing licenses;

5 (II) entrance or recreation fees; or

6 (III) other purposes (other than

7 commercial outfitted activities con8 ducted on Federal land);

9 (ii) goods and services sold to outfitted

10 visitors that are not within the scope of au11 thorized outfitter activities conducted on

12 Federal land; or

13 (iii) operations on non-Federal land.

14 (4) SUBSTANTIALLY SIMILAR SERVICES IN A SPE15 CIFIC GEOGRAPHIC AREA.—

16 (A) IN GENERAL.—Except as provided in

17 subparagraph (B), if more than 1 outfitter per18 mit is granted to conduct the same or similar

19 commercial outfitted activities in the same re20 source area, the Secretary shall establish an

21 identical fee for those outfitter permits.

22 (B) EXCEPTION.—The terms and conditions

23 of an existing outfitter permit shall not be sub24 ject to modification or open to renegotiation by

25 the Secretary because of the grant of a new out-
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1 fitter permit in the same resource area for the

2 same or similar commercial outfitted activities.

3 (5) ACTUAL USE.—

4 (A) IN GENERAL.—For the purpose of calcu5 lating an authorization fee for actual use under

6 paragraph (2)(A)(I)(I)—

7 (i) multiple outfitted activities with

8 separate charges shall count as one actual

9 use day when conducted in one day; and

10 (ii) an activity conducted across agen11 cy jurisdictions over the course of one day

12 shall not exceed one actual use day.

13 (B) RECONSIDERATION OF FEE.—The au14 thorization fee may be reconsidered during the

15 term of the outfitter permit in accordance with

16 paragraph (6) or section 9(c)(3).

17 (6) ADJUSTMENT OF FEES.—The amount of an

18 authorization fee—

19 (A) shall be determined as of the grant date

20 of the outfitter permit; and

21 (B) may be modified to reflect—

22 (i) changes relating to the terms and

23 conditions of the outfitter permit, including

24 one or more outfitter permits described in

25 paragraph (5);
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1 (ii) extraordinary unanticipated

2 changes affecting operating conditions, such

3 as natural disasters, economic conditions,

4 or other material adverse changes from the

5 terms and conditions specified in the out6 fitter permit;

7 (iii) changes affecting operating or eco8 nomic conditions determined by other gov9 erning entities, such as the availability of

10 State fish or game licenses;

11 (iv) the imposition of new or higher

12 fees assessed under other law; or

13 (v) authorized adjustments made to an

14 allocation of outfitter use.

15 (d) ESTABLISHMENT OF AMOUNT APPLICABLE TO A

16 TEMPORARY OUTFITTER AUTHORIZATION.—The Secretary

17 shall determine the amount of an authorization fee under

18 a temporary outfitter authorization.

19 (e) OTHER FEES AND COSTS.—Fees for processing ap20 plications for outfitter permits or monitoring compliance

21 with permit terms and conditions shall not seek to recover

22 costs of agency activities that benefit broadly the general

23 public or are not directly related to or required for proc24 essing of applications or monitoring of an authorization.
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1 SEC. 8. LIABILITY AND INDEMNIFICATION.

2 (a) LIABILITY.—An authorized outfitter shall be liable

3 to the United States for costs and expenses associated with

4 damage to property of the United States caused by the au5 thorized outfitter’s—

6 (1) negligence,

7 (2) gross negligence, or

8 (3) willful and wanton disregard for persons or

9 property,

10 arising directly out of the authorized outfitter’s conduct of

11 a commercial outfitted activity under an outfitter author12 ization.

13 (b) INDEMNIFICATION.—An authorized outfitter shall

14 defend and indemnify the United States for costs or ex15 penses associated with injury, death, or damage to any per16 son or property caused by the authorized outfitter’s—

17 (1) negligence,

18 (2) gross negligence, or

19 (3) willful and wanton disregard for persons or

20 property,

21 arising proximately from the authorized outfitter’s conduct

22 of a commercial outfitted activity under an outfitter au23 thorization.

24 (c) NO LIABILITY.—An authorized outfitter shall have

25 no responsibility to pay to or defend or indemnify the

26 United States, or its agents, employees, or contractors for
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1 costs or expenses associated with injury, death, or damage

2 to any person or property to the extent the injury, death,

3 or damage was caused by the acts, omissions, negligence,

4 gross negligence, or willful and wanton misconduct of the

5 United States, its agents, employees, or contractors; or third

6 parties.

7 (d) FINDING OF LIABILITY.—Before presenting any

8 claim for costs and expenses associated with damage to any

9 property allegedly caused by the authorized outfitter, the

10 Secretary, after providing due process, shall make a finding

11 of negligence, gross negligence, or willful and wanton dis12 regard for persons or property on the part of the authorized

13 outfitter and present the finding to the authorized outfitter.

14 (e) AGREEMENTS.—An authorized outfitter may enter

15 into agreements with outfitted visitors, including for (i) as16 sumption or allocation of risk, and (ii) release or waiver

17 related to inherently dangerous activities or conditions, if

18 the agreement also runs in favor of the United States and

19 its agents, employees, or contractors. Copies of any such

20 agreements shall be provided to the Federal agency before

21 being presented to outfitted visitors by an authorized out22 fitter.

23 SEC. 9. ALLOCATION OF USE.

24 (a) IN GENERAL.—
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1 (1) an outfitter permit shall include within its

2 terms and conditions a principal allocation of out3 fitter use; and

4 (2) a temporary outfitter permit may include a

5 principal allocation of outfitter use.

6 (b) RENEWALS, TRANSFERS, AND EXTENSIONS.—Ex7 cept as provided in (d), upon renewal, transfer, or extension

8 of an outfitter permit, the same principal allocation of use

9 shall be included within the terms and conditions of the

10 permit.

11 (c) WAIVER.—

12 (1) IN GENERAL.—At the request of an author13 ized outfitter, the Secretary may waive any obligation

14 of the authorized outfitter to use all or part of the

15 amount of allocation of use provided under the out16 fitter permit, subject to section 7(b), if the request is

17 made in sufficient time to allow the Secretary to tem18 porarily reallocate the unused portion of the alloca19 tion of use in that season or calendar year.

20 (2) RECLAIMING OF ALLOCATION OF USE.—Un21 less the Secretary has reallocated the unused portion

22 of an allocation of use in accordance with paragraph

23 (1), the authorized outfitter may reclaim any part of

24 the unused portion in that season or calendar year.
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1 (3) NO FEE OBLIGATION.—Subject to section

2 7(b), an outfitter permit fee may not be charged for

3 any amount of allocation of use subject to a waiver

4 under paragraph (1).

5 (d) ADJUSTMENT TO ALLOCATION OF USE.—The

6 Secretary—

7 (1) may adjust an allocation of use to reflect—

8 (A) material change arising from approval

9 of an amendment in the resource management

10 plan for the area of operation; or

11 (B) requirements arising under other law;

12 and

13 (2) shall provide an authorized outfitter with

14 documentation supporting the basis for any adjust15 ment in the principal allocation of outfitter use, in16 cluding new terms and conditions that result from the

17 adjustment.

18 (e) TEMPORARY ALLOCATION OF USE.—

19 (1) IN GENERAL.—A temporary allocation of use

20 may be provided to an authorized outfitter at the dis21 cretion of the Secretary for a period up to 2 years.

22 (2) TRANSFERS AND EXTENSIONS.—A temporary

23 allocation of use may be, transferred, or extended at

24 the discretion of the Secretary.
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1 SEC. 10. EVALUATION OF PERFORMANCE UNDER OUT2 FITTER PERMITS.

3 (a) EVALUATION PROCESS.—

4 (1) IN GENERAL.—The Secretary shall develop a

5 process for annual evaluation of the performance of

6 an authorized outfitter in conducting a commercial

7 outfitted activity under an outfitter permit.

8 (2) EVALUATION CRITERIA.—Criteria used by

9 the Secretary to evaluate the performance of an au10 thorized outfitter shall—

11 (A) be objective, measurable, and attainable;

12 and

13 (B) include as deemed appropriate by the

14 Secretary—

15 (i) standards generally applicable to

16 all commercial outfitted activities;

17 (ii) standards specific to a resource

18 area or an individual outfitter operation;

19 and

20 (iii) such other terms and conditions of

21 the outfitter permit.

22 (3) REQUIREMENTS.—In evaluating the level of

23 performance of an authorized outfitter, the Secretary

24 shall—

25 (A) appropriately account for factors be26 yond the control of the authorized outfitter, in-
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1 cluding conditions described in section

2 7(b)(6)(B) and 9(c);

3 (B) ensure that the effect of any perform4 ance deficiency reflected by the performance rat5 ing is proportionate to the severity of the defi6 ciency, including any harm that may have re7 sulted from the deficiency; and

8 (b) LEVELS OF PERFORMANCE.—The Secretary shall

9 define 3 levels of performance, as follows:

10 (1) Good, indicating a level of performance that

11 fulfills the terms and conditions of the outfitter per12 mit.

13 (2) Marginal, indicating a level of performance

14 that, if not corrected, will result in an unsatisfactory

15 level of performance.

16 (3) Unsatisfactory, indicating a level of perform17 ance that fails to fulfill the terms and conditions of

18 the outfitter permit.

19 (c) PERFORMANCE EVALUATION.—

20 (1) EVALUATION SYSTEM.—The Secretary shall

21 establish a performance evaluation system that

22 assures the public of continued availability of depend23 able commercial outfitted activities and suspends or

24 revoke an authorization for an authorized outfitter

25 that fails to meet the required standards.
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1 (2) PROCEDURE.—An authorized outfitter shall

2 be entitled—

3 (A) to be present, or represented, at inspec4 tions of operations or facilities, which inspec5 tions shall be limited to the operations and fa6 cilities of the authorized outfitter located on Fed7 eral land;

8 (B) to receive written notice of any conduct

9 or condition that, if not corrected, might lead to

10 a performance evaluation of marginal or unsat11 isfactory, which shall include an explanation of

12 needed corrections and provide a reasonable pe13 riod in which the corrections may be made with14 out penalty; and

15 (C) to receive written notice of the results of

16 the performance evaluation not later than 60

17 days after the conclusion of the authorized outfit18 ter’s operating season, including the level of per19 formance and the status of corrections that may

20 have been required.

21 (d) MARGINAL PERFORMANCE.—If an authorized out22 fitter’s annual performance is determined to be marginal,

23 and the authorized outfitter fails to complete the corrections

24 within the time specified under subsection (c)(2)(B), the
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1 level of performance shall be determined to be unsatisfactory

2 for the year.

3 (e) DETERMINATION OF ELIGIBILITY FOR RENEWAL.—

4 (1) IN GENERAL.—The results of all annual per5 formance evaluations of an authorized outfitter shall

6 be reviewed by the Secretary in the year preceding the

7 year in which the outfitter permit expires to deter8 mine whether the authorized outfitter’s overall per9 formance during the term has met the requirements

10 for renewal under section 11.

11 (2) FAILURE TO EVALUATE.—If, in any year of

12 the term of an outfitter permit, the Secretary fails to

13 evaluate the performance of the authorized outfitter by

14 the date that is 60 days after the conclusion of the au15 thorized outfitter’s operating season, the performance

16 of the authorized outfitter in that year shall be con17 sidered to have been good.

18 (3) NOTICE.—Not later than 60 days after the

19 end of the year preceding the year in which an out20 fitter permit expires, the Secretary shall provide the

21 authorized outfitter with the cumulative results of

22 performance evaluations conducted under this sub23 section during the term of the outfitter permit.

24 (4) UNSATISFACTORY PERFORMANCE IN FINAL

25 YEAR.—If an authorized outfitter receives an unsatis-
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1 factory performance rating under subsection (d) in

2 the final year of the term of an outfitter permit, the

3 review and determination of eligibility for renewal of

4 the outfitter permit under paragraph (1) shall be re5 vised to reflect that result.

6 SEC. 11. RENEWAL REVOCATION OR SUSPENSION OF OUT7 FITTER PERMITS.

8 (a) RENEWAL AT EXPIRATION OF TERM.—

9 (1) IN GENERAL.—On expiration of the term of

10 an outfitter authorization, the Secretary shall renew

11 the authorization in accordance with paragraph (2).

12 (2) DETERMINATION BASED ON ANNUAL PER13 FORMANCE RATING.—The Secretary shall renew an

14 outfitter authorization under paragraph (1) at the re15 quest of the authorized outfitter and subject to the re16 quirements of this Act if the Secretary determines

17 that the authorized outfitter has received not more

18 than 1 unsatisfactory annual performance rating

19 under section 10 during the term of the outfitter per20 mit.

21 (b) REVOCATION.—An outfitter permit may be revoked

22 only if the Secretary determines that—

23 (1) the authorized outfitter has failed to correct

24 a condition for which the authorized outfitter received

25 notice under section 10(c)(2)(B) and the condition is
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1 considered by the Secretary to be significant with re2 spect to permit terms and conditions;

3 (2) the authorized outfitter is in arrears in the

4 payment of fees under section 7; and

5 (A) has not entered into a payment plan

6 with the agency; or

7 (B) has not sought relief subject to section

8 14.

9 (3) the authorized outfitter’s conduct dem10 onstrates willful disregard for—

11 (A) the health and welfare of outfitted visi12 tors; or

13 (B) the conservation of resources on which

14 the commercial outfitted activities are conducted.

15 (c) SUSPENSION.—

16 (1) IN GENERAL.—All or part of the outfitter

17 permit may be suspended, subject to findings made

18 under subsection (b).

19 (2) ADMINISTRATIVE REVIEW.—Subject to section

20 17 the Secretary shall provide for an expedited review

21 of suspension cases.

22 SEC. 12. TRANSFERABILITY OF OUTFITTER PERMITS.

23 (a) IN GENERAL.—An outfitter permit shall not be

24 transferred (including assigned or otherwise conveyed or
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1 pledged) by the authorized outfitter without prior written

2 notification to, and approval by, the Secretary.

3 (b) APPROVAL.—

4 (1) IN GENERAL.—The Secretary shall approve a

5 transfer of an outfitter permit unless the Secretary

6 finds that the transferee is not qualified or able to

7 satisfy the terms and conditions of the outfitter per8 mit.

9 (2) QUALIFIED TRANSFEREES.—Subject to sec10 tion 6(d)(1), the Secretary shall approve a transfer of

11 an outfitter permit—

12 (A) to a purchaser of the operation of the

13 authorized outfitter;

14 (B) at the request of the authorized out15 fitter, to an assignee, partner, or stockholder or

16 other owner of an interest in the operation of the

17 authorized outfitter; or

18 (C) on the death of the authorized outfitter,

19 to an heir or assign.

20 (c) TRANSFER TERMS.—The terms and conditions of

21 any outfitter permit shall not be subject to modification or

22 open to renegotiation by the Secretary because of a transfer

23 described in subsections (1) and (b) unless—

24 (1) it is at the request of the transferee; or
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1 (2) the terms and conditions of the outfitter per2 mit proposed to be transferred have become incon3 sistent or incompatible with an approved resource

4 management plan for the resource area.

5 (d) CONSIDERATION PERIOD.—

6 (1) THRESHOLD FOR AUTOMATIC APPROVAL.—

7 Subject to paragraph (2), if the Secretary fails to ap8 prove or disapprove the transfer of an outfitter permit

9 within 90 days after receiving a complete application

10 containing the information required with respect to

11 the transfer, the transfer shall be deemed approved

12 unless the transferee requests a modification of terms

13 and conditions of the outfitter authorization and such

14 modifications require environmental analysis under

15 the National Environmental Policy Act.

16 (2) EXTENSION.—The Secretary and the author17 ized outfitter applying for transfer of an outfitter per18 mit may agree to extend the period for consideration

19 of the application.

20 (e) CONTINUANCE OF OUTFITTER PERMIT.—If the

21 transfer of an outfitter permit is not approved by the Sec22 retary or if the transfer is not subsequently made, the out23 fitter permit shall remain in effect.
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1 SEC. 13. RECORDKEEPING REQUIREMENTS.

2 (a) IN GENERAL.—An authorized outfitter shall keep

3 such reasonable records as the Secretary may require to en4 able the Secretary to determine that all the terms of the

5 outfitter authorization are being met.

6 (b) OBLIGATIONS OF THE SECRETARY AND AUTHOR7 IZED OUTFITTER.—The recordkeeping requirements estab8 lished by the Secretary shall incorporate simplified proce9 dures that do not impose an undue burden on an authorized

10 outfitter.

11 (c) ACCESS TO RECORDS.—The Secretary, or an au12 thorized representative of the Secretary, shall for purposes

13 of audit and performance evaluation have access to and the

14 right to examine for five years following the effective date

15 of an outfitter authorization any books, papers, documents,

16 and records of the authorized outfitter relating to each out17 fitter authorization held by the authorized outfitter during

18 the business year.

19 SEC. 14. APPEALS AND JUDICIAL REVIEW.

20 (a) APPEALS PROCEDURE.—The Secretary shall by

21 regulation—

22 (1) grant an authorized outfitter full access to

23 administrative remedies, and

24 (2) establish an expedited procedure for consider25 ation of appeals of Federal agency decisions to deny,

26 suspend, fail to renew, or revoke an outfitter permit.
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1 (b) JUDICIAL REVIEW.—An authorized outfitter that

2 is adversely affected by a final decision of the Secretary

3 under this Act may commence a civil action in United

4 States district court.

5 SEC. 15. LACK OF EFFECT ON EXISTING RIGHTS OF THE

6 UNITED STATES.

7 Nothing in this Act limits or restricts any right, title,

8 or interest of the United States in or to any land or re9 source.

10 SEC. 16. REGULATIONS.

11 Not later than 2 years after the date of enactment of

12 this Act, the Secretary shall promulgate such regulations

13 as are appropriate to carry out this Act.

14 SEC. 17. RELATIONSHIP TO OTHER LAW.

15 (a) NATIONAL PARK OMNIBUS MANAGEMENT ACT OF

16 1998.—Nothing in this Act supersedes or otherwise affects

17 any provision of title IV of the National Park Omnibus

18 Management Act of 1998 (16 U.S.C. 5951 et seq.).

19 (b) STATE OUTFITTER LICENSING LAW.—This Act

20 does not preempt any outfitter or guide licensing law (in21 cluding any regulation) of any State or territory.

22 SEC. 18. TRANSITION PROVISIONS.

23 (a) OUTFITTERS WITH SATISFACTORY RATING.—An

24 outfitter that holds a permit, contract, or other authoriza25 tion to conduct commercial outfitted activities (or an exten-
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1 sion of such permit, contract, or other authorization) in ef2 fect on the date of promulgation of implementing regula3 tions under section 16 shall be entitled, on expiration of

4 the authorization, to the issuance of an outfitter permit

5 under this Act if the outfitter’s aggregate performance under

6 the permit, contract, or other authorization was good or was

7 the equivalent of good, satisfactory, or acceptable under a

8 rating system in use before the date of enactment of this

9 Act.

10 (b) OUTFITTERS WITH NO RATINGS.—For the purpose

11 of subsection (a), if no recent performance evaluations exist

12 to determine the outfitter’s aggregate performance its aggre13 gate performance shall be deemed to be good.

14 (c) EFFECT OF ISSUANCE OF OUTFITTER PERMIT.—

15 The issuance of an outfitter permit under subsection (a)

16 shall not adversely affect any right or obligation that ex17 isted under the permit, contract, or other authorization (or

18 an extension of the permit, contract, or other authorization)

19 on the date of enactment of this Act.

Calendar No. 940

106TH CONGRESS

2D SESSION S. 1969

[Report No. 106–491]

A BILL

To provide for improved management of, and increased accountability for, outfitted activities by

which the public gains access to and occupancyand use of Federal land, and for other purposes.

OCTOBER 5 (legislative day, SEPTEMBER 22), 2000

Reported with an amendment